Lloyd's Maritime and Commercial Law Quarterly
Book reviews
Wolfgang Ernst
Regius Professor of Civil Law
All Souls College
University of Oxford
GERMAN CIVIL CODE: Bürgerliches Gesetzbuch (BGB), Volume I: Books 1–3: §§ 1–1296: Article-by-Article Commentary. Edited by Gerhard Dannemann, Professor of English Law, British Politics and Economy, Humboldt University, Berlin, and Reiner Schulze, emeritus Professor of German and European Civil Law, University of Münster; assistant editor Jonathan Watson. CH Beck, Munich, and Nomos, Baden-Baden (2020) xxviii and 2128 pp. plus 194 pp. Index. Hardback
It is not unusual for statutes or codes to separate regulation according to different levels of abstraction. For example, one finds, on the one hand, general provisions for all contracts and, on the other, provisions for specific types of contract. The German Civil Code (Bürgerliches Gesetzbuch, henceforth “BGB”) takes this design to extremes.
Let us take the most pedestrian of transactions. You buy an appliance online, for which the seller has offered payment in three instalments. Two weeks after delivery, the appliance breaks down. The making of the contract is regulated in a set of provisions governing contract-making in general (§§ 145–151); these we find in the general part, or Book I, which covers legal transactions of all sorts. However, as a modification, we must look at a provision for distance-selling contracts (§ 312c), found in the general part of the law of obligations. But wait! We must not forget that the postponement of payment brings the contract under the regulation for consumer credit. Here starts a string of paragraphs, beginning with § 506 (placed in the law of financial loans), which is not given in full here, to avoid making the reader dizzy. To check whether the buyer qualifies as a consumer, we revert to § 13, a provision in the general part. It may well be that the buyer does not need to rely on the defect at all in order to rescind his contract. Details are set out in § 355.
Turning to the appliance’s defectiveness, we find the buyer’s remedies set out in a neat overview in § 437, a provision in the middle of the law of sales. These have to be set aside insofar as special provisions are given for the purchase of consumer goods (§§ 474–479), systematically classified as a sub-type of the sales contract. If the first instalment has already been paid and the buyer claims it back, we shall be taken from § 439 to § 323 and on to §§ 346–354. These last provisions regulate how money received and goods delivered are subject to restitution in the event that the contract is rescinded. Should the buyer also
694