E.
Scholars
The Civil Law Tradition
Scholars
We have seen that the role of the civil law judge is generally thought to be much more
restricted and modest than that of the common law judge. It is reasonable to speak of the
common law as a law of the judges, but no one would think of using such terms in speaking of
the civil law. The image of the Roman iudex, the alleged abuses perpetrated by judges under the
old regime, and the conception of the role of judges that emerged in France during the revolution
converge to limit what judges are supposed to do. Legislative positivism, the dogma of the
separation of powers, the ideology of codification, the attitude toward interpretation of statutes,
the peculiar emphasis on certainty, the denial of inherent equitable power in the judge, and the
rejection of the doctrine of stare decisis-all these tend to diminish the judge and to glorify the
legislator.
From this, one might suppose that the protagonist of the legal process in the civil law
tradition is the legislator. Indeed, it was hoped for a time that the legislature would produce
bodies of law that were complete, coherent, and clear, so that interpretation would be
unnecessary. The retreat from the dogma of legislative infallibility has been a slow, grudging
one. Although it is now admitted that civil law courts have an interpretive function, the fiction is
still maintained that in performing that function the judge does not create law, but merely seeks
and follows the expressed or implied intent of the legislator. All this suggests that the civil law
legislator occupies the dominant position held in the common law tradition by the judge. For
brief periods in the history of the civil law tradition this may have been true, but the legislators
soon found themselves again in the shadow of the men who were primarily responsible for the
theory of the modern nation-state, for the doctrines of legislative positivism and the separation of
powers, for the form, style and content of codification, and for the dominant view of the nature
of the judicial function. The teacher-scholar is the real protagonist of the civil law tradition. The
civil law is a law of the professors.
By way of contrast, although the influence of law professors and legal scholarship may
be growing in the United States, judges still exercise the most important influence in shaping the
growth and development of the American legal system. Moreover, the prevailing ideology
assumes that they play this role, and they themselves are conscious of what is expected of them.
The tradition of the scholar as an important force in the development of the common law is very
recent and still, comparatively, very weak. The common law is still a law of the judges
The preeminence of the scholar in the civil law tradition is very old. The Roman
jurisconsult-who advised the praetor and the judge, was recognized as an expert on the law, but
had no legislative or judicial responsibility-is considered to be the founder of this scholarly
tradition. His opinions had great weight, and during the second century A. D. the opinions of
certain jurisconsults were binding on judges. Their opinions were written down, collected, and
treated as authoritative. Much of the most important part of Justinian's Corpus Juris Civilis-parts
of the Digest and all of the Institutes-is made up of the work of jurisconsults.
After the revival of Roman law in Italy, those responsible for the revival and
development of the medieval jus commune were scholars. The work of the Glossators and the
Commentators, added to Justinian's Corpus Juris Civilis, made up the body of Roman law
received throughout Western Europe. During this period the responses of scholars to questions of
law were in some places given binding authority in courts, a practice analogous to the use made
of jurisconsults during the classical period of Roman law. For a time in Germany, for example,
cases were frequently sent by courts to law faculties for decision. Many of the codes drafted in
Europe and in Latin America during the nineteenth century were the work of scholars, and all
were based on the writings of earlier generations of scholars. The great debate about codification
in Germany was begun and conducted by scholars. In Italy, which is in many ways the
archetypal civil law jurisdiction, several recent prime ministers and presidents have been law
professor-scholars.
It is instructive to reexamine the role of scholars in the two great legislative periods in the
history of the civil law tradition-that of Justinian and that of codification in the nineteenth
century. It will be recalled that Justinian was much concerned with the work of scholars. The
accumulated mass of writing about the law was, in his view, a source of unnecessary confusion
and difficulty. He did not, however, propose to abolish the authority of all the jurisconsults.
Instead, he wished to select from the existing mass of legal scholarship whatever was worthy of
preservation. This was one of the assignments he gave to the commission appointed to compile
the Corpus Juris Civilis, a commission composed entirely of scholars. The Digest, which is the
largest and most important part of the Corpus Juris Civilis, is in large part a compilation of the
work of Roman legal scholars. The Institutes, another part of the Corpus Juris Civilis, is basically
a textbook on Roman law written by scholars of the classical period.
Even the French codification movement relied heavily on the work of scholars, although
Napoleon himself took an active part in its preparation and enactment. The actual work of
drafting the French codes was put into the hands of commissions composed of practicing lawyers
and judges; but these commissions were dominated by the work of scholars (particularly that of
Robert Pothier), and the changes made in their drafts by the legislature were merely minor
variations within the commissioners' grand scholarly design. A large part of the ideology of
French codification came from scholarly and philosophical sources, including the works of men
like Montesquieu and Rousseau. This ideology later dominated the interpretation and application
of the codes in France and was adopted in civil law nations that drafted their codes on the lines
of the French model, again under the influence of men of learning (e.g. the Latin American
Andres Bello). The German codification, as we shall see, was even more thoroughly dominated
by scholars.
Why, then, the curious ambivalence of the legislator toward the scholar? Why, for
example, did Justinian forbid the preparation of commentaries on the Corpus Juris Civilis? One
can only guess. His desire to restore the classical Roman law of an earlier, greater period may
have been accompanied by the fear that commentaries prepared during his lifetime or at some
subsequent time would be of a lower quality. Like much of the work excluded from the Corpus
Juris Civilis, they would be inferior to the scholarship of the classical period. A second
possibility is that Justinian thought that his compilation represented perfection, so that any
commentary could only detract from its merit. Third, as Emperor of the Roman Empire, Justinian
saw the Corpus Juris Civilis, officially promulgated by him, as the reigning body of law for the
empire and believed that commentaries on his legislation might tend to impair its authority.
Justinian's prohibition against the publication of commentaries was, of course, ignored during his
lifetime.
Although he did not attempt to forbid them, Napoleon hoped that no commentaries on his
civil code would be published. This hope, like Justinian's command, was ineffectual. According
to a well-worn story, his reaction when he was informed that the first commentary had been
published was to exclaim: "My code is lost." One reason for such a statement was the illusion
that the code was so clear, complete, and coherent that commentaries on it were superfluous.
Another was the fear that, once the code fell into the hands of legal scholars, its usefulness as a
popular law book for the French citizen would be diminished. Another may have been
apprehension about the tendency of scholars to think in conservative, historical terms. Napoleon
wanted his code to transcend the old regional divisions and to provide the basis for a completely
new legal order. All prior law on topics covered by the code was repealed, but the new law had
to be protected against interpretation according to pre-revolutionary legal ideas in order to make
that repeal effective. Scholars were unlikely to agree with the patriotic lawyer who was quoted as
saying: "I know nothing of the civil law; I know only the Code Napoleon."
Thus both Justinian and Napoleon called on prominent jurists to carry out the very
complicated task of drafting far-reaching legal reforms. But they feared the influence of scholars
on their reforms. Other evidences of legislative distrust of legal scholarship frequently crop up in
the civil law world. In contemporary Italy, for example, the legislature has told the courts that
they may not cite books and articles in their opinions. Therefore Italian judges, who are heavily
influenced by legal scholarship, employ the ideas suggested to them by scholars without citing
them, and refer in a very general way to "the doctrine," which is the civil law term for books and
articles written by legal scholars. This easy circumvention of the Italian parliament's command is
merely another example of the futility of legislative attempts to eliminate or even reduce the
influence of the scholar in the civil law world. Despite legislative efforts to dam it, the great river
of legal scholarship in the civil law tradition moves on, providing the ideology and the basic
content of legislation and eventually engulfing it.
We begin to understand the true importance of the civil law scholar when we look at a
typical book on Continental legal history. Much of what is called legal history in the civil law
tradition is baffling to the common lawyer who first approaches it. He is used to thinking of legal
history as an account of legal rules and institutions in their historical, economic, and social
contexts. The legal history he reads is full of great cases, occasional statutes, and historical
events. But when he picks up a book on legal history in the civil law tradition, he is likely to find
the bulk of it devoted to a discussion of schools of legal thought and of disputes between legal
scholars and their followers. He will read about the Glossators, the Commentators, the
Humanists, about the differences among the French scholars of the eighteenth century, and about
the debate between Savigny and Anton Thibaut on codification in Germany. All in all, it is a
peculiar form of intellectual history, almost entirely divorced from socioeconomic history on the
one hand, and from discussion of the origin and development of specific legal institutions on the
other. The protagonist of this form of legal history is the legal scholar, and its subject matter is
currents of thought about the structure and operation of the legal order.
This is what we mean when we say that the legal scholar is the great man of the civil law.
Legislators, executives, administrators, judges, and lawyers all come under his influence. He
molds the civil law tradition and the formal materials of the law into a model of the legal system.
He teaches this model to law students and writes about it in books and articles. Legislators and
judges accept his idea of what law is, and, when they make or apply law, they use concepts he
has developed. Thus although legal scholarship is not a formal source of law, the doctrine carries
immense authority.
In the United States, where the legislature is also theoretically supreme, there is a wellknown saying (originated by a judge) that the law is what the judges say it is. This is, properly
understood, a realistic statement of fact. The judge has to decide how to characterize a legal
problem presented to him, which principles of law to apply to the problem, and how to apply
them in order to arrive at a result. Whether the principles he chooses are embodied in legislation
or in prior decisions, they achieve substantive meaning only in the context of a specific problem,
and the meaning attributed to them in that context is necessarily the meaning supplied by the
judge. In a similar sense it is reasonably accurate to say that the law in a civil law jurisdiction is
what the scholars say it is.
______________________________
Appendix
Gladys Escola, Respondent, V. Coca Cola Bottling Company of Fresno (A Corporation), Appellant
Supreme Court of California
24 Cal. 2d 453; 150 P.2d 436; 1944 Cal. LEXIS 248
July 5, 1944
CHIEF JUSTICE GIBSON
the "fracture line" where the bottle broke in two.
Plaintiff, a waitress in a restaurant, was injured
when a bottle of Coca Cola broke in her hand. She
alleged that defendant company, which had bottled and
delivered the alleged defective bottle to her employer,
was negligent in selling "bottles containing said beverage
which on account of excessive pressure of gas or by
reason of some defect in the bottle was dangerous . . .
and likely to explode." This appeal is from a judgment
upon a jury verdict in favor of plaintiff.
One of defendant's drivers, called as a witness by
plaintiff, testified that he had seen other bottles of Coca
Cola in the past explode and had found broken bottles in
the warehouse when he took the cases out, but that he did
not know what made them blow up.
Defendant's driver delivered several cases of Coca
Cola to the restaurant, placing them on the floor, one on
top of the other, under and behind the counter, where
they remained at least thirty-six hours. Immediately
before the accident, plaintiff picked up the top case and
set it upon a near-by ice cream cabinet in front of and
about three feet from the refrigerator.
She then
proceeded to take the bottles from the case with her right
hand, one at a time, and put them into the refrigerator.
Plaintiff testified that after she had placed three bottles in
the refrigerator and had moved the fourth bottle about
eighteen inches from the case "it exploded in my hand."
The bottle broke into two jagged pieces and inflicted a
deep five-inch cut, severing blood vessels, nerves and
muscles of the thumb and palm of the hand. Plaintiff
further testified that when the bottle exploded, "It made a
sound similar to an electric light bulb that would have
dropped. It made a loud pop." Plaintiff's employer
testified, "I was about twenty feet from where it actually
happened and I heard the explosion." A fellow employee,
on the opposite side of the counter, testified that plaintiff
"had the bottle, I should judge, waist high, and I know
that it didn't bang either the case or the door or another
bottle . . . when it popped. It sounded just like a fruit jar
would blow up. . . ." The witness further testified that
the contents of the bottle "flew all over herself and
myself and the walls and one thing and another."
The top portion of the bottle, with the cap, remained
in plaintiff's hand, and the lower portion fell to the floor
but did not break. The broken bottle was not produced at
the trial, the pieces having been thrown away by an
employee of the restaurant shortly after the accident.
Plaintiff, however, described the broken pieces, and a
diagram of the bottle was made showing the location of
Res ipsa loquitur does not apply unless (1)
defendant had exclusive control of the thing causing the
injury and (2) the accident is of such a nature that it
ordinarily would not occur in the absence of negligence
by the defendant. ( Honea v. City Dairy, Inc., 22 Cal.2d
614, 616-617 [140 P.2d 369], and authorities there cited;
cf. Hinds v. Wheadon, 19 Cal.2d 458, 461 [121 P.2d
724]; Prosser on Torts [1941], 293-301.)
Plaintiff then rested her case, having announced to
the court that being unable to show any specific acts of
negligence she relied completely on the doctrine of res
ipsa loquitur.
Defendant contends that the doctrine of res ipsa
loquitur does not apply in this case, and that the evidence
is insufficient to support the judgment.
Many jurisdictions have applied the doctrine in
cases involving exploding bottles of carbonated
beverages. (See Payne v. Rome Coca-Cola Bottling Co.,
10 Ga.App. 762 [73 S.E. 1087]; Stolle v. AnheuserBusch, 307 Mo. 520 [271 S.W. 497, 39 A.L.R. 1001];
Bradley v. Conway Springs Bottling Co., 154 Kan. 282
[118 P.2d 601]; Ortego v. Nehi Bottling Works, 199 La.
599 [6 So.2d 677]; MacPherson v. Canada Dry Ginger
Ale, Inc., 129 N.J.L. 365 [29 A.2d 868]; Macres v. CocaCola Bottling Co., 290 Mich. 567 [287 N.W. 922];
Benkendorfer v. Garrett (Tex. Civ. App.), 143 S.W.2d
1020.) Other courts for varying reasons have refused to
apply the doctrine in such cases. (See Gerber v. Faber,
54 Cal.App.2d 674 [129 P.2d 485]; Loebig's Guardian v.
Coca-Cola Bottling Co., 259 Ky. 124 [81 S.W.2d 910];
Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60
[68 P.2d 952]; Glaser v. Seitz, 35 Misc. 341 [71 N.Y.S.
942]; Luciano v. Morgan, 267 App. Div. 785 [45
N.Y.S.2d 502]; cf. Berkens v. Denver Coca-Cola Bottling
Co., 109 Colo. 140 [122 P.2d 884]; Ruffin v. Coca-Cola
Bottling Co., 311 Mass. 514 [42 N.E.2d 259]; Slack v.
Premier-Pabst Corporation, 40 Del. 97 [5 A.2d 516];
Wheeler v. Laurel Bottling Works, 111 Miss. 442 [71 So.
743, L.R.A. 1916E 1074]; Seven-Up Bottling Co. v.
Gretes, Va. [27 S.E.2d 925]; Dail v. Taylor, 151 N.C.
284 [66 S.E. 135, 28 L.R.A.N.S. 949].) It would serve no
useful purpose to discuss the reasoning of the foregoing
cases in detail, since the problem is whether under the
facts shown in the instant case the conditions warranting
application of the doctrine have been satisfied.
Many authorities state that the happening of the
accident does not speak for itself where it took place
some time after defendant had relinquished control of the
instrumentality causing the injury. Under the more
logical view, however, the doctrine may be applied upon
the theory that defendant had control at the time of the
alleged negligent act, although not at the time of the
accident, provided plaintiff first proves that the condition
of the instrumentality had not been changed after it left
the defendant's possession. (See cases collected in
Honea v. City Dairy, Inc., 22 Cal.2d 614, 617-618 [140
P.2d 369].) (3) As said in Dunn v. Hoffman Beverage
Co., 126 N.J.L. 556 [20 A.2d 352, 354], "defendant is not
charged with the duty of showing affirmatively that
something happened to the bottle after it left its control
or management; . . . to get to the jury the plaintiff must
show that there was due care during that period."
Plaintiff must also prove that she handled the bottle
carefully. The reason for this prerequisite is set forth in
Prosser on Torts, supra, at page 300, where the author
states: "Allied to the condition of exclusive control in the
defendant is that of absence of any action on the part of
the plaintiff contributing to the accident. Its purpose, of
course, is to eliminate the possibility that it was the
plaintiff who was responsible. If the boiler of a
locomotive explodes while the plaintiff engineer is
operating it, the inference of his own negligence is at
least as great as that of the defendant, and res ipsa
loquitur will not apply until he has accounted for his own
conduct." (See, also, Olson v. Whitthorne & Swan, 203
Cal. 206, 208-209 [263 P. 518, 58 A.L.R. 129].) It is
not necessary, of course, that plaintiff eliminate every
remote possibility of injury to the bottle after defendant
lost control, and the requirement is satisfied if there is
evidence permitting a reasonable inference that it was
not accessible to extraneous harmful forces and that it
was carefully handled by plaintiff or any third person
who may have moved or touched it. (Cf. Prosser, supra,
p. 300.) If such evidence is presented, the question
becomes one for the trier of fact (see, e.g., MacPherson
v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d
868, 869]), and, accordingly, the issue should be
submitted to the jury under proper instructions.
In the present case no instructions were requested or
given on this phase of the case, although general
instructions upon res ipsa loquitur were given.
Defendant, however, has made no claim of error with
reference thereto on this appeal. Upon an examination of
the record, the evidence appears sufficient to support a
reasonable inference that the bottle here involved was
not damaged by any extraneous force after delivery to
the restaurant by defendant. It follows, therefore, that
the bottle was in some manner defective at the time
defendant relinquished control, because sound and
properly prepared bottles of carbonated liquids do not
ordinarily explode when carefully handled.
A chemical engineer for the Owens-Illinois Glass
Company and its Pacific Coast subsidiary, maker of
Coca Cola bottles, explained how glass is manufactured
and the methods used in testing and inspecting bottles.
He testified that his company is the largest manufacturer
of glass containers in the United States, and that it uses
the standard methods for testing bottles recommended by
the glass containers association. A pressure test is made
by taking a sample from each mold every three hours -approximately one out of every 600 bottles -- and
subjecting the sample to an internal pressure of 450
pounds per square inch, which is sustained for one
minute. (The normal pressure in Coca Cola bottles is
The next question, then, is whether plaintiff may
rely upon the doctrine of res ipsa loquitur to supply an
inference that defendant's negligence was responsible for
the defective condition of the bottle at the time it was
delivered to the restaurant. Under the general rules
pertaining to the doctrine, as set forth above, it must
appear that bottles of carbonated liquid are not ordinarily
defective without negligence by the bottling company.
In 1 Shearman and Redfield on Negligence (rev. ed.
1941), page 153, it is stated that: "The doctrine . . .
requires evidence which shows at least the probability
that a particular accident could not have occurred
without legal wrong by the defendant."
An explosion such as took place here might have
been caused by an excessive internal pressure in a sound
bottle, by a defect in the glass of a bottle containing a
safe pressure, or by a combination of these two possible
causes. The question is whether under the evidence there
was a probability that defendant was negligent in any of
these respects. If so, the doctrine of res ipsa loquitur
applies.
The bottle was admittedly charged with gas under
pressure, and the charging of the bottle was within the
exclusive control of defendant. As it is a matter of
common knowledge that an overcharge would not
ordinarily result without negligence, it follows under the
doctrine of res ipsa loquitur that if the bottle was in fact
excessively charged an inference of defendant's
negligence would arise. If the explosion resulted from
a defective bottle containing a safe pressure, the
defendant would be liable if it negligently failed to
discover such flaw. If the defect were visible, an
inference of negligence would arise from the failure of
defendant to discover it. Where defects are discoverable,
it may be assumed that they will not ordinarily escape
detection if a reasonable inspection is made, and if such a
defect is overlooked an inference arises that a proper
inspection was not made. A difficult problem is
presented where the defect is unknown and consequently
might have been one not discoverable by a reasonable,
practicable inspection. In the Honea case we refused to
take judicial notice of the technical practices and
information available to the bottling industry for finding
defects which cannot be seen. In the present case,
however, we are supplied with evidence of the standard
methods used for testing bottles.
less than 50 pounds per square inch.) The sample bottles
are also subjected to the standard thermal shock test.
The witness stated that these tests are "pretty near"
infallible.
It thus appears that there is available to the industry
a commonly-used method of testing bottles for defects
not apparent to the eye, which is almost infallible. Since
Coca Cola bottles are subjected to these tests by the
manufacturer, it is not likely that they contain defects
when delivered to the bottler which are not discoverable
by visual inspection. Both new and used bottles are filled
and distributed by defendant. The used bottles are not
again subjected to the tests referred to above, and it may
be inferred that defects not discoverable by visual
inspection do not develop in bottles after they are
manufactured. Obviously, if such defects do occur in
used bottles there is a duty upon the bottler to make
appropriate tests before they are refilled, and if such tests
are not commercially practicable the bottles should not
be re-used. This would seem to be particularly true
where a charged liquid is placed in the bottle. It follows
that a defect which would make the bottle unsound could
be discovered by reasonable and practicable tests.
Although it is not clear in this case whether the
explosion was caused by an excessive charge or a defect
in the glass, there is a sufficient showing that neither
cause would ordinarily have been present if due care had
been used. Further, defendant had exclusive control over
both the charging and inspection of the bottles.
Accordingly, all the requirements necessary to entitle
plaintiff to rely on the doctrine of res ipsa loquitur to
supply an inference of negligence are present.
It is true that defendant presented evidence tending
to show that it exercised considerable precaution by
carefully regulating and checking the pressure in the
bottles and by making visual inspections for defects in
the glass at several stages during the bottling process. It
is well settled, however, that when a defendant produces
evidence to rebut the inference of negligence which
arises upon application of the doctrine of res ipsa
loquitur, it is ordinarily a question of fact for the jury to
determine whether the inference has been dispelled. (
Druzanich v. Criley, 19 Cal.2d 439, 444 [122 P.2d 53];
Michener v. Hutton, 203 Cal. 604, 610 [265 P. 238, 59
A.L.R. 480].)
The judgment is affirmed.
CONCUR: JUSTICE TRAYNOR
I concur in the judgment, but I believe the
manufacturer's negligence should no longer be singled
out as the basis of a plaintiff's right to recover in cases
The injury from a defective product does not
become a matter of indifference because the defect arises
from causes other than the negligence of the
manufacturer, such as negligence of a submanufacturer
of a component part whose defects could not be revealed
by inspection (see Sheward v. Virtue, 20 Cal.2d 410 [126
P.2d 345]; O'Rourke v. Day & Night Water Heater Co.,
Ltd., 31 Cal.App.2d 364 [88 P.2d 191]; Smith v. Peerless
Glass Co., 259 N.Y. 292 [181 N.E. 576]), or unknown
causes that even by the device of res ipsa loquitur cannot
be classified as negligence of the manufacturer. The
inference of negligence may be dispelled by an
affirmative showing of proper care. If the evidence
against the fact inferred
is "clear,
positive,
uncontradicted, and of such a nature that it cannot
rationally be disbelieved, the court must instruct the jury
that the nonexistence of the fact has been established as a
matter of law." ( Blank v. Coffin, 20 Cal.2d 457, 461
[126 P.2d 868].) An injured person, however, is not
ordinarily in a position to refute such evidence or
like the present one. In my opinion it should now be
recognized that a manufacturer incurs an absolute
liability when an article that he has placed on the market,
knowing that it is to be used without inspection, proves
to have a defect that causes injury to human beings.
McPherson v. Buick Motor Co., 217 N.Y. 382 [111 N.E.
1050, Ann.Cas. 1916C 440, L.R.A. 1916F 696],
established the principle, recognized by this court, that
irrespective of privity of contract, the manufacturer is
responsible for an injury caused by such an article to any
person who comes in lawful contact with it. ( Sheward v.
Virtue, 20 Cal.2d 410 [126 P.2d 345]; Kalash v. Los
Angeles Ladder Co., 1 Cal.2d 229 [34 P.2d 481].) In
these cases the source of the manufacturer's liability was
his negligence in the manufacturing process or in the
inspection of component parts supplied by others. Even
if there is no negligence, however, public policy
demands that responsibility be fixed wherever it will
most effectively reduce the hazards to life and health
inherent in defective products that reach the market. It is
evident that the manufacturer can anticipate some
hazards and guard against the recurrence of others, as the
public cannot. Those who suffer injury from defective
products are unprepared to meet its consequences. The
cost of an injury and the loss of time or health may be an
overwhelming misfortune to the person injured, and a
needless one, for the risk of injury can be insured by the
manufacturer and distributed among the public as a cost
of doing business. It is to the public interest to
discourage the marketing of products having defects that
are a menace to the public. If such products nevertheless
find their way into the market it is to the public interest
to place the responsibility for whatever injury they may
cause upon the manufacturer, who, even if he is not
negligent in the manufacture of the product, is
responsible for its reaching the market. However
intermittently such injuries may occur and however
haphazardly they may strike, the risk of their occurrence
is a constant risk and a general one. Against such a risk
there should be general and constant protection and the
manufacturer is best situated to afford such protection.
identify the cause of the defect, for he can hardly be
familiar with the manufacturing process as the
manufacturer himself is. In leaving it to the jury to
decide whether the inference has been dispelled,
regardless of the evidence against it, the negligence rule
approaches the rule of strict liability. It is needlessly
circuitous to make negligence the basis of recovery and
impose what is in reality liability without negligence. If
public policy demands that a manufacturer of goods be
responsible for their quality regardless of negligence
there is no reason not to fix that responsibility openly.
In the case of foodstuffs, the public policy of the
state is formulated in a criminal statute. Section 26510 of
the Health and Safety Code prohibits the manufacturing,
preparing, compounding, packing, selling, offering for
sale, or keeping for sale, or advertising within the state,
of any adulterated food. Section 26470 declares that food
is adulterated when "it has been produced, prepared,
packed, or held under insanitary conditions whereby it
may have been rendered diseased, unwholesome or
injurious to health." The statute imposes criminal
liability not only if the food is adulterated, but if its
container, which may be a bottle (§ 26451), has any
deleterious substance (§ 26470 (6)), or renders the
product injurious to health. (§ 26470 (4)). The criminal
liability under the statute attaches without proof of fault,
so that the manufacturer is under the duty of ascertaining
whether an article manufactured by him is safe. ( People
v. Schwartz, 28 Cal.App.2d Supp. 775 [70 P.2d 1017].)
Statutes of this kind result in a strict liability of the
manufacturer in tort to the member of the public injured.
(See cases cited in Prosser, Torts, p. 693, note 69.)
The statute may well be applicable to a bottle whose
defects cause it to explode. In any event it is significant
that the statute imposes criminal liability without fault,
reflecting the public policy of protecting the public from
dangerous products placed on the market, irrespective of
negligence in their manufacture. While the Legislature
imposes criminal liability only with regard to food
products and their containers, there are many other
sources of danger. It is to the public interest to prevent
injury to the public from any defective goods by the
imposition of civil liability generally.
The retailer, even though not equipped to test a
product, is under an absolute liability to his customer, for
the implied warranties of fitness for proposed use and
merchantable quality include a warranty of safety of the
product. ( Goetten v. Owl Drug Co., 6 Cal.2d 683 [59
P.2d 142]; Mix v. Ingersoll Candy Co., 6 Cal.2d 674 [59
P.2d 144]; Gindraux v. Maurice Mercantile Co., 4
Cal.2d 206 [47 P.2d 708]; Jensen v. Berris, 31
Cal.App.2d 537 [88 P.2d 220]; Ryan v. Progressive
Grocery Stores, 255 N.Y. 388 [175 N.E. 105; 74 A.L.R.
339]; Race v. Krum, 222 N.Y. 410 [118 N.E. 853, L.R.A.
1918F 1172].) This warranty is not necessarily a
contractual one ( Chamberlain Co. v. Allis-Chalmers etc.
Co., 51 Cal.App.2d 520, 524 [125 P.2d 113]; see 1
Williston on Sales, 2d ed., § § 197-201), for public
policy requires that the buyer be insured at the seller's
expense against injury. ( Race v. Krum, supra; Ryan v.
Progressive Grocery Stores, supra; Chapman v.
This court and many others have extended
protection according to such a standard to consumers of
food products, taking the view that the right of a
consumer injured by unwholesome food does not depend
"upon the intricacies of the law of sales" and that the
warranty of the manufacturer to the consumer in absence
of privity of contract rests on public policy. ( Klein v.
Duchess Sandwich Co., Ltd., 14 Cal.2d 272, 282 [93
P.2d 799]; Ketterer v. Armour & Co., 200 F. 321, 322,
323 [160 C.C.A. 111, L.R.A. 1918D 798]; Decker &
Sons v. Capps, 139 Tex. 609 [164 S.W.2d 828, 142
A.L.R. 1479]; see Perkins, Unwholesome Food As A
Source of Liability, 5 Iowa L.Bull. 6, 86.) Dangers to life
and health inhere in other consumers' goods that are
defective and there is no reason to differentiate them
from the dangers of defective food products. (See
Bohlen, Studies in Torts, Basis of Affirmative
Obligations, American Cases Upon The Liability of
Manufacturers and Vendors of Personal Property, 109,
135; Llewellyn, On Warranty of Quality and Society, 36
Roggenkamp, 182 Ill.App. 117, 121; Ward v. Great
Atlantic & Pacific Tea Co., 231 Mass. 90, 94 [120 N.E.
225, 5 A.L.R. 242]; see Prosser, The Implied Warranty of
Merchantable Quality, 27 Minn.L.Rev. 117, 124; Brown,
The Liability of Retail Dealers For Defective Food
Products, 23 Minn.L.Rev. 585.) The courts recognize,
however, that the retailer cannot bear the burden of this
warranty, and allow him to recoup any losses by means
of the warranty of safety attending the wholesaler's or
manufacturer's sale to him. ( Ward v. Great Atlantic &
Pacific Tea Co., supra; see Waite, Retail Responsibility
and Judicial Law Making, 34 Mich.L.Rev. 494, 509.)
Such a procedure, however, is needlessly circuitous and
engenders wasteful litigation. Much would be gained if
the injured person could base his action directly on the
manufacturer's warranty.
The liability of the manufacturer to an immediate
buyer injured by a defective product follows without
proof of negligence from the implied warranty of safety
attending the sale. Ordinarily, however, the immediate
buyer is a dealer who does not intend to use the product
himself, and if the warranty of safety is to serve the
purpose of protecting health and safety it must give
rights to others than the dealer. In the words of Judge
Cardozo in the McPherson case: "The dealer was indeed
the one person of whom it might be said with some
approach to certainty that by him the car would not be
used. Yet, the defendant would have us say that he was
the one person whom it was under a legal duty to protect.
The law does not lead us to so inconsequent a solution."
While the defendant's negligence in the McPherson case
made it unnecessary for the court to base liability on
warranty, Judge Cardozo's reasoning recognized the
injured person as the real party in interest and effectively
disposed of the theory that the liability of the
manufacturer incurred by his warranty should apply only
to the immediate purchaser. It thus paves the way for a
standard of liability that would make the manufacturer
guarantee the safety of his product even when there is no
negligence.
Col.L.Rev. 699, 704, note 14; Prosser, Torts, p. 692.)
In the food products cases the courts have resorted
to various fictions to rationalize the extension of the
manufacturer's warranty to the consumer: that a warranty
runs with the chattel; that the cause of action of the
dealer is assigned to the consumer; that the consumer is a
third party beneficiary of the manufacturer's contract
with the dealer. They have also held the manufacturer
liable on a mere fiction of negligence: "Practically he
must know it [the product] is fit, or bear the
consequences if it proves destructive." ( Parks v. C. C.
Yost Pie Co., 93 Kan. 334 [144 P. 202, L.R.A. 1915C
179]; see Jeanblanc, Manufacturer's Liability to Persons
Other Than Their Immediate Vendees, 24 Va.L.Rev.
134.) Such fictions are not necessary to fix the
manufacturer's liability under a warranty if the warranty
is severed from the contract of sale between the dealer
and the consumer and based on the law of torts ( Decker
& Sons v. Capps, supra; Prosser, Torts, p. 689) as a strict
liability. (See Green v. General Petroleum Corp., 205
Cal. 328 [270 P. 952, 60 A.L.R. 475]; McGrath v. Basich
Bros. Const. Co., 7 Cal.App.2d 573 [46 P.2d 981];
Prosser, Nuisance Without Fault, 20 Tex.L.Rev., 399,
403; Feezer, Capacity To Bear The Loss As A Factor In
The Decision Of Certain Types of Tort Cases, 78 U. of
Pa.L.Rev. 805, 79 U. of Pa.L.Rev. 742; Carpenter, The
Doctrine of Green v. General Petroleum Corp., 5
So.Cal.L.Rev. 263, 271; Pound, The End of Law As
Developed In Legal Rules And Doctrines, 27 Harv.L.Rev.
195, 233.) Warranties are not necessarily rights arising
under a contract. An action on a warranty "was, in its
origin, a pure action of tort," and only late in the
historical development of warranties was an action in
assumpsit allowed. (Ames, The History of Assumpsit, 2
Harv.L.Rev. 1, 8; 4 Williston on Contracts (1936) §
970.) "And it is still generally possible where a
distinction of procedure is observed between actions of
tort and of contract to frame the declaration for breach of
warranty in tort." (Williston, loc. cit.; see Prosser,
Warranty On Merchantable Quality, 27 Minn.L.Rev.
117, 118.) On the basis of the tort character of an action
As handicrafts have been replaced by mass
production with its great markets and transportation
facilities, the close relationship between the producer and
consumer of a product has been altered. Manufacturing
processes, frequently valuable secrets, are ordinarily
either inaccessible to or beyond the ken of the general
public. The consumer no longer has means or skill
enough to investigate for himself the soundness of a
product, even when it is not contained in a sealed
package, and his erstwhile vigilance has been lulled by
the steady efforts of manufacturers to build up
confidence by advertising and marketing devices such as
trade-marks. (See Thomas v. Winchester, 6 N.Y. 397 [57
Am.Dec. 455]; Baxter v. Ford Motor Co., 168 Wash. 456
[12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521]; Crist v. Art
Metal Works, 230 App.Div. 114 [243 N.Y.S. 496],
affirmed 255 N.Y. 624 [175 N.E. 341]; see also Handler,
False and Misleading Advertising, 39 Yale L.J. 22;
Rogers, Good Will, Trade-Marks and Unfair Trading
(1914) ch. VI, A Study of The Consumer, p. 65 et seq.;
Williston, Liability For Honest Misrepresentations As
Deceit, Negligence Or Warranty, 42 Harv.L.Rev. 733; 18
Cornell L.Q. 445.) Consumers no longer approach
products warily but accept them on faith, relying on the
reputation of the manufacturer or the trade mark. (See
Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 463 [55
P.2d 177]; Old Dearborn etc. Co. v. Seagram-Distillers
on a warranty, recovery has been allowed for wrongful
death as it could not be in an action for breach of
contract. ( Greco v. S. S. Kresge Co., 277 N.Y. 26 [12
N.E.2d 577, 115 A.L.R. 1020]; see Schlick v. New York
Dugan Bros., 175 Misc. 182 [22 N.Y.S.2d 238]; Prosser,
op. cit., p. 119.) As the court said in Greco v. S. S.
Kresge Co., supra, "Though the action may be brought
solely for the breach of the implied warranty, the breach
is a wrongful act, a default, and, in its essential nature, a
tort." Even a seller's express warranty can arise from a
noncontractual affirmation inducing a person to purchase
the goods. ( Chamberlain Co. v. Allis-Chalmers etc. Co.,
51 Cal.App.2d 520 [125 P.2d 113].) "As an actual
agreement to contract is not essential, the obligation of a
seller in such a case is one imposed by law as
distinguished from one voluntarily assumed. It may be
called an obligation either on a quasi-contract or quasitort, because remedies appropriate to contract and also to
tort are applicable." (1 Williston on Sales, 2d ed. § 197;
see Ballantine, Classification of Obligations, 15
Ill.L.Rev. 310, 325.)
Corp., 299 U.S. 183 [57 S.Ct. 139, 81 L.Ed. 109, 106
A.L.R. 1476]; Schechter, The Rational Basis of Trade
Mark Protection, 40 Harv.L.Rev. 813, 818.)
Manufacturers have sought to justify that faith by
increasingly high standards of inspection and a readiness
to make good on defective products by way of
replacements and refunds. (See Bogert and Fink,
Business Practices Regarding Warranties In The Sale Of
Goods, 25 Ill.L.Rev. 400.) The manufacturer's obligation
to the consumer must keep pace with the changing
relationship between them; it cannot be escaped because
the marketing of a product has become so complicated as
to require one or more intermediaries. Certainly there is
greater reason to impose liability on the manufacturer
than on the retailer who is but a conduit of a product that
he is not himself able to test. (See Soule, Consumer
Protection, 4 Encyclopedia of The Social Sciences, 282;
Feezer, Manufacturer's Liability For Injuries Caused By
His Products: Defective Automobiles, 37 Mich.L.Rev. 1;
Llewellyn, Cases And Materials on Sales, 340 et seq.)
The manufacturer's liability should, of course, be
defined in terms of the safety of the product in normal
and proper use, and should not extend to injuries that
cannot be traced to the product as it reached the market.
A. Modern Judges
1.
Judicial Law-Making in 20th Century Germany: Right of Personality
B.S. Markesinis,
A Comparative Introduction to the German Law of Torts (3rd ed. 1994)
Liability under § 823 I BGB
Introductory Remarks
Among the three general provisions of the BGB – §§ 823 I and II, and 826 – §
823 I has, traditionally, been accorded a special pre-eminence even though we shall see
that § 823 II BGB is nowadays considered as a close rival, and for some writers, has an
even wider potential ambit. Compared with § 826 BGB, § 823 I BGB is both wider and
narrower. It is 'objectively' narrower, in so far as it can be invoked only if one of the
enumerated interests (discussed below) has been violated, whereas there is no such
limitation with § 826 BGB. In practical terms, the 'kind of harm' which is not protected by
§ 823 I BGB is economic loss (unless it is consequential upon physical damage),
whereas claims for economic loss are the most usual claims brought under § 826 BGB. §
823 I BGB is, however, 'subjectively' wider than § 826 in so far as it covers intention as
well as negligence, whereas § 826 is limited to intentional activities which, in addition,
must be contra bonos mores. On the other hand, the ambit of § 823 II BGB is made to
depend on the notion of 'protective law' (Schutzgesetz). Its effect is to give rise to civil
liability in the event of a violation of some statute or other enactment – usually of a
criminal nature – if this enactment is a 'protective law' in the sense that will be explained
below. The only additional requirement introduced by this section is that if the protective
law in question imposes liability irrespective of fault, additional civil liability will not be
engendered unless the defendant was also guilty of fault.
For an action to be based on § 823 I BGB the following requirements must be
satisfied: (i) there must be a violation of one of the enumerated rights or interests,
namely, life, body, health, freedom, property, or any 'other right' (sonstiges Recht) which
was (ii) unlawful, and (iii) culpable (intentional or negligent), and there must be (iv) a
causal link between the defendant's conduct (which can be an act or an omission) and the
plaintiff's harm as defined by this paragraph. ...
Other rights (sonstige Rechte)
Generally
The term 'other rights' is clearly taken to refer to other absolute rights, i.e. rights
which can be interfered with by everyone and which can be asserted against everyone.
We have thus seen how possession can – in certain circumstances – be covered by §
823 I BGB (and, incidentally, asserted even against the rightful owner). Other absolute
rights are patents (see § 47 of the Patent Law), copyrights, trademarks, and also the
name of a physical or legal (commercial) person (§§ 12 BGB and 37 of the HBG). The
right to one's image (or picture) (Recht am eigenen Bilde = §§ 22 ff. of the Act on Artistic
Creations) is also included under this heading. But relative rights, such as rights arising
under a contract and owed by one contractor to the other, are not included in this article.
The breach of an obligation which arises only from a contract (e.g. failure to repay a debt)
and does not also amount to the commission of a tort (e.g. dentist negligently removing
the wrong tooth) will not be actionable in tort. But if the same set of facts amounts to a
breach of contract and a tort, the plaintiff is free to choose the type of action which is
more favourable to him, German law – unlike French law – ignoring the rule against
cumulation of actions (RGZ 88, 433, 434-5; BGHZ 55, 392, 395). Equally, as already
stated, if one person induces another person to break his contractual obligations towards a
third party, he will not be liable under § 823 I BGB towards this third party for his
economic loss, though he may be liable to him under § 826 BGB if the other conditions of
liability in this paragraph are satisfied.
Three types of situations have given rise to considerable literature and case law
and they must now be examined. The first is related to the possible use of § 823 I BGB
within the context of fami1y relations; the second deals with the right of an established and
operating business; and the third with the general right to one's personality and privacy.
The last two 'rights' are very important judicial creations.
The general right to one's personality In Germany, as indeed in the United States,
the first attempts to recognise a general right of privacy (and, more generally, a wider
protection of the human personality) were made by distinguished academics like Kohler
('Das Recht an Briefen', Archiv für bürgerliches Recht VII, 94 ff.) and the famous
'Germanist' Gierke (Deutsches Privatrecht I, 707; III, 887) towards the end of the 19th
century. On a more regional basis, one must, however, note the Civil Code of Saxony of
1863 – greatly admired at the time – which gave judges the discretion to award damages
in cases involving the 'dissemination of untrue statements about a person's life, personal
abilities, conduct of office, established business, or other relations.' Of course, the
emphasis on untrue statements, brings this provision closer to defamation than privacy; but
that does not really affect its pioneering nature given the feeling, widely accepted at that
time, that interferences with honour, reputation, and other such personal interests should
not be vindicated through an action for damages. (See, for example, various obiter in RGZ
7, 295, which reflects the view taken by most German courts.) This attitude was also
adopted by the Committee which was entrusted with the task of drafting the BGB and
which expressed it in uncompromising terms when it stated that 'it [would be] repugnant
to the dominant opinion among the population to place non-material values on the same
level as property interests and to make good with money interferences with non-material
interests. The Code [which was being drafted at the time] should not ignore this view,
especially prevalent among the better circles of society [sic]. Only the worst elements [of
society] would try to take advantage [of such a provision]. Pursuit of profit, selfishness,
and covetousness would be promoted and wrongful proceedings, started from ulterior
motives, would be encouraged.' (Protokolle der Kommission für die Zweite Lesung des
Entwurfs des Bügerlichen Gesetzbuchs, vol. I (1897), pp. 622-3).
Clearly, the times were not yet ripe for the recognition of any wide-ranging rights of
personality; and the 'toughness' of living conditions at that time made the average citizen
quite indifferent towards such 'lesser' interferences with his daily life. Inevitably, therefore,
German law opted for a more gradual extension of the protection of the various aspects of
the human personality. It was not until the Nazi holocaust demonstrated its utter disregard
for human beings, their life, and their dignity, that the need was really felt for greater legal
protection; and even then it was strongly resisted by sections of the Press. The next move
was thus facilitated by the post-War climate and the newly sanctioned Bill of Rights
(contained in the first twenty articles of the Constitution of Bonn of 1949). What happened
next is explained in the translated cases and their annotations-more than usually detailed
since many comparatists would take the view that the German law of privacy holds some
interesting lessons for the English Common law. Here, therefore, only three general
observations will be made.
First, one must stress that the absence (until the Schacht decision of 1954) of a
general right of personality did not mean that the protection afforded by German law (at
any rate while the democratic order was respected) was inadequate, let alone non-existent
even though the way the courts managed to afford protection was, at times, achieved in a
somewhat crude legal manner. When, for example, in 1899 the defendants broke into
Bismarck's death chamber and photographed his corpse, public resentment was such that
the court that had to hear the case against the photographers had to discover a way to
deny the offenders the financial advantages of their conduct. In the event, the defendants
were forced to hand over to the plaintiffs the negatives of the photographs. The actual
decision, however, is more complicated than this summary suggests, since it had to be
decided according to the old Gemeines Recht – i.e. the usus modernus Pandectarum –
and was related to a bankruptcy question (since the defendants were insolvent): were the
negatives part of their estate? (RGZ 45. 170). By 1907 this rather primitive protection was
further extended by the Act on Artistic Creations (Kunsturhebergesetz) which, in §§ 22 et
seq., prohibited the publication of a person's picture without his consent unless his was a
'public figure' (though see KG JW 1928, 363). The unauthorised publication of private
letters was also increasingly restricted though in the beginning the protection afforded to
the 'author' (or, more typically his heirs wishing to prevent publication of letters that were
in the possession of their recipients) depended upon whether the letters in question could
be considered as 'literary works.' This move started with RGZ 69, 401 where the Imperial
Court demonstrated great ingenuity when Nietzsche's sole heiress sought to prevent the
publication of letters written by the philosopher which the heirs of the addressee wished to
publish. In the absence of a general right of personality, the court reasoned that the
ownership in the letters had passed to the addressee (and to his heirs). But if the letters
could be regarded as 'artistic creations', they could then be given copyright protection.
Thus, to start with, the publication of private facts, lying outside the range of fiduciary
relations, received little or no publicity. Fifty years later, however, the Federal Court in the
second Wagner case (BGHZ 15, 249), which involved the private diaries of Cosima
Wagner written during her marriage to the great composer, held that the publication of
private notes or records could be enjoined on privacy grounds even if they fell short of the
standards of 'literary merit' that would ensure them protection under copyright laws.
Other aspects of the human personality received more clearly defined protection by
the Civil Code or other enactments. Thus § 12 of the BGB protects the human name and
§ 826 BGB can also, on occasion, be of use. § 824 BGB can give an action against a
person who publishes wrong facts which endanger the credit of the plaintiff and which he
knows or ought to know are false. Finally, the crime of insult or slander (§ 185 of the
Criminal Code) can be used in conjunction with § 823 II BGB to give rise to a civil action.
Secondly, one should note that the new right created in 1954 and added to the list
of other rights ought to have been modelled on the interests of life, body, health, and
freedom. If the Code were ever to be redrafted, the protection of personality should be
added to the list of those interests with which it is more related rather than be treated as
another right analogous perhaps, to that of ownership. One must add, however, that such
redrafting of the Code seems unlikely; at any rate, it has failed up to now to materialize
since the protection of one person's personality and privacy can mean that another
person's freedom of speech can be curtailed. The issues raised by this new right are
comp1icated and one must remember that the right to be protected against an often
irresponsible Press must be counterbalanced by the equally important need to preserve the
freedom of the Press guaranteed by article 5 of the Constitution (see also § 193 of the
Criminal Code). Where the line will be drawn will thus depend on the circumstances of
each case and the rich case law will, at best, provide useful guidelines but not binding
rules. The famous 'Lebach decision' (BVerfGE 35, 202) illustrates how difficult it can be
to balance on the one hand the right to publish information and, on the other, 'the right to
anonymity'. (The anonymity of criminals, and more generally persons prosecuted for
offences, has been discussed in a number of cases. Interesting dicta can be found, inter
alia, in: OLG Düsseldorf NJW 1980, 599; OLG Harnburg NJW 1980, 842; OLG Hamm
NJW 1982, 458; OLG Köln NJW 1987, 2682 – the last one linking German domestic law
with the European Convention on Human Rights.) It would appear, however, that the more
active a person becomes in the 'public domain' the less he will be able to argue
successfully that criticisms of his conduct amount to actionable invasions of his privacy.
(Thus, see BGHZ 36, 77, 80; BGH NJW 1964, 1471 and many others.)
Finally, as has been already noted, the development of the new right was prompted
by the Constitution's protection of the human personality (articles I and 2). That this
constitutional provision should be given material effect on the civil law plane was desirable
and necessary. Less straightforward, however, was the method of widening the remedies
available to the aggrieved plaintiff in order to make this protection more complete. Thus, in
the first decision that recognized the new right – the Schacht case – the court decreed,
and the plaintiff was content to demand, reparation in specie (correction of statement
published in a newspaper). In the second important judgment – the Herrenreiter case –
the court argued in favour of the analogical extension of § 847 BGB while in a subsequent
case the court finally decided to base the award of monetary compensation on § 253 BGB
in conjunction with article I of the Constitution. If natural restitution is insufficient under §
253 BGB – reasoned the court – then that paragraph should be interpreted to allow even
monetary compensation. The constitutional text, in its express desire to protect human
dignity and personality, makes this extension of this civil remedy (damages) both desirable
and necessary. This last part of the reasoning may be doubtful (see Medicus, 15th edn.,
no.615). But given the legislative inactivity in the field, it has repeatedly been upheld by
the Federal Supreme Court; indeed, the Constitutional Court itself held in a long and
interesting judgment.
*****
BUNDESGERICHTSHOF (FIRST CIVIL DIVISION)
[Opinion of the German Supreme Court]
14 FEBRUARY 1958
BGHZ 26.349 = NJW 58.827 (with a partially approving and partially critical note by
Larenz = JZ 1958. 571 and an approving article by H. Coing in JZ 1958. 558)
The plaintiff is co-owner of a brewery in X. He is active as a gentleman showjumper (‘Herrenreiter’). The defendant Limited Partnership is the manufacturer of a
pharmaceutical preparation which is widely reputed as being able to increase sexual
potency. To advertise this preparation in the Federal Republic, and in particular in K, it
disseminated a poster with the picture of a show-jumper. Its basis was an original
photograph of the plaintiff, which had been taken by a press agency at a show-jumping
competition. The plaintiff had not given permission for the use of his portrait. The plaintiff
claimed damages from the defendant for the damage which he suffered as a result of the
dissemination of the poster. He alleged that in the given circumstances he could only claim
as damages what he would have obtained if he had allowed the defendant to use his
portrait. As his professional and social position did not allow him, and his financial means
did not compel him, to dispose of his portrait for advertising purposes, and in particular for
the defendant’s preparation, he would have done this, if at all, only for a fair price, at a
rough estimate DM 15.000 at the very least. The plaintiff applied for an order that the
defendant pay by way of damages a fair sum to be fixed by the court. The defendant
denied any fault and pleaded that, after touching up, the plaintiff’s features were not
recognizable in the poster; an that it had not itself designed or produced the poster nor
obtained the portrait from S, but had ordered it from the H advertising agency, which it
had trusted as a respectable, competent, and reliable firm, not to injure the rights of third
persons. The defendant could not have known that the poster had been designed on the
basis of a photograph, or that the photograph showed a ‘gentleman’ rider. Only as the
case developed did it discover that it really concerned a portrait of the plaintiff. Thereupon
it prohibited without delay any further use of the advertisement. The Landgericht ordered
the defendant to pay DM 1000 to the plaintiff by way of damages. The Oberlandesgericht
ordered the defendant to pay DM 10.000 to the plaintiff. The defendant’s further appeal
was unsuccessful for these
Reasons
The Court of Appeal, in agreement with the Landgericht, found that the depiction of
the rider in the poster allowed the plaintiff’s person to be recognized despite the
retouching. It rightly concluded that the dissemination of the poster without the plaintiff’s
permission injured his personality rights, namely his right to deal with his portrait, and that
the defendant must compensate him under § 823 II BGB in combination with § 22 of the
Act on Artistic Creations, if it was found to blame (cf. RG JW 1929, 2257, BGHZ 20,
345, 347 ff.). The Court of Appeal came to that conclusion seeing that the defendant had
not observed the care required in the circumstances, since it had obtained in the course of
its business the poster prepared by the H advertising agency without making certain that
the person depicted had agreed to the intended use of his portrait.
The appellant’s attacks on these findings must fail [further discussion not
reproduced].
II. In awarding compensation to the plaintiff the Court of Appeal had in mind the
licence fee which he could have demanded if a suitable contract had been arrived at
between the parties. It held that it was justified in applying a method of assessing
damages developed for breaches of copyright, because it was hard for the plaintiff to show
whether and to what degree there had been any pecuniary loss. In contrast to the
Landgericht, which had thought DM 1000 to be sufficient, the Court of Appeal decided that
DM 10.000 was the more appropriate figure. Although the appeal is unsuccessful in the
result, it must be conceded that the Court of Appeal’s reasoning is not entirely appropriate
to the peculiar facts of the case.
1. The appellant does not dispute that, even where there is an injury to the
personality right to one’s portrait, the damage can be estimated according to the payment
that would presumably have been arranged if there had been a contract. Nevertheless the
appellant argued that this method of assessing damages, which the Senate in its
judgement of 8 May 1956 (BGHZ 20, 345 ff. – Dahlke) declared admissible for the
unauthorized publication of a portrait, could not be used if it was established that the
person portrayed would, for special reasons, never have allowed his portrait to be used for
advertising purposes.
If in the case under appeal pecuniary damage had actually been in question, this
attack would not have been well founded. For according to settled case-law and academic
opinion, where a claim to an appropriate compensation, is recognized, it is not a question
of applying the general provisions of the law of damages but of its customary
supplementation to make good injury to valuable exclusive rights, based on the equitable
consideration that the defendant should not be better off that he would have been if his
application for permission had been granted. The claim to appropriate compensation is
therefore granted in all cases of unpermitted invasion of exclusive rights where permission
is usually made dependent on payment and where, having regard to the kind of the right
which has been violated, the invasion is habitually allowed according to the customs of
daily life only – if at all – against compensation (BGHZ 20, 345, 353 ff.). It is not at all
necessary for a contract actually to have come into existence if the invader’s conduct was
otherwise unobjectionable.
2. It must, however, be agreed that the Court of Appeal, by the method of
assessment it chose, did not really try to work out the economic loss to the plaintiff, but
rather to adjust the satisfaction due to him to his non-material disparagement. In particular
the reasoning by which it arrived at the amount of the damage to the plaintiff shows that
according to its opinion also he did not suffer any tangible pecuniary loss. In truth he
claims not compensation for a non-existent pecuniary loss but an appreciable satisfaction
for an unlawful attack on his personality protected by § 22 of the Act on Artistic Creations
and Arts. 1 and 2 of the Constitution. He demands satisfaction for the fact that a widely
disseminated poster, by making him, one might almost say, ‘ride’ for the purpose of
advertising the defendant’s tonic – and a sexual one at that – humiliated him and made
him an object of ridicule. In such a situation it is absurd to award damages on the basis of
a fictitious licence agreement. This way of estimation damage is appropriate only if one
can start with the doing of some kind of pecuniary damage and all that is left is to
alleviate the often difficult task of proving its amount. It fails if no pecuniary prejudice at all
is in question. It fails also in the present case because it would assume that the plaintiff
had done something that not only he, but all others of the same professional and social
standing, must consider harmful and as a continuing degradation of his personality. It must
convey an imputation that the plaintiff would, after all, voluntarily and for a large sum of
money place himself in the unworthy position against which he is defending himself.
The plaintiff’s claim therefore cannot be supported by the Court of Appeal’s chosen
method of assessment, helped out by the fiction of a loss of licence fee.
3. Moreover, basing the claim on unjustified enrichment is precluded because the
plaintiff did not experience any pecuniary disadvantage and there is thus no pecuniary shift
of the kind envisaged by §§ 812 ff. BGB.
4. If, therefore, the kind of assessment adopted by the Court of Appeal fails, and it
is shown that the plaintiff in truth suffered no pecuniary damage, the decisive question
comes to be whether he can demand compensation for the immaterial damage which he
has suffered as a result of the invasion of his personality following the appearance of his
picture in the advertisement. On the facts before it the Senate answers that question in the
affirmative. This Senate has already said in its decision in BGHZ 13, 334, 338 that the
sacredness of human dignity and the right to free development of the personality protected
by Art. 1 of the Constitution are also to be recognized as a civil right to be respected by
everyone in daily life, in so far as that right does not impinge upon the rights of others and
is not repugnant to constitutional order or the moral law. This so-called general right to
one’s personality also possesses legal validity within the framework of the civil law and
enjoys the protection of § 823 I BGB under the designation of ‘other right’ (cf. also BGHZ
24, 12 ff.). Articles 1 and 2 of the Constitution protect – and indeed must be applied by
the courts in the administration of justice – what is called the concept of human
personality; they recognize in it one of the supra-legal basic values of the law. Thereby
they are directly concerned with the protection of the inner realm of the personality which,
in principle, only affords a basis for the free and responsible self-determination of the
individual and an infringement of which produces primarily so-called immaterial damage,
damage expressed in a degradation of the personality. To respect this inner realm and to
refrain from invading it without authorization is a legal command issuing from the Basic
Law itself. And it follows from the Constitution that in cases of invasion of this sphere,
protection must be given against damage characteristic of such an invasion. On the limited
field of portrait protection this was established in 1907 by the special rules contained in §§
22 ff. of the Act on Artistic Creations, long before the Constitution came into force and at
a time when the civil law did not as yet protect a general personality right. For the
protection afforded by §§ 22, according to which portraits may be distributed or shown
publicly only with the subject’s consent, rests in essence on the fundamental principle of a
person’s freedom in his highly personal private life, in which the outward appearance of
human being plays an essential part. The unauthorized publication of a portrait constitutes,
as has long been recognized in legal literature, an attack on the freedom of selfdetermination and the free expression of the personality. The reason why a third person’s
arbitrary publication of a portrait is not allowed is that the person portrayed is thereby
deprived of his freedom to dispose by his own decision of this interest in his individual
sphere. Once the violation of the right to one's picture is seen as affecting one's
personality it is possible to seek an answer to the question how to compensate immaterial
damage in § 847 BGB. This allows an equitable compensation in money for non-pecuniary
loss in cases of 'deprivation of liberty'. It is true that deprivation of liberty is here
understood to mean deprivation of freedom of bodily movement, as well as compulsion to
act, by means of force or threats, whereas § 22 of the Act on Artistic Creations deals with
deprivation of the free and responsible exercise of will. Already, however, before the Basic
Law came into force, the opinion was often expressed that any attack on the undisturbed
exercise of the will was to be regarded as an injury to freedom in the sense of § 847
BGB. Now that the Constitution guarantees a comprehensive protection to the personality
and recognizes human dignity and the right to free development of the personality as a
fundamental value, it has done away with the dogma held by the original draftsmen of the
BGB that there can be no civil law protection of general personality right; and since a
protection of inner freedom without a right to compensation for immaterial damage would
be in great part illusory, it would be intolerable to refuse compensation for that immaterial
damage. Moreover, there is no obvious reason why § 847 BGB should not be extended
by analogy to such attacks as injure the right to free exercise of the will, especially where
that deprivation of intellectual liberty, just like deprivation of bodily freedom, renders natural
restitution impossible. Where such blameworthy depreciations of the personality right are in
question, the effective legal protection offered by the Constitution can, in the absence of
any special legal provision, be attained only through its inclusion in the injuries mentioned
in § 847 BGB, since their injurious consequences are of necessity primarily immaterial.
This view is not at variance with the sense of § 35 of the Act on Artistic Creations. Of
course the injured party can claim under it a penalty for the injury to his right to his
portrait, and with it to have his immaterial loss made good, only in criminal proceedings
and on condition that the injury was intended; but that special provision shows only that as
early as 1907 the legislator regarded an infringement of § 22 as so far-reaching and
threatening that it was considered necessary to grant expressly to the injured party a claim
to compensation for the disparagement. The restriction of the criminal law claim for a
penalty to intentional injuries accords with the legislator's limitation of the threat of
punishment for an infringement of § 22 to intentional interference. However, that does not
mean that the same must apply to the civil law claims to compensation that are regulated
in the Act on Artistic Creations. On the contrary, since the Constitution now recognizes the
general personality right as significant for civil law and has afforded a general civil law
protection appreciably exceeding the narrow regulation of § 35 of the Act on Artistic
Creations, the special provision of § 35 can no longer be cited in opposition to a more
extensive civil law protection of the right to one's portrait. The general provisions of the
BGB concerning delicts come into operation instead. That means that, at any rate since
the Constitution came into force, by an analogous application of § 847 BGB, any
blameworthy injury to the right to one's portrait involves a duty to make good immaterial
damage also. In so far as the Senate, following the case-law of the Reichsgericht, decided
in the Dahlke case (BGHZ 20, 345, 352 ff.) that immaterial damage cannot give rise to a
money claim in the absence of express legal provision, its opinion cannot be upheld in the
light of the foregoing discussions. The statement was obiter, since the facts disclosed
pecuniary damage, which could be estimated on the basis of the usual license fee.
The compensation to be paid to the plaintiff was fixed by the Court of Appeal at
DM 10.000. Although starting from a possible assessment according to the satisfaction
that might have been paid in a case of contract on the usual terms, the court's arguments
fully apply also to fixing the amount of an equitable compensation under § 847 BGB. They
also show that the court really awarded the plaintiff compensation for the immaterial
damage that had resulted. As the Grosse Zivilsenat explained in its decision of 6 July
1955 (BGHZ 18, 149), the claim for damages for pain and suffering offers the injured
party an appropriate compensation for the depreciation of life (or personality) which is not
of a pecuniary kind. But it also takes account of the notion that the doer of damage owes
the injured party satisfaction for what he has done to him. It was emphasized in the
decision that 'satisfaction', which forms an integral part of the award for compensation for
immaterial damage, must take into account all the relevant circumstances. This Senate
adheres to this view in this present case. If one therefore moves on from that position, it
follows that the Court of Appeal was not in error in taking all the relevant circumstances
into account in fixing the amount of damages. In particular, that court explained that the
fact that the plaintiff had never been ready to take part in any advertising must be a factor
in deciding the amount to be paid. It considered it especially serious that the advertisement
was for an aphrodisiac, and so was not to be compared with advertisements for other
products. The court was right in taking the view that persons would be unlikely to allow
their likeness to be used on a poster for this purpose and so run a risk of being
recognized by a wider or narrower public, exposing themselves to the innuendos to which
the defendant's preparation would give rise. The Court of Appeal also took the plaintiff's
social and business position into account, pointing to the fact that he moved in a social
circle the members of which were for the most part known to each other and where the
risk of making oneself an object to ridicule was especially great. When, after considering
and giving weight to all these special circumstances relevant to amount of damages for
pain and suffering, the Court of Appeal regarded the sum of DM 10.000 as appropriate
compensation (§ 287 ZPO), it cannot be found to have acted contrary to law.
*****
Opinion of the German Federal Constitutional Court
in the Proceeding Concerning the Constitutional Complaint of
Publishing Company "Die Welt" and Mr. K.-H. V.
First Panel, February 14, 1973.
BVerfGE 34, 269, also reported in NJW 1973, 1221.
[The plaintiff is Princess Soraya, the ex-wife of the Shah of Iran. At the time in
question, after her divorce from the Shah, the plaintiff resided in Germany. The defendants
are the publisher and chief-editor of an illustrated weekly paper which is distributed
throughout Germany and known to specialize in sensational society stories.
In April 1961, defendants' paper carried a front-page story purporting to be the
transcript of an interview with the plaintiff. The interview, which appeared to reveal much of
plaintiff's private and very private life, was wholly fictitious, i.e., it was totally and freely
invented by its author, a free- lance journalist. Defendants published the story without
investigating whether the interview had actually taken place. In July 1961, defendants'
paper carried another story dealing with Princess Soraya, and as a part of that new story
the defendants published a brief statement by the Princess to the effect that the alleged
April interview had not taken place.
In the present action, plaintiff seeks damages for "violation of her personality
rights." The Landgericht as court of first instance awarded her D.M. 15,000. The
Oberlandesgericht (intermediate appellate court) and the Bundesgerichtshof (court of last
resort in civil and criminal matters, abbr. BGH) affirmed, and the defendants brought the
case before the Federal Constitutional Court by way of a constitutional complaint. In order
to understand the thrust of defendants' constitutional arguments, we must take a brief look
at the development and present status of the rules of substantive law which the plaintiff
successfully invoked in the courts below.
Apart from a section protecting a person's right to his name, the German Civil Code
contains no specific provisions concerning the subjects which we would label as
defamation or invasion of privacy. In Germany, as in France, defamation traditionally has
been thought of as a crime rather than a tort. Under this traditional view, defamation
actions normally have to be brought in the criminal courts, even though such an action
ordinarily has to be prosecuted by the victim rather than the public prosecutor. If the
defendant is convicted in such a criminal proceeding, he will be fined, or (in a very serious
case) subjected to a jail sentence; but the victim cannot recover substantial damages in
that proceeding.
Until after World War II, attempts to bring civil actions for defamation or invasion of
privacy found little favor with the German courts. The first paragraph of § 823 of the Civil
Code authorizes tort recovery only if the plaintiff can show injury to his "life, body, health,
freedom, property, or some other (similar) right." In order to bring cases of defamation or
invasion of privacy within the ambit of this code provision, plaintiffs often argued that a
person's interest in his reputation and privacy should be regarded as his "personality right"
and should be protected as one of the "other rights" mentioned in § 823. But throughout
the periods of the Empire, the Weimar Republic and the Third Reich, the courts essentially
rejected that argument.
A different judicial approach to the problem emerged after World War II, and after the
adoption of the new West German Constitution, which contains the following provisions:
Art. 1. The dignity of man is inviolable. Every state authority is duty-bound to
respect and protect it ...
Art. 2. Everyone is entitled to the free development of his personality insofar as he
does not violate the rights of others or offend the constitutional order or the rules of
morality 
During the 1950s the BGH, explicitly invoking these constitutional provisions, gave up
the former narrow interpretation of § 823 of the Civil Code and repeatedly held that a
plaintiff's "personality right" is one of the "other rights" which are protected by § 823
against intentional or negligent infringement. This was an important development. It meant
that-in contrast to prior law-the German courts now were treating injuries to a person's
reputation or privacy as actionable torts.
Even after this judicial breakthrough, however, a difficult issue remained to be
resolved regarding the kind of damages for which recovery could be allowed under
German law in cases of injury to the plaintiff's "personality right." The difficulty was
caused by one of the Civil Code's provisions dealing with damages. These provisions,
insofar as they are relevant to the present discussion, read as follows:
§ 249. A person who is liable to make compensation, has to bring about the
condition which would exist if the circumstances making him liable had not
occurred. [This means that as a rule, subject to the exceptions listed in the second
sentence of § 249 and in the subsequent sections, the obligor is bound to make
restitution in kind rather than to pay money damages.] If the liability exists for injury
to a person or damage to tangible property, then the obligee [at his election] may
demand, instead of restitution in kind, the sum of money necessary to effect such
restitution.
§ 251. Insofar as restitution in kind is impossible or is insufficient to compensate
the obligee, the obligor has to compensate the obligee by the payment of money
damages. ...
§ 253. For an injury which is not an injury to patrimony [i.e., to interests having a
pecuniary value], compensation in money can be demanded only in the cases
provided by (written) law. (emphasis supplied) [The German text makes it clear
that a victim whose non-pecuniary interests have been injured can demand money
damages only in the cases provided by "Gesetz". As distinguished from Recht,
which in its objective sense means law (regardless of its source). the word
"Gesetz" denotes a statute or other written law. See supra this section.]
There are a few limited and narrowly defined cases in which an express provision of
written law (within the meaning of § 253) permits the victim of a tort to recover money
damages for an injury to non-pecuniary interests; the prime example is the case of
personal injury, with respect to which § 847 of the German Civil Code exp1icitly authorizes
the recovery of money damages for pain and suffering. The draftsmen of the Civil Code
clearly regarded this provision of § 847 as an exception to the general rule laid down in §
253: that no money damages can be recovered for an injury to non-pecuniary interests.
Neither the Civil Code nor any auxiliary statute provides for the recovery of nonpecuniary damages by a person whose "right of personality" has been injured. Thus when
the tort of injury to a person's "personality right" was first developed by the German
courts, it was initially thought that a plaintiff, while perhaps entitled to the publication of a
retraction or to similar non-monetary relief under § 249, could not recover money
damages without proof of what we would call "special damage," i.e., loss of his job, loss
of customers, or the like. The plain language of § 253 indeed appears to preclude the
plaintiff in such a case from recovering "general" damages for his soiled reputation and
injured feelings.
In 1958, however, the German courts broke away from this restriction seemingly
imposed by § 253. The occasion was the so-called Herrenreiter case (the case of the
gentleman horse-back rider). That case involved a picture of the plaintiff, a well-known
equestrian, elegantly positioned on horseback while jumping over a hurdle. Without
plaintiff's authorization, the picture was publicly and widely disseminated by the defendant
as part of an advertisement promoting a sexual stimulant. The plaintiff's "personality right"
was seriously injured by this advertisement, not only because it conveyed the impression
that the plaintiff had sought to commercialize his great reputation as a sportsman, but also
because it implied that he needed and used sexual stimulants.
The lower courts awarded the plaintiff a substantial sum of money as damages for
the injury to his reputation and feelings. The BGH affirmed, essentially on the ground that
§ 847 of the Civil Code should be extended by analogy to cover the case at hand. This
analogy argument was questionable, because the word "only" in § 253 explicitly prohibits
an analogical extension of provisions, such as § 847, which engraft exceptions upon the
general rule of § 253. Recognizing this, the BGH subsequently abandoned the analogy
argument; but the result reached in the Herrenreiter case was reaffirmed in later cases, on
the ground that in many situations the tort of injury to a person's "personality right" – a
tort developed in response to value judgments expressed in the Constitution – would be
without an adequate remedy if the victim of such a tort could not recover money damages
for the violation of his non-monetary interests.
The BGH limited the breadth of these rulings by further holding that such a cause
of action for money damages should be recognized only if (a) the injury to the plaintiff's
"personality right" is substantial, and (b) the defendant's act is sufficiently culpable to
justify the rendition of a money judgment in a sizeable amount. According to the BGH,
both conditions, (a) and (b), are clearly satisfied in a case in which a defendant, by way
of large-scale promotion of his own commercial interests, has wantonly violated the
plaintiff's "personality right." The repetition of such intolerable conduct, the BGH held,
should be prevented by announcing a rule of tort law which makes it clear to would-be
violators that such conduct is costly for them.
In the decisions dealing with this question, the BGH also pointed to the drastic
technological and social changes that have taken place since the enactment of the Civil
Code. The development of mass media, hardly predictable in 1900, makes the protection
of an individual's personality right more important and more difficult in our day. Therefore,
the BGH held, a court which takes the value system of the Constitution seriously can no
longer feel bound by § 253 of the Civil Code insofar as that provision denies recovery for
non-pecuniary damages even in cases of grave injuries to an individual's personality right.
The lower courts, after some initial reluctance on the part of some of them,
generally followed these holdings of the BGH, which were approved, also, by the majority
of the commentators. In the instant case, both the lower courts and the BGH itself based
their decision on those previous holdings.
The defendants' constitutional complaint was based mainly on the following
provisions of the German Federal Constitution:
Art. 5. ... Freedom of the press and freedom of reporting by broadcast and film are
guaranteed. ...
These rights are limited by the provisions of general (written) laws, by statutory
measures for the protection of juveniles, and by the right of personal honor. ...
Art. 20. ... All of the State's power originates with the People. Such power can be
exercised by the People through elections and ballots, and by special organs of the
legislative, executive and judicial branches of the government.
The legislature is bound by the constitutional order. The executive and the judiciary
are bound by statute and law.
In particular, the defendants argued that the substantive rule pursuant to which the
lower courts ordered them to pay money damages to the plaintiff had been created by the
courts in violation of the principle of separation of powers laid down in Art. 20 of the
Constitution. The BGH, they argued, had acted contra legem when it developed the right
to money damages for violation of an individual's "personality right." This, it was
contended, was a usurpation by the courts of legislative power.
The defendants did not question the constitutionality of the view that the personality
right of a person is one of the "other rights" mentioned in the first paragraph of § 823 of
the Civil Code. Their attack was directed only against the decisional rule which-contrary to
the language of § 253 of the Civil Code-permits a plaintiff whose personality right has
been gravely injured to recover a money judgment for non-monetary damages.
The defendants did not deny that the recognition of plaintiff's personality right as
one of the "other rights" protected by § 823 of the Civil Code was in part dictated by
Arts. 1 and 2 of the Constitution. But they argued that the rights derived from Arts. 1 and
2, like other human rights protected by the Constitution, are essentially defensive in nature.
For this reason, the defendants contended, it is not possible to treat those constitutional
provisions as the direct foundation of a cause of action for money damages.
In addition, the defendants argued, the money judgment rendered by the courts
below violated the constitutional principle of freedom of the press. In the defendants' view,
the money damage rule developed by the courts and applied in this case did not constitute
the kind of "general (written) law" which pursuant to Art. 5 of the Constitution may be
used by the lawgiver to limit the freedom of the press.] The constitutional complaint is
unfounded.
I
The litigation which gave rise to the judgement under attack was a civil proceeding,
to be determined in accordance with the principles and rules of private law. The Federal
Constitutional Court does not review the interpretation and application of private law as
such. However, the value system reflected in the Constitution's guarantees of fundamental
rights has an impact upon all areas of law, including that of private law. To make sure that
this "radiation effect" of the Constitution be properly observed is one of the functions of
the Constitutional Court. Our Court, therefore, must examine whether the decisions of the
civil courts are based on a basically incorrect view of the scope and effect of a
fundamental constitutional right, or whether the result of such a decision itself violates
fundamental constitutional rights of one of the parties [citations.]
In the instant case the complainants [i.e., the defendants, who have filed the
constitutional complaint] not only oppose the result reached by the civil courts; they object
above all to the manner in which those courts have reached such result. The complainants
argue that an ordinary court is bound to obey the written law, and hence is not permitted
to award monetary damages in cases of this kind. This argument compels us to reflect
upon the nature and limits of the judicial function as outlined in the Constitution. We must
examine the question whether decisions such as those rendered by the courts below can
be arrived at by way of judicial application of the law. A judge may not proceed in an
arbitrary manner when he seeks to implement the value concepts of the Constitution in his
decisions. He would likewise violate the Constitution if he reached a result in accord with
the value concepts of the Constitution but did so by employing a method exceeding or
disregarding the constitutional limits imposed upon the exercise of the judicial function. The
Federal Constitutional Court would have to review, and object to, a decision thus reached.
[The court next discusses the “general right of personality” asserted by the plaintiff.
Noting that such a right has long been recognized by the BGH and legal scholars alike,
the court finds no reason to question that right on constitutional grounds.]
The first paragraph of § 823 of the Civil Code is a "general written law" within the
meaning of Art. 5 of the Constitution. [The Court then points out that under the terms of
Art. 5 the freedom of the press can be limited by an "allgemeines Gesetz," or "general
written law." As the protection of a person's personality right is derived from § 823 of the
Civil Code (clearly a "general written law"), it is plain that the courts did not violate Art. 5
when they recognized that injury to a person's personality right may constitute a tort.] ...
II
When a "general written law" potentially limits the freedom of the press, the
question arises how such limitation is to be made effective; this question must be
answered exclusively in accordance with the terms of such written law. It follows that only
the sanctions authorized by such written law may be used against the press to limit its
freedom. This is where the argument of the complainants comes in: they contend that
there is no "general written law" authorizing a money judgment to compensate for nonmonetary damages suffered as a result of injury to the plaintiff's personality right. Section
253 of the Civil Code, they argue, explicitly precludes such a money judgment.
Complainants further assert that by granting such money judgments the courts have
exceeded the boundaries within which they are permitted by the Constitution to limit the
freedom of the press. ...
The Federal Constitutional Court can examine only the constitutional aspects of
these decisions [i.e., of the decisions which permitted recovery for money damages in
cases of injury to a plaintiff's personality right]. From the standpoint of constitutional law,
there are two questions: first, whether the substantive result brought about by that line of
decisions violates the fundamental right of freedom of the press; and secondly, whether it
is consistent with the Constitution to reach that result through judicial decisions in spite of
the lack of an unequivocal basis in the written law. ...
III
[In this part of the opinion, the Court addresses the first of the two questions just
formulated. It calls attention, first of all, to the fact that money judgments for violation of a
plaintiff's personality right can be entered, and have been entered, not only against the
press, but against other defendants as well. The line of decisions in question thus does
not in any way discriminate against the press.
The Court further refers to the fact that the imposition of monetary damages for
injury to non-monetary interests is not a sanction a1ien to the German legal system. This
is shown by § 847 of the Civil Code. A substantive rule extending this sanction to cases
of injury to the plaintiff's "personality right" is not unconstitutional, provided the rule is
subject to proper safeguards. The rule developed by the BGH does contain the necessary
safeguards. It applies only where remedies other than a money judgment, (e.g., an
injunction or a judgment ordering the defendant to publish a retraction) are impossible or
inadequate. Furthermore, the rule developed by the BGH subjects the defendant to a duty
to pay money damages only in cases where the injury to plaintiff's reputation and feelings
is a grave one, and where the defendants' conduct can be characterized as seriously
culpable. For these reasons, the Court concludes that the limitations which the BGH
decisions (in a1lowing money damages for injuries to plaintiff's reputation and feelings)
have imposed upon the freedom of the press, must be regarded as reasonable.
The opinion contains a hint to the effect that Art. 5 of the Constitution might be
violated if in cases of this kind the courts permitted the recovery of excessively large
amounts of damages. There is, however, no indication that the German courts are
excessively generous in assessing such damages. In the instant case, in any event, the
amount awarded to the plaintiff is distinctly modest.
The second of the two questions formu1ated by the Court at the end of Part II of its
opinion relates not only to Art. 5 of the Constitution (freedom of the press), but equally to
Art. 20 (separation of powers). The Court turns to that question-the crucial question in the
case-in Part IV of its opinion.]
IV
The judge is traditionally bound by the Gesetz (written law). This is an inherent
element of the principle of separation of powers, and thus of the rule of law. Our
Constitution, however, in Art. 20 has somewhat changed the traditional formulation by
providing that the judge is bound by "Gesetz und Recht" [i.e., written law and (other)
law]. According to the generally prevailing view, this implies the rejection of a narrow
positivistic approach predicated solely upon the written law. The formulation chosen in Art.
20 keeps us aware of the fact that although Gesetz and Recht in general are coextensive,
this is not necessarily always the case. The legal order is not identical with the aggregate
of the written laws. Under certain circumstances there can be law beyond the positive
norms enacted by the State-law which has its source in the constitutional legal order as a
meaningful all-embracing system, and which functions as a corrective of the written norms.
To find this law, and to make it a reality through their decisions, is the task of the courts.
The Constitution does not confine the judge to the function of applying the language of
legislative mandates to the particular case before him. Such a concept [of the judicial
function] would presuppose that there are no gaps in the positive [written] legal order-a
condition which in the interest of legal certainty might be postulated as desirable, but which
in practice is unattainable. The judge's task is not confined to the ascertainment and
implementation of decisions made by the legislator; he may be called upon, through an act
in the nature of a value judgment (an act which necessarily has volitional elements), to
bring to light and to realize in his decisions those value concepts which are immanent in
the constitutional legal order, but which are not, or not adequately, expressed in the
language of the written laws. In performing this task, the judge must guard against
arbitrariness; his decision must be based upon rational argumentation. He must make it
clear that the written law fails to perform its function of providing a just solution for the
legal problem at hand. Where this is so, the gap thus found is filled by the judge's
decision in accordance with practical reason and "the community's established general
concepts of justice" [citation].
In principle, this duty and power of the judge to render "creative decisions" has
never been questioned since the adoption of our present Constitution [citations]. The
courts at the apex of our judicial hierarchies have claimed such power from the beginning
[citations]. It has always been recognized by the Federal Constitutional Court [citations].
The legislator himself bestowed upon the highest courts [i.e., the courts at the apex of
each of the five judicial hierarchies] the task of "further development of the law" (see
§ 137 of the Law on the Organization of Courts).
[The Court here refers to the functions of the super-panels of the BGH and the
other highest courts. The super-panels can be called upon to decide a case (a) when
there is a conflict or potential conflict between two regular panels, or (b) when the regular
panel (to which the case has been assigned) concludes that, because of the fundamental
importance of the issue presented, a super-panel decision is required in the interest of
"the further development of the law." See § 137 of the German law on the Organization
of Courts.]
In some areas of the law, such as labor law, this task has become particularly
important, because legislation has not kept up with the rapid flow of social development.
There remains only the question of the limits which have to be imposed upon such
creative [judicial] decision-making, keeping in mind the principle that the judge is bound
by the written law, a principle that cannot be abandoned if the rule of law is to be
maintained. Those limits cannot be capsulized in a formula equally applicable to all areas
of the law and to all legal relationships created or controlled by the law within those areas.
For purposes of the present decision, the question just posed can be confined to
the area of private law. In that area, the judge confronts a great codification, the Civil
Code, which has been in force for over 70 years. This has a dual significance: in the first
place, the freedom of the judge creatively to develop the law surely grows with the "aging
of codifications" [citation], with the increased distance in time between the enactment of
the legislative mandate and the judge's decision of an individual case. The interpretation of
a written norm cannot always, for an unlimited period of time, remain tied to the meaning
which the norm has been given at the time of its enactment. One has to explore what
reasonable function such norm might have at the time of its application. The norm remains
always in the context of the social conditions and of the socio-political views with which it
is intended to interact; as these conditions and views change, the thrust of the norm can,
and under certain circumstances must, be adjusted to such change. This is true especially
when between the time of the enactment of a written law and the time of its application
the conditions of life and peoples' views on matters of law have changed as radically as
they have in the present century .The judge cannot, by simply pointing to the unchanged
language of the written law, avoid the conflict that has arisen between the norm [as
written] and the substantive notions of justice of a changed society. If he is not to be
derelict in his duty to hand down decisions based on "law," he is forced to manipulate the
legal norms more freely. Secondly, as experience demonstrates, legislative reforms
encounter particularly great difficulties and obstacles when they are intended to revise a
great codification, such as the Civil Code covering our private law, which has put its stamp
on the system and character of the whole legal order.
[The court here emphasizes the special difficulty of legislative revision of a
comprehensive, integrated code. The implication is, of course, that when reform becomes
necessary, and legislative revision cannot be brought about, the need for judicial
development of the law increases.]
The question dealt with by the decisions presently under attack [i.e., the question
of recoverability of money damages for injury to a non- monetary interest] was
controversial already at the time when the preparatory work on the draft of the Civil Code
was in progress [citations]. The solution chosen by the legislator immediately ran into
criticism – criticism which at that time did not yet involve any constitutional arguments.
That criticism has never ceased. The critics were able to point to the development of the
law in other countries of the Western world, where a more liberal approach has been
taken toward the possibility of recovering money damages for injuries to non-monetary
interests. [The Court here cites extensive comparative studies]. It was pointed out that
only in Germany, and nowhere else in the Western world, could one observe large
numbers of cases in which an unlawful act – causing "merely" non-monetary damages –
remained without any civil sanction. The rule which permits the recovery of money
damages for injury to non-monetary interests only in a few enumerated special cases –
which special cases, moreover, were selected without much logic – was characterized as a
"legislative failure" [citations]. Criticism became even sharper after the courts, under the
influence of "the Constitution's force of shaping private law" [citation], had taken the step
of recognizing the general right of personality. The gap that existed in the remedies
available for a violation of that right thus became visible. This problem, the importance of
which could not be perceived at the time when the Civil Code was drafted, now urgently
demanded a solution responsive to a changed awareness of legal rights and to the value
concepts of a new Constitution. Such a solution could not be deduced from the
enumeration requirement of § 253.1*
1**
The expression "enumeration requirement" may call for some explanation. Section 253 of the
Civil Code does not itself enumerate the instances in which a money judgement for injury to nonmonetary interests is recoverable. But, using a method which might be described as enumeration by
The courts were faced with the question whether to close this gap by the methods
at their disposal, or whether to wait for the intervention of the legislator. When the courts
chose the first alternative, they were able to refer to the writings of influential legal authors
who previously had advocated that course [citation]. From the beginning, the relevant
[innovative] decisions of the BGH and of other courts were widely approved by legal
scholars [citations]. This shows that these decisions were in accord with generally
recognized concepts of justice, and were not regarded as intolerable restrictions upon
freedom of opinion or freedom of the press. ... Insofar as there was criticism of these
decisions, such criticism was directed less against the result reached by the BGH than
against the methodological and doctrinal considerations invoked by the courts to justify the
new approach. To the extent that this involves methodological questions in the area of
private law it is not within the province of the Federal Constitutional Court to determine the
validity of the objections raised by the critics. But it should not be overlooked that the
majority of the authors who are specialists in the area of private law apparently regard the
reasoning of the courts as dogmatically unobjectionable [citations]. Moreover, the
discussions of the Private Law Section of the Society for Comparative Law, at its 1971
meeting in Mannheim, demonstrate that the position which the BGH has taken concerning
this question is largely in harmony with the course of the law in other countries [citations].
From the standpoint of the Constitution, one cannot object to a result which was reached
in a manner at least arguably acceptable in the private law area, and which does not (or
at least not obviously) run counter to the rules of interpretation developed in that area; this
is particularly true when, as here, that result serves to implement and effectively to protect
an interest which the Constitution itself regards as central to its value system. Such a
result is "law" in the sense of Art. 20 of the Constitution. It does not contradict, but
supplements and develops the written law.
The other alternative, to wait for legislative regulation, under the circumstance
cannot be regarded as constitutionally mandated. It is true that the Federal Government
reference, that section provides that such a money judgment can be recovered only in the cases provided
for (or enumerated) in other code sections or statutes. German courts and legal writers, therefore, often
speak of the "enumeration requirement" or "enumeration principle" embodied in § 253.
has tried twice to bring about a legislative solution of the problem of private law protection
of an individual's personality right. But the bills drafted in 1959 and 1967 died early in the
legislative process, even though there was no indication of any legislative intention to
perpetuate the status quo. The judge, who is compelled to decide every case submitted to
him, thus cannot be blamed if he becomes convinced that he should not, in reliance upon
a wholly uncertain future intervention of the legislator, adhere to the literal meaning of the
existing written law in a case in which such adherence would to a large extent sacrifice
justice.
The method by which the BGH reached the decisions in question is constitutionally
unobjectionable also for a further reason: this method deviated from the written law only to
the extent that such deviation was absolutely necessary in order to resolve the legal
problem presented by the concrete case at hand. The BGH has not regarded § 253 in its
entirety as no longer binding. Nor has it treated that provision as unconstitutional. ... The
BGH has left intact the principle of enumeration expressed in § 253, and has merely
added one situation to the legislator's own enumeration of situations in which money
damages can be recovered for injury to non-monetary interests; this one addition appeared
to the BGH to be compellingly justified by the evolution of social conditions, and also by a
new law of higher rank, to wit, Arts. 1 and 2 of the Constitution. The BGH and other
courts which followed its holdings thus have not abandoned the system of the legal order,
and have not exhibited an intention to go their own way in making policy; they have
merely taken a further step in developing and concretizing basic ideas that are inherent in
the legal order molded by the Constitution, and they have done so by means which remain
within the system [citations]. The legal rule thus found is, therefore, a legitimate part of
the legal order; and as a "general Gesetz" within the meaning of Art. 5 of the Constitution
it limits the freedom of the press. The purpose of that rule is to fashion and guarantee, by
the methods of private law, an effective protection of the individual's personality and dignity
– i.e., of interests that stand at the center of the constitutional ordering of values – and
thus, within a particular area of the law, to strengthen the effect of constitutionally
protected fundamenta1 rights. For these reasons, the constitutional arguments of the
complainants must fail. ...