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 well-known 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.

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Appendix

Gladys Escola, Respondent, V. Coca Cola Bottling Company of Fresno (A Corporation), Appellant

Supreme Court of California24 Cal. 2d 453; 150 P.2d 436; 1944 Cal. LEXIS 248

July 5, 1944

CHIEF JUSTICE GIBSON 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.

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 the "fracture line" where the bottle broke in two.

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.

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. Anheuser-Busch, 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. Coca-Cola 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.

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.)

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.

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.

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 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

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.

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 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. 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.

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 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 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 quasi-tort, 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.)

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 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 BGBIntroductory 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 show-jumper (‘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 self-determination 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 non-pecuniary 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 non-monetary 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*

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 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,

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 non-monetary interests is recoverable. But, using a method which might be described as enumeration by 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.

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. ...