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A history of Germanic private law online

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different system. In the one view, which was formerly followed
by the imperial courts, the preferment of the line was entirely
disregarded and the degree of kinship between the decedent and
the more remote collaterals was made decisive (pure " gradual "
succession of the Roman law). In the other view, which prevailed
in some princely houses, advantages in degree of kinship were
disregarded, and the next line called to the inheritance without
regard to the degree of kinship and with absolute enforcement of
the right of representation (pure " lineal " succession). There
can be no doubt, however, that the " lineal-gradual " system of
succession, that is the parentelic system, alone satisfied the require-
ments of the " Libri Feudorum ". In Germany, also, this found
wide acceptance, and according to the better view was regarded
as the common law ; being observed as such, for example, in the
judicial practice of Mecklenburg, Brunswick, Hamburg, and
Wiirttemberg. It was frequently united with the principle of
primogeniture, so that as between several lines of equal degree
preference was given to the line of the first-born, and within that
again to the first-born. The authority of common law was also
claimed, by many scholars, even for the other theories ; and some
statutes recognized pure " lineal " succession, — for example the
Prussian " Landrecht " and the Bavarian Feudal Edict. Under
the Lombard feudal law different principles prevailed according
as a descendant or a collateral kinsman (an " agnate " in the sense
of the feudal law) succeeded, the death of the feudal tenant giv-
ing him succession, also, in such tenant's allodial lands. Such
an " agnate " might refuse the allodial estate and take the fief
alone, in which case he became liable, not for the general, but
only for the feudal obligations of the deceased. But the descend-
ant had no such right to refuse the estate ; on the contrary he was
bound to accept the allodium with the fief, and therefore all the
liabilities of the deceased as well. The power which was thus
accorded to the " agnate " was justified by the fact that he did
not acquire the fief from the last, but rather from the first, tenant ;
that is, from the common male ancestor of the " agnate " and the
vassal last deceased, or as it was said " ex pacto et providentia



maiorum." This distinction, although not everywhere accepted,
passed over into the common law, notwithstanding that the succes-
sion of descendants was also conceived of later as a " successio ex
pacto et providentia maiorum." Wherever the right of renun-
ciation was also given to descendants it was therefore said, — in
order to remain consistent with the " Libri Feudorum ", — that
there existed a " family " (" Stamm- ") fief, a " feudum ex pacto
et providentia maiorum." This was contrasted with a heritable
fief, a " feuda hereditaria ", in the case of which the right of re-
nunciation was denied equally to collaterals and descendants.
However, this distinction remained a much debated one.

When the fief was not willed to one alone of several feudal
heirs in equal degree, each generally succeeded to a part under
the Lombard feudal law, according to the principles of quotal co-
ownership (supra, p. 343) ; but in German legal systems succes-
sion in collective hand was commonly preserved. However, it was
often provided, also, that only one should receive the fief, and
indemnify the others ; in which case, in some systems, fixed
principles in the nature of primogeniture or of entail applied.
In Mecklenburg, in case one of several feudal heirs demands a
dissolution of the herital community, the one who shall take the
estate is determined by lot (" Kavehmg "). The estate is then
assigned him at a " reasonable and brotherly price ", and the value
thus determined serves as a basis in determining the indemnity
due to the others.^

§ 115. Succession to Entailed Family Estates and under Family
Trust- Entails. (I) That the Entailed family estate (" Stamm-
giitcr ") of the greater noble houses, as estates limited
(" gebundene ") by an irrevocable right in expectancy in favor
of kindred entitled to the inheritance, were subjected by autono-
mous enactment to special rules of succession, has already been
remarked (supra, pp. 308 etseq.). Ordinarily a rule of individual
succession was established, and in a majority of cases primogeni-
ture. An indemnity was required for after-born sons and
daughters which was ordinarily less than the compulsory portion
required in other systems.

(H) Succession under family trust-entails (fideicommissa) was
likewise subjected, as already mentioned (supra, p. 315), to a
special rule adapted to the purpose of the institute, and based
upon the feudal principle of " successio ex pacto et providentia
maiorum." Ordinarily the donor appoints the order of succes-

1 Stohbe, V, 347.


sion for the fideicommissiim in the deed of donation. If this is
not done, and if no alternative statutory order is provided, then
the ordinary statutory rule of succession appHes. Succession
under fideicommissa is almost always individual succession with
preferment of greater age (" Majorat " in the wider sense), as
contrasted with the preferment of lesser age (" Juniorat "),
which occurs only rarely in family fideicommissa. This " ma-
jorat ", in the broad sense, may assume various forms :

{A) " Seniorat " (seniority). In this system the oldest member
of the entire family succeeds, without regard to the line or degree
of kinsliip. Modern statutes, as for example, the Prussian
" Landrecht ", have abolished seniority or have excluded it by
prescribing other systems.

{B) "Majorat" in the narrow sense. — In this the estate
goes to the nearest kinsman of the last occupant capable of inherit-
ing, according to the degree of kinship. As between several per-
sons entitled in the same degree preferment is given to greater age.
In the application of this principle in its pure form the right of
representation plays no part, so that for example the younger
son of the last possessor precedes a grandson of an older son already

(C) Primogeniture, which is also the rule under family trust-
entails. In this, in accord with the principles of the parentelic
system, the nearer parentelic group precedes the more remote,
and within each parentelic group the elder line precedes the
younger ; at the same time the right of primogeniture prevails,
along with absolute enforcement of the right of representa-
tion. Therefore the son and grandson of an elder son precede a
younger son of the last possessor. In case cognates possess a
subsidiary herital right, then, in case of complete extinction
of the male line, that cognate succeeds to the inheritance who
is the nearest kinsman, capable of inheritance, of the last pos-
sessor; whence the preferment of " Erbtochter " and their de-
scendants to " regressive " female heirs and their issue (supra,
p. 749). Once the fideicommissum, however, has passed to the
female line, the preferment of males again becomes immediately

Secundo-, tertiogeniiure, etc. are family fideicommissa that are
established for the second, third, etc. line of a family. Therefore,
if one line of entail becomes extinct the fideicommissum passes
to the second. If all become extinct it reverts to the main
(" Haupt- ") line.



§ 116. Succession in Peasant Estates.^ — Even in the case of
peasant holdings the general principle prevailed, theoretically,
in the Middle Ages, that heirs of equal degree divided the heritage.
However, as already mentioned (supra, pp. 709 et seq.) attempts
were made in various ways to minimize the danger to the free agri-
cultural population that was involved in a parcellation of land.
When land was inherited by common heirs it was customary in
many regions to abandon it to one of them, the so-called " Anerbe "
(" single ") heir ; but the others, originally, might remain sitting
on the land until their rights were redeemed. Again, the father'
frequently designated one of his sons as his principal (" Haupt- ")
heir, either himself indemnifying the other sons at the same time,
or imposing upon such principal heir the duty to indemnify them.
The impartibility of the estate might also be established by con-
tract. In regions subject to manorial law it was customary for
the lords to promulgate for their manors independent rules of
inheritance which, in the lord's interest, excluded partition.
There was thus developed, — for the most part by the growth of
customary law, but in places by virtue of statutory rules, — a
herital system for peasant estates which was the counterpart for
such holdings of the special order of succession in noble houses,
and which was ordinarily known as " Anerbenrecht " (system of
single heirship). In some rural districts this system was main-
tained in modern times, and down even to the present day. It
was adopted and regulated in many Territorial ordinances of the
1600 s and 1700 s ; for example in Schleswig-Holstein, Brunswick,
Lippe, Schaumburg-Lippe, Altenburg, Waldeck, and in the ad-

^ V. Miaskowski, "Das Erbreeht und die Grundeigentumsverteilung im
deutsehen Reiche", in S. Ver. Soz. Pol., XX (1882) and XXV (1884).
Frommhold, "Die reehtliche Natur des Anerbenrechts " (1886); v.
DuUzig, op. cit., p. 713 supra; Hermes, art. "Anerbenrecht", in H. W. B.
Staatsw., I (3d ed., 1909), 470-481; Sering, art. "Vererbnng des liind-
lichon Grundbesitzes", in W. B. der Volksw., II (3d ed., 1911), 1137-1146,
and "Erbreeht und Agrarverfassung in Sclileswig-Holstein auf geschicht-
lieher Grundlage, mit Beitriigen von Lerch, Petersen und Biiehner", Vol.
VII (1908) of "Die Vererbungdes liindlichen Grundbesitzes im Konigreich
Preussen"; with which compare Pappenheim in Z'. R. G., XXX (1909),
429-436; Guggenheim, "Das biiuerliche Erbreeht des schweizorischen
Zivilgesetzbuchs verglichen mit dem kantonalen Recht und den deutsehen
Anerbenrechten, in "Ziirieher Beitriige zur Rechtswissenschaft ", XXV
(1909) ; Clasen, " Sehleswig-Holsteinisches Anerbenrecht in seiner ge-
schichtlichen und heutigen Gestaltung" (Rostock dissertation, 1912);
Rorig, " Agrargeschichte und Agrarverfassung Schleswig-Holsteins, vor-
nehmlieh Ostholsteins", in Z. Ver. Liibeck. G. A. K., XIV (1912), 137-
150 ; Reineke, "Die Entwieklung des biiuerliehen Erbreehts in der Provinz
Westfalen von 1815 bis heute", in E. Frhr. v. Kerckerinck zn Borg, editor,
"Beitriige zur Geschichte des westfalischen Bauernstandes" (1912), 107-



ministrative district of Cassel. This law of single-heirship, thus
handed down from ancient times, was very commoidy treated as
a " juniorat ", in Schleswig-Holstein mainly as a "majorat", and
more rarely as a "minorat." In some localities, although by no
means everywhere, it was a compulsory right, testamentary dis-
positions to the contrary and partition of the land being prohibited.
The extent to which the single-heir was preferred varied. Fre-
quently, his right took the form of a special right of inheritance
in the estate, as compared with which the other brothers and sisters
enjoyed either a mere ordinary right of inheritance in the re-
mainder of the heritage, or at most a right to be indemnified out
of the land (" Hof ").

It is possible that the rule of ultimogeniture (" Jiingstenrecht ")
goes back, in origin, to the youngest son's right of choice indicated
in the Sachsenspiegel {supra, p. 709).

The principle of the testator's dispositive freedom, which
acquired supremacy with the reception of the Roman law, was
necessarily hostile to the rights of the single-heir. In fact it had
already restricted the territory within which this prevailed to one
of relatively slight extent when the measures of agricultural re-
form that were adopted at the beginning of the 1800 s also deprived
the system of its essential material basis ; and modern theories
of economics denied it any sound justification in principle. Con-
sequently, in the greater number of German States it was done
away with either simultaneously with the promulgation of the
statutes for the emancipation of the peasants or soon thereafter.
As a custom of the peasantry it continued to enjoy the miserable
existence of an institute that was gradually losing all vitality
and was apparently destined to complete disappearance. In the
second half of the 1800 s, however, a different view became pre-
dominant ; one which had its origin precisely in these old regions
of single-heirships in Northwestern Germany. This view regarded
the common law of inheritance as a great obstacle to the preser-
vation of a strong peasantry. It was now endeavored, therefore,
to fortify and further develop the principles of the system of single-
heirship by special legislation. For this purpose, after Bavaria
and Baden had led the way in the 1850 s without any great suc-
cess, there was introduced, at first only in certain districts of
Prussia and other States, an " indirect " or " mediate " intestate
right of single-heirship so devised as to apply exclusively to such
holflings as had been entered at the instance of their owners in a
"roll" of the estate (" Hoferolle ", " Landguterrolle "). The



model for this system was found in a Hanoverian Ordinance of
Rural Estates of 1874, which was followed by similar ordinances
in Lauenburg, Westphalia, the administrative district of Cassel,
Brandenburg, Schleswig-Holstein, and Silesia, as well as by " Hofe-
gesetze " in Oldenburg and in Bremen. Inasmuch, however,
as this system proved unsatisfactory, a " direct " right of single
heirship was either introduced anew or newly regulated by more
modern statutes. This was done in Prussia (1896) in the case of
lands subject to rent charges (" Rentengiiter ") and colonial
(" Ansiedelungs- ") estates {supra, p. 289) ; in Westphalia and
in five administrative circles of the Lower Rhine (1898) ; in Baden
(1888, 1898) as regards impartible manorial estates in the Black
Forest ; in Brunswick and in Schaumburg-Lippe. In Mecklen-
burg single-heirship and impartibility had already been pre-
scribed for heritable leaseholds by statutes of 1869 and 1872.
Under these statutes certain classes of estates, which are spe-
cifically described, are subject by rule of law to rights of single-
heirship that take immediate effect in the absence of specific
testamentary disposition. Such lands are noted in the land-
book, at the instance of the registry ofiicials, as lands sub-
ject to single-heirship. Other lands subject to single-heirship
may be registered at the instance of the parties interested. In
this form, also, the right of single-heirship is " a special rule of
succession in the land with all its appurtenances 'V but it is not
a right in expectancy that restricts the testator. He is entitled,
in the first instance, to designate the single-heir ; in default of
such designation, the descendants and brothers and sisters of the
decedent, together with their descendants, become entitled in
order of age, with preferment of the male sex. In many places a
right of single-heirship also exists in favor of a surviving spouse.
Co-heirs have a claim to indemnity, for the calculation of which
exact rules are prescribed. Under the law in its latest form an
indemnification that remains unpaid may be registered against the
land as a rent. The Swiss Civil Code has endeavored to attain
the same end as the German Code by the provision (§ 620), that
in case a cultivated farm is included in the estate, and one of the
heirs declares his willingness to undertake its management and
appears fitted to do so, it shall be assigned to him as a whole, in so
far as it constitutes a natural unity for purposes of agriculture,
subject to the indemnification of the others. If the neces-
sary indemnities would charge the land to an amount exceeding
^ Gierke in Holtzendorff-Kohler, I, 558.


three-fourths of its calcuhited value, the person assuming the
management may demand a postponement of partition. In this
case the co-heirs constitute a community of collective hand in the
produce (§ 622).



Accession of fixtures, 433-434.

Accident. See Liability.

Acquests, folk-law period, 627-628 ;
medieval period, 630, 639, 640,
641 ; modern period, 646, 647,
653. See Marital Property.

Act of God. See Damages.

Adoption, by father, of his legitimate
child, 43-44 ; same, the basis of
his mundium, 659 ; adoption by
strangers, 660-662 ; same, and
gifts mortis causa, 740-742 ; same,
to create artificial heirs (Frankish
"affatomie" and Lombard "gaire-
thinx"), 189, 661, 741, 754.

Adultery, in law of divorce and
mundium, 613, 615, 616; 617-618.

"Affatomie." *See Adoption.

Age periods, youth, 54-59 ; old age,

Agistment, 553.

Agrarian reform, enclosures, 124-
125 ; land charges, redemption
of, 367, 368 ; ownership, doctrine
of. 234; peasant holdings, 330-
332, 347.

Alienations, restraints on. See

Aliens, early law of alienage, 73-
77 ; modern law of alienage, 77-
79 ; right of hospitage, 74 ; Jews
as aliens, 84; "landsassiatus",
76; strangers in the mark, 121.

Allod, 181, 250, 309, 341, 346, 348,

"Altenteil." See Succession.

"Anefang" procedure, in recovery
of lost or stolen chattels, 411-414.

"Anerbenrecht." See Succession.

Animals, damage by, see Obliga-
tions ; occupancy of wild, 426.

Annuities. See Rents.

"Anstalt" (foundation), 122, 153,
154, 155, 159, 321, 738.

Antichresis, 386.

Apiculture, law of, 427.

Apprenticeship, 559.

Appurtenances. See Things.

Associations ("Genossenschaften"),
generally, 110-159; classification
of, 112; concept and nature,
110-114, 151, 157.

Medieval, generally, 110-111,
149-150, 151, 157-159, 230, 680;

associations in strict sense ("Ge-
nossenschaften"), 110, 113, 125-
127, 136, 138, 146-147; same,
original mark-associations as, 120,
149; same, sib as, 114-116;
associations in collective hand
("Gemeinderschaften"), 139-146,
150-151, 234, 235-236, 2-59, 288,
305, 307, 425, 587-588, 640, 694,
695 ; corporate associations

("Korpersehaften"), 29, 122-124,
133, 135, 136; same, universities
as, 138 ; same, of knightage, 139,
146, 147-150, 155, 288 ; corpora-
tion, Germanic theory of the
" Korperschaf t " and Roman
theory of the "Korporation",
150, 151-159, 177; distinction
between " Genossenschaf t " and
"Gemeinderschaft", 14, 146, 150-
151; between " Genossenschaf t "
and "Korperschaft", 112-114,
119, 120, 122-124, 146, 147; be-
tween "Korperschaft" and "An-
stalt" (foundation), 155; between
"Korperschaft" and "Korpora-
tion", 113, 155, 177.

Types primarily economic in
nature, (1) agrarian: Alpine, 127;
assart unions, 111, 119, 126;
farm-communities, 125-126 ;

mark-associations, 118, 120-125;
peasant, 118, 141-142; sib, 115;
vineyard, 127 ; Avoodland, 126-
127 ; ownership form in agrarian,
236; (2) capitalistic, 136;
(3) dike, 127, 287-289; sluice,
290; (4) herital, 142-144, 145,
236, 710; (5) hunting, 277;
(6) industrial, 135-136; craft,
128-135; mining, 127, 294-296,
301-302; minters', 135; trade-
unions, modern, 135; salters',
304; (7) transportation, 112,
127-128; port, 117; (8) water,
associations for usufruct of. 127,
280, 285 ; fishery associations,
127, 287.

Types primarily political in
nature, 138-139;' associations
of public law, 144.

Types primarily for other social
ends, commensal associations, 130,
136, 138 ; ecclesiastical brother-



hoods, 136; household associa-
tions, 114, 115, IIG, 140, 141,
144-145, G95 ; sib as an associa-
tion, 114-110; universities as,

Types primarily based on
vicinage, 115; village communi-
ties, 117-118, 121, 123; mark-
associations and village communi-
ties distinguished, 117; personal
associations of peculiar privileges
in hind within village communi-
ties, 124.

.Sec Collective Hand ; Cor-
poration; Mark Association,
for details.
"Avunkulat." See Family.

Bailments, obligation of bailee,
529-530, and see Chattels (re-
covery of) ; deUvery in modern,

Bastards. See Children.

Benefices. See Tenure.

Betrothal, generaUy, 597-600, 601-
602; legal effects of, 601; be-
trothal and dower, 598, 601 ;
self-betrothal, its effect on nuptial
investiture, 602; "sponsalia de
futuro" and "de praesenti", 606-
608. See ISIarriagk.

Birth, as beginning of capacity for
rights, 13, 42-43, 45; equality
of, the basis of old social estates,
92-94 ; same, in modern law of
the high nobiUty, 99-102 ; legiti-
mate, the basis of paternal power,
659-(J60 ; proof of, 44 ; registrv
of, 44-45.

Bdts, 65, 521-523, 527, 577, 579,

Bottomry pledge, 453-454, 489.

Buildings, as movables, 166; leases
of, 334 ; ownership of, apart
from soil, 172-173 ; ownership of
separate stories of, 174 ; servi-
tudes in, 356.

Burgliers, estate of peasants and,

Canon law, "Canon redinte-
granda", 216; Canonic law of
family, 591; of Jewry, 86; of
kinship reckoning, 719; of mar-
riage, ()04-(i07 ; of succession,
order of, 731. See Divorce.

Capacity, legal, dependent on
physical strength, 70; feudal,
337; for betrothal, (iO; for legal
action, 42; for legal action by
women, 69; for juarriage, 60;
for making negotiable pajxT, 60 ;
for rights, 13, 41-54, (generally,

41-42; beginning of, 42-46;
determination of, 46-54) ; for
testation, 60; for tort liability,
60. See Mundium.

Cattle, distraint of, 442, 450;
pledge of, peculiarities in, 406,
448 ; sales of, peculiarities in,

"Cautio." See Documents.

Chattels, 403-457 ; distinguished
from land, see Things; collec-
tive ownership of, in early law,
119, 425; marital eommunitv
of, 630, 639, 640, 653; medieval
importance of, 164-165, and see
Towns; prescription for, 439-
440 ; registration of interests in,
sec Publicity. iSee o/so Dowry ;
Gifts; Paraphernalia; Title.
Pledge (and mortgage) of, in
old law, 441-447; in modern
law, 447-457 ; real liability in
pledge, 474-475 ; registration of
pledge rights, 446, 448, 453.

Possession and seisin of, 207,
210, 404-407, and see Possession ;

Protection and recovery of, by
self-help, 410, 460; by actions,
407-424 ; publieital i)rinciple of
seisin the key to actions, 162,
406, 408, 41.5, 419, 422; Ger-
manic distinction between volun-
tarv and involuntarv loss of
possession, 213, 408, ^416, 419-
420, 421, 422; same, chattel
law liere different from land law,
408, 409 ; same, difference ignored
in modern law in favor of bona
fide acquirer. 421, 422, 423, 424,
448 ; physical seisin alone pro-
tected in case of chattels, incor-
poreal seisin also in case of land,
408, 419; four exceptions to, or
limitations upon, right of re-
covery, — Hansa privileges, 418,
Jews' privileges, 418-419, pur-
chase in market overt, 413, 417-
418, and voucher to warrant v,
412, 418, 547-549; finding, lay
of, 428-433; "rei vindicatio"
in the common law. 420.

Actions in case of involuntary
loss of possession through hiss or
theft, old law, 407-408. 410-416,
417-420; sam(\ modern law,
421-422; alh)wance of actions
here was inconsistent with law
of seisin. 408. 409, 415, 418;
old "ancfang" action, 411-414;
old action for larcenv or robberv,
410. 420; following the trail,
witli hue and cry, 410 ; increasing



protection of acquirer of lost and
stolen chattels, as commerce i?rew,
41G; receivers of stolen goods,
86, 415, 418.

Actions in case of voluntary
loss of possession, general prin-
ciples, 407-409, 529-530; («) in
medieval law, actions by bailor
against bailee, 529-530 ; same,
against third persons, 408-409,
416-417 ; same, principle of
"Hand wahre Hand", 407^09,
415, 416-417, 420, 439, 529, (in
pledges) 447, 448, 451 ; principle
did not imply transfer of title by
non-owners, 437-438 ; (6) in
modern law, 420, 423-424 ; prin-
ciple of "Hand wahre Haiid",
420, 448, (present law) 423-424;

(c) mere possessor entitled to
actions in modern law, 423 ;

(d) things loaned, recovery of in
specie, 422.

Children, childhood generally, 657-
675; adoption, 43-44, 189, 660-
662, 740-742, 754; bastards,
104, 106-107, 671-676; same,
legitimation of, 107, 675-676 ;
same, modern law concerning,
673-674, 675-676 ; legitimate
children, 657-671 ; same, (1) pa-
ternal power over, 55, 63, 657-
664, 685 ; assimilated to guardian-

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