The German Civil Code (BGB)

Abstract

Abstract Although work on the civil code started immediately after the German Confederation had finished legislating, planning was hampered by the fact that the only field in which the Empire had legislative competence under the Con stitution of the North German Federation and that of the Bismarckian Empire as originally drafted was the law of obligations. It was the national liberals, the dominant party in the Reichstag of 1871, who with their drive for unification procured that the Empire acquired power to legislate in the fields of land law, family law, and the law of associations. This notable victory of the progressive liberals over the reservations of the conservatives determined the thrust of codification, but it took four attempts before Lasker and Miquel, the principal pro ponents, managed to overcome the votes of the conservatives and the centrist party (which rightly feared a conflict with the Church over marriage), and obtained an amendment to art. 4 no. 13 which extended legislative competence to the whole of private law. This law of 20 December 1873 made a national civil code possible. Behind the decision lay political considerations: the state was interested in law which liberated associations and corporations, the liberals wanted civil marriage outside the Church, a matter which was already threatening to be conflictual (the Kulturkampf), and the economic liberals wanted a generally applicable law which increased the mobility of land and facilitated mortgages. Only now did the liberals gain the upper hand in the areas of land law, family property, and succession, so crucial for the whole social order. The North Ger man (now Imperial) Trade Ordinance of 1869 had opted for freedom of trade and profession, so the decision was now really inevitable.