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The Continental Legal History Series

Published under the auspices of the

Association of American Law Schools



I. A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS,
AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY.
By Various Authors. Translated by Rapelje Howell, F. S.
Philbrick, John Walgren, and John H. Wigmore. S6.00 net.

II. GREAT JURISTS OF THE WORLD, FROM PAPINIAN TO
VONIHERING. By Various Authors. Illustrated. (Extra vol-
ume. By arrangement with John Murray, London.) S5.00 net.

III. HISTORY OF FRENCH PRIVATE LAW. By J. Brissaud, late
of the University of Toulouse. Translated by Rapelje Howell, of
the New York Bar. $5.00 net.

IV. HISTORY OF GERMANIC PRIVATE LAW. By Rudolph
Huebner, of the University of Giessen. Translated by Francis \/
S. Philbrick, of the University of Cahfornia. S4.50 net.

V. HISTORY OF CONTINENTAL CRIMINAL PROCEDURE.
By A. Esmein, late of the University of Paris, with chapters by
Francois Garraud, of the University of Lyon, and C. J. A. Mitter-
maier, late of the University of Heidelberg. Translated by John
Simpson, of the New York Bar. $4.50 net.

VL HISTORY OF CONTINENTAL CRIMINAL LAW. By Ludwig
VON Bar, late of the University of Gottingesn. Translated by
Thomas S. Bell, of the Los Angeles Bar. $4.00 net.

VIL HISTORY OF CONTINENTAL CIVIL PROCEDURE. By

Arthur Engelmann, Chief Justice of the Court of Appeals at Bres-
lau, with a chapter by E. Glasson, late of the University of Paris.
Translated by Robert W. Millar, of Northwestern University.
$4.00 net.

VIII. HISTORY OF ITALIAN LAW. By Carlo Calisse, of the Italian
Council of State. Translated by John Lisle, late of the Philadel-
phia Bar. $5.00 net.

IX. HISTORY OF FRENCH PUBLIC LxVW. By J. Brissaud, late of
the University of Toulouse. Translated by James W. Garner, of
the University of Illinois. $4.50 net.

X. HISTORY OF CONTINENTAL COMMERCIAL LAW. By Paul
HuvELiN, of the University of Lyon. Translated by Ernest G.
Lorenzen, of Yale University. $5.50 net.

XI. THE PROGRESS OF CONTINENTAL LAW IN THE 19TH
CENTURY. By A. Alvarez. L. Duguit, J. Charmont, E. Ripert,
and others. Translated by L. B. Register, of the University of
Pennsylvania. $5.00 net.



THE CONTINENTAL
LEGAL HISTORY SERIES

Volume Four



A HISTORY OF GERMANIC
PRIVATE LAW



THE CONTINENTAL LEGAL HISTORY SERIES

Published under the auspices of the
ASSOCIATION OF AMERICAN LAW SCHOOLS



A HISTORY



OF

GERMANIC PRIVATE LAW

BY

RUDOLF HUEBNER

PROFESSOR OF LEGAL HISTORY IX THE UNIVERSITY OF GIESSEN
TRANSLATED BY

FRANCIS S. PHILBRICK

PROFESSOR OF LAW IN THE UNIVERSITY OF CALIFORNIA
WITH AN EDITORIAL PREFACE BY

ERNEST G. LORENZEN

PROFESSOR OF LAW IN TALE UNIVERSITY
AND INTRODUCTIONS BY

PAUL VINOGRADOFF

CORPUS PROFESSOR OF JURISPRUDENCE IN OXFORD UNIVERSITY
AND BY

WILLIAM E. WALZ

DEAN OF THE FACULTY OF LAW IN THE UNIVERSITY OF MAINE



BOSTON
LITTLE, BROWN, AND COMPANY

1918



Copyright, WIS,
By Little, Brown, and Company.

All rights reserved



NortDooli Iprras

Set up and clectrotypcd by J. S. Gushing Co., Norwood, Mass., U.S.A.

Presswork by S. J. Parkhill & Co., Boston, Mass., U.S.A.



o

u



o



EDITORIAL COMMITTEE

OF THE

ASSOCIATION OF AMERICAN LAW SCHOOLS

Joseph H. Drake, Professor of Law in the University of
Michigan.

Ernst Freund, Professor of Law in the University of Chicago.

Ernest G. Lorenzen, Professor of Law in Yale University.

WxM. E. Mikell, Professor of Law in the University of Penn-
sylvania.

John H. Wigmore, Chairman, Professor of Law in Northwestern
University.



LIST OF TRANSLATORS

Thomas S. Bell, of the Los Angeles Bar.

James W. Garner, Professor of Political Science in the Univer-
sity of Illinois.

Rapelje Howell, of the New York Bar,

John Lisle, late of the Philadelphia Bar.

Ernest G. Lorenzen, of the Editorial Committee.

Robert W. Millar, Professor of Law in Northwestern Uni-
versity.

Francis S. Philbrick, Professor of Law in the University of
California.

Layton B. Register, Lecturer on Law in the University of
Pennsylvania.

John Simpson, of New York.

John Walgren, of the Chicago Bar.

John H. Wigmore, of the Editorial Committee.



366057



I might instance in other professions the obligation men lie under of
applying themselves to certain parts of History; and I can hardly for-
bear doing it in that of the Law, — in its nature the noblest and most
beneficial to mankind, in its abuse and debasement the most sordid and
the most pernicious. A lawyer now is nothing more (I speak of ninety-
nine in a hundred at least), to use some of Tully's words, "nisi leguleius
quidem cautus, et acutus praeco actionum, cantor formularum, auceps
syllabarum." But there have been lawyers that were orators, philoso-
phers, liistorians: there have been Bacons and Clarendons. There ^\ill
be none such any more, till in some better age true ambition, or the love
of fame, prevails over avarice; and till men find leisure and encourage-
ment to prepare themselves for the exercise of this profession, by climb-
ing up to the vantage ground (so my Lord Bacon calls it) of Science,
instead of grovelling all their lives below, in a mean but gainful applica-
tion of all the httle arts of cliicane. Till this happen, the profession of the
law win scarce deserve to be ranked among the learned professions. And
whenever it happens, one of the vantage grounds to which men must
climb, is Metaphysical, and the other, Historical Knowledge. Hexry
St. John, Viscount Bolingbroke, Letters 07i the Study of History (1739).

Whoever brings a fruitful idea to any branch of knowledge, or rends
the veil that seems to sever one portion from another, his name is WTitten
in the Book among the builders of the Temple. For an English lawj^er
it is hardly too much to say that the methods which Oxford invited Sir
Henry Maine to demonstrate, in this chair of Historical and Comparative
Jurisprudence, have revolutionised our legal history and largely tran_s-
formed our current tex-t-books. — Sir Frederick Pollock, Bart., The
History of Comparative Jurisprudence (Farewell Lecture at the Univer-
sity of Oxford, 1903).

No piece of History is true when set apart to itself, divorced and iso-
lated. It is part of an intricately pieced whole, and must needs be put
in its place in the netted scheme of events, to receive its true color and
estimation. We are all partners in a common undertaking, — the illumi-
nation of the thoughts and actions of men as associated in society, the
life of the human spirit in this familiar theatre of cooperative effort in
which we play, so changed from age to age, and yet so much the same
throughout the hurrying centuries. The day for synthesis has come. No
one of us can safely go forward without it. — Woodrow Wilson, The
Variety and Unity of History (Address at the World's Congress of Arts
and Science, St. Louis, 1904).

A lawyer without history or literature is a mechanic, a mere working
mason ; if he possesses some knowledge of these, ho may A-enture to call him-
self an architect. — Sir Walter Scott, "Guy Mannering," c. XXXVII.



CONTINENTAL LEGAL HISTORY SERIES

GENERAL INTRODUCTION TO THE SERIES

"All history," said the lamented master Maitland, in a memo-
rable epigram, "is but a seamless web; and he who endeavors to
tell but a piece of it must feel that his first sentence tears the
fabric."

This seamless web of our own legal history unites us inseparably
to the history of Western and Southern Europe. Our main interest
must naturally center on deciphering the pattern which lies
directly before us, — that of the Anglo-American law. But in
tracing the warp and woof of its structure we are brought inevi-
tably into a larger field of vision. The story of Western Continental
Law is made up, in the last analysis, of two great movements,
racial and intellectual. One is the Germanic migrations, planting
a solid growth of Germanic custom everywhere, from Danzig
to Sicily, from London to Vienna. The other is the posthumous
power of Roman law, forever resisting, struggling, and coalescing
with the other. A thousand detailed combinations, of varied
types, are developed, and a dozen distinct systems now survive
in independence. But the result is that no one of them can be
fully understood without surveying and tracing the whole.

Even insular England cannot escape from the web. For, in
the first place, all its racial threads — Saxons, Danes, Normans —
were but extensions of the same Germanic warp and woof that
was making the law in France, Germany, Scandinavia, Nether-
lands, Austria, Switzerland, Northern Italy, and Spain. And,
in the next place, its legal culture was never without some of the
same intellectual influence of Roman law which was so thoroughly
overspreading the Continental peoples. There is thus, on the
one hand, scarcely a doctrine or rule in our own system which can-
not be definitely and profitably traced back, in comparison, till
we come to the point of divergence, where we once shared it in
common with them. And, on the other hand, there is, during all
the intervening centuries, a more or less constant juristic socia-
bility (if it may be so called) between Anglo-American and Con-

ix



CONTINENTAL LEGAL HISTORY SERIES

tinental Law; and its reciprocal influences make the story one
and inseparable. In short, there is a tangled common ancestry,
racial or intellectual, for the law of all Western Europe and ourselves.

For the sake of legal science, this story should now become a
familiar one to all who are studious to know the history of our
own law. The time is ripe. During the last thirty years Euro-
pean scholars have placed the history of their law on the footing
of modern critical and pliilosophical research. And to-day, among
ourselves, we find a marked widening of view and a vigorous
interest in the comparison of other peoples' legal institutions.
To the satisfying of that interest in the present field, the only
obstacle is the lack of adequate materials in the English language.

That the spirit of the times encourages and demands the study
of Continental Legal History and all useful aids to it was pointed
out in a memorial presented at the annual meeting of the Asso-
ciation of American Law Schools in August, 1909:

"The recent spread of interest in Comparative Law in general is
notable. The Comparative Law Bureau of the American Bar Associa-
tion; the Pan-American Scientific Congress; the American Institute
of Criminal Law and Criminology; the Civic Federation Conference
on Uniform Legislation; the International Congress of History; the
lib.raries' accessions in foreign law, — the work of these and other
movements touches at various points the bodies of Continental law.
Such activities serve to remind us constantly that we have in English
no histories of Continental law. To pay any attention at all to Con-
tinental law means that its history must be more or less considered.
Each of these countries has its own legal system and its ovm legal
history. Yet the law of the Continent was never so foreign to Eng-
lish as the English law was foreign to Continental jurisprudence.
It is merely maintaining the l)est traditions of our own legal litera-
ture if we plead for a continued study of Continental legal history.

" We believe that a better acquaintance witli the results of modern
scholarship in that field will bring out new points of contact and
throw new liglit upon the de\elopment of our own law. IVIorcover,
the present-day movements for codification, and for the reconstruc-
tion of many departments of the law, make it highly desirable that
our profession should be well informed as to the history of the nine-
teenth century on the Continent in its great measures of law reform
and codification.

" For tliese reasons we believe that the thoughtful American lawyers
and students should have nt their disposal translations of some of
the best works in Continental legal history."

And the following resolution was then adopted unanimously by
the Association:



CONTESTENTAL LEGAL HLSTORY SERIES

" That a committee of five be appointed, on Translations of Conti-
nental Legal History, with authority to arrange for the translation
and pubUcation of suitable works."

The Editorial Committee, then appointed, spent two years in
studying the field, making selections, and arranging for trans-
lations. It resolved to treat the undertaking as a whole; and to
co-ordinate the series as to (1) periods, (2) countries, and (3)
topics, so as to give the most adequate survey within the space-
limits available.

(1) As to -periods, the Committee resolved to include modern
times, as well as early and mediaeval periods; for in usefulness
and importance they were not less imperative in their claim upon
our attention. Each volume, then, was not to be merely a valu-
able torso, lacking important epochs of development; but was
to exhibit the history from early to modern times.

(2) As to countries, the Committee fixed upon France, Ger-
many, and Italy as the central fields, leaving the history in other
countries to be touched so far as might be incidentally possible.
Spain would have been included as a fourth; but no suitable book
was in existence; the unanimous opinion of competent scholars
is that a suitable history of Spanish law has not yet been \vTitten.

(3) As to topics, the Committee accepted the usual Continental
divisions of Civil (or Private), Commercial, Criminal, Procedural,
and Public Law, and endeavored to include all five. But to repre-
sent these five fields under each principal country would not only
exceed the inevitable space-limits, but would also duplicate much
common ground. Hence, the grouping of the individual volumes
was arranged partly by topics and partly by countries, as follows:

Commercial Law, Criminal Law, Civil Procedure, and Criminal
Procedure, were allotted each a volume; in this volume the basis
was to be the general European history of early and mediaeval
times, with special reference to one chief country (France or
Germany) for the later periods, and with an excursus on another
chief country. Then the Civil (or Private) Law of France and
of Germany was given a volume each. To Italy was then given
a volume covering all five parts of the field. For Public Law (the
subject least related in history to our own), a volume was given
to France, where the common starting point with England, and
the later divergences, have unusual importance for the history
of our courts and legal methods. Finally, two volumes were
allotted to general surveys indispensable for viewing the connec-

xi



CONTINENTAL LEGAL HISTORY SERIES

tion of parts. Of these, an introductory volume deals vnt\i Sources,
Literature, and General Movements, — in short, the external
history of the law, as the Continentals call it (corresponding to
the aspects covered by Book I of Sir F. Pollock and Professor
F. W. ]\Iaitland's " History of the English Law before Edward I ") ;
and a final volume analyzes the specific features, in the evolution
of doctrine, common to all the modern systems.

Needless to say, a Series thus co-ordinated, and precisely suited
for our own needs, was not easy to construct out of materials
written by Continental scholars for Continental needs. The
Committee hopes that due allowance will be made for the diffi-
culties here encountered. But it is convinced that the ideal of
a co-ordinated Series, which should collate and fairly cover
the various fields as a connected whole, is a correct one; and the
endeavor to achieve it will sufficiently explain the choice of the
particular materials that have been used.

It remains to acknowledge the Committee's indebtedness to
all those who have made this Series possible.

To numerous scholarly advisers in many European! universities
the Committee is indebted for valuable suggestions towards
choice of the works to be translated. Fortified by this advice,
the Committee is confident that the authors of these volumes
represent the highest scholarship, the latest research, and the
widest repute, among European legal historians. And here the
Committee desires also to express its indebtedness to Elbert H.
Gary, Esq., of New York City, for his ample provision of
materials for legal science in the Gary Library of Continental
Law (in Northwestern L^niversity) . In the researches of prep-
aration for this Series, those materials were found indispensable.

To the authors the Committee is grateful for their willing
co-operation in allowing this use of their works. Without ex-
ception, their consent has been cheerfully accorded in the
interest of legal science.

To the publishers the Committee ex-presses its appreciation
for the cordial interest shown in a class of literature so impor-
tant to the higher interests of the profession.

To the translators, the Committee acknowledges a particular
gratitude. The accomplishments, legal and linguistic, needed for
a task of this sort are indeed exacting; and suitable translators
are here no less needful and no more numerous than suitable
authors. The Committee, on behalf of our profession, acknowl-

xii



CONTINENTAL LEGAL HISTORY SERIES

edges to them a special debt for their cordial services on behalf
of legal science, and commends them to the readers of these vol-
umes with the reminder that without their labors this Series
would have been a fruitless dream.

So the Committee, satisfied with the privilege of having intro-
duced these authors and their translators to the public, retires
from the scene, bespeaking for the Series the interest of lawyers
and historians alike.

The Editorial Coadiittee.






A HISTORY OF
GERMANIC PRIVATE LAW



CONTENTS



PAGE

Editorial Committee and List of Translators v

General Introduction to the Continental Legal History

Series ix

Editorial Preface by Ernest G. Lorenzen ........ xxv

Introduction by Paul Vinogradoff , . . . xxvii

Introduction by William E. Walz xliii

Translator's Note li

List of Important Works Cited liii

Abbreviations Used in the Footnotes Ivii

INTRODUCTION

CHAPTER I

GENERAL TRAITS OF GERMANIC PRIVATE LAW



§ 1. German Private Law be-
fore the Reception . . 1
§ 2. The Reception .... 16



§ 3. German Private Law after

the Reception .... 22

§ 4. German Private Law as

an Independent Science 32



BOOK I. THE LAW OF PERSONS



CHAPTER II



§ 5. Man as a Holder of Rights
§ 6. The Beginning of Capacity

for Rights 42

§ 7. Determination of Capacity

for Rights 46

§8. Age 54



NATURAL PERSONS
41



§ 9.
§10.
§11-

§13.
§14.



Sex

Health

Legal Status of Aliens

Religion

Status



61

69
73

79

87



Honor 10:



XVll



CONTENTS



CHAPTER III

JURISTIC PERSONS AND GROUPS INCAPABLE
OF HOLDING RIGHTS

§ 15. Associational Organization in Germanic Law, generally . . .
Topic 1. Specific Types of Communities in Germanic Law



PAGO

110



§ 16. The Sib 114

§ 17. The Mark-associations . 116
§ 18. Neighborhood Associa-
tions of more Restricted

Purposes 12.5

§ 19. The Craft Gilds ... 128



§ 20. Other Associations with-
out the Bond of Vici-
nage 135

§ 21. The Communities of

"Collective Hand" . 139



Topic 2. Practical and Theoretical Results of German
Legal Development

§ 22. General Principles of the
German Law of Asso-
ciations 146

§ 23. Reception of the Alien



Law, and the Renas-
cence of the Germanic
Law in Theory and
Practice 151



BOOK II. THE LAW OF THINGS

CHAPTER IV

THINGS



§ 24. The Concept of Things ;

Rights in Things . . 160
§ 25. Immovable and Movable

Things 164



§ 20. Things of Limited Traf-

ficability 169

§ 27. Individual and Compos-
ite Things 171



CHAPTER V
THE LAW OF LAND

part I. POSSESSION



§ 28. The Medieval Seisin of

Land 183

§ 29. Influence of the Alien



Law of Possession . .
§ .30. The Land-Registry Sys-
tem



204
218



CHAPTER VI

THE LAW OF LAND (Cojitinued)

part II. the owNEiisiiiP of land

§ 31. The Concept of Owner- I § .32. Divided Ownership . . 232

ship 227 ' § 33. Coniinunity Ownership . 234

xviii



CONTENTS



§ 34. The Acquisition of Own-
ership by Contract . . 241

§ 35. Acquisition of Owner-
sliijj otherwise than
by Contract .... 253

§ 36. General Restrictions

upon Ownership . . 259

§ 37. Restrictions Imposed by

Rights of Vicinage . 262

§ 38. Restrictions originating

in Regalities, generally 268

§ 39. Restrictions originating
in the Regalities of the
Forest Law and the
Hunting Law . . . 271

§ 40. Restrictions originating
in Regalities of the Law



PAGE

of Waters, Fishery, and
Dikes 279

§ 41. Restrictions originating
in the Law of Mines
and Salterns . . .290

§ 42. Restrictions upon Alien-
ation due to Co-rights
of Relatives. (I)

Rights in Expectancy
and of Co-alienation . 304

§43. Same. (II) Entailed
Family-Estates of the
Greater Nobility . . 308

§44. Same. (Ill) Family

Trust-entails .... 310



CHAPTER VII
THE LAW OF LAND (Continued)

PART III. REAL RIGHTS



Topic 1. Tenurial Rights



§ 45. Peasant Tenures . . . 319
§ 46. Urban Leaseholds . . . 332
§ 47. The Fief ; the Feudal



Law of Medieval Ger-
many 334

§ 48. The Modern Feudal Law 341



Topic 2. Servitudes
§ 49. Servitudes, in General . 349 | § 50. Particular Servitudes . 353

Topic 3. Charges on Land

§ 51. Real Charges, in general 356 | § .52. Particular Land Charges 368



Topic 4. The Gage of Land



§ 53. The Older Germanic Law

of Land Pledges . . 374



§ 54. The Modern Law of

Land Pledges . . . 385



Topic 5. Preemption Rights

§ 55. Preemption Rights, in I § 56. Individual Preemption

general 395 | Rights 399

xix



§ 57. Possession of Chattels,

in aeueral 40i



CONTENTS

CHAPTER yill

THE LAW OF CHATTELS

Topic 1. Possession of Chattels

PAGE PAQB



§ 58. Chattel Actions, particu-
larly the Rule, " Hand
must Warrant Hand " 407



Topic 2. Ownership of Chattels

§ 59. The Origin and Content of Ownership in Chattels 425

Topic 3. Acquisition of Title to Chattels



§ GO. Occupancy 426

§ 61. Accession of Fixtures,

and Specification . . 433



§ 62. Appropriation of Fruits 434
§ 63. Alienation of Chattels . 436
§ 64. Positive Prescription . • 439



Topic 4. The Law of Chattel Pledges



§ 65. The Older Law of Pledge 440
§ 66. The Modern Develop-



ment of the Law of
Chattel Pledges ... 447



BOOK III. THE LAW OF OBLIGATIONS
CHAPTER IX

GENERAL PRINCIPLES

§ 67. Introductory Sketch of the General Development of the Law of

Obligations 459

Topic 1. Fundamental Conceptions of the Law of
Obligations



§ 68. Legal Duty and Liabil-
ity Generally .... 463
§ 69. Varieties of Liability . 473



§ 70. Legal Duty and Liability

in the Modern Law . 485



Topic 2. The Histohical Origins of Oijligations



§ 7L Obligational Contracts:
Forms of Obligational
and Liability Transac-
tions 490



§ 72. The Conclusion of a Con-
tract in Modern Law . 508
§ 73. Unilateral Promises • . 513



Topic 3. The Content of Obligations

§ 74. Nude Obligational Prom- I § 75. Contracts for the Benefit

iaea 515 | of Third Persons . . 618

XX



CONTENTS

Topic 4. Performance and Non-Performance of
Obligations

PAGE PAGE

§ 76, Contractual Penalties I § 77. Fault and Accident in

and Damages . . . 521 | the Law of Contract . 527

Topic 5. Assignment of Obligations by Obligee and
Obligor

§ 78. Assignment of Claims I § 79. Assignment of Obliga-

by Obligee .... 533 | tions by Obligor . . 536

Topic 6. Cases of Several Debtors and Creditors

§ 80. Plurality of Creditors . 537 | § 81. Plurality of Debtors . . 540



CHAPTER X

SPECIAL FORMS OF OBLIGATIONS

Topic 1. Obligations Ex Contractu



§82. Obligations ex contractu,

generally 544

§ 83. Contracts of Sale ... 540

§ 84. Hire and Lease .... 552
§ 85. Contracts for Labor and

for Services .... 554



§ 86. Loans at Interest . . . 559
§ 87. Wagering and Gam-
bling 563

§ 88. Claims based upon Com-
mercial Paper . . . 565



Topic 2. Obligations based upon Torts
§ 89. Obligations based upon Torts 576



BOOK IV. FAMILY LAW



CHAPTER XI



MARRIAGE



§ 90. Introductory : the Begin-



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