The history of private law in Germany in the first half of the 19th century is well known for exhibiting a fascinating scientific awakening. Although there was little legislation, especially not many codifications, the scholars of the historic school of law (Historische Rechtsschule) with their thinking back to the tradition of the records laid the foundations for the modern system and dogmatics of legal doctrine that remain until today. In a way not imaginable today, the scientific doctrine formed the contemporary private law. But this well-known role of the literature as one of the main law-producing elements hides too easily the view of a second very important contribution to the modernisation of law: the jurisdiction of the courts. The following comments will show that the jurisdiction of the courts also played a large role in unifying the law and thus in the creation of supra-regional law. Therefore, this essay will focus on the activities of the most well-known German court of the first half of the 19th century.
The Oberappellationsgericht (High Court of Appeal) of the four free cities that operated in Lübeck between 1820 and 1879 was the most esteemed court of its time. Founded because of German constitutional law in 1815 1 , it was the third level of jurisdiction for mainly civil-law cases 2 from Hamburg, Frankfurt, Bremen, and Lübeck. But in 1869, 60% of the cases had to do with commercial law. 3 The members of the court were often well-known German legal scholars; in particular, the court presidents Georg Arnold Heise, Carl Georg von Wächter, and Johann Friedrich Kierulff were prominent jurists. 4 As judged by Bernhard Windscheid, the seat of the president of the court was as important as Savigny's professorship in Berlin. 5 Rudolf von Jhering's nice bon mot of Germany's educated court confirms this positive picture. 6 The heyday of the court lasted until 1870 but came to an end with the foundation of the Bundesoberhandelsgericht in Leipzig. After having lost Frankfurt from its district in 1866, the court slowly but surely lost its jurisdiction and with the implementation of the reformatory laws (Reichsjustizgesetze) in 1879 it was dissolved and incorporated into the still existing Hanseatic Oberlandesgericht in Hamburg.
Suits under commercial law are of special interest for modern scholars for many reasons. Commercial law as a whole is known to have been one of the factors in the legal modernisation of the 19th century. 7 Here there were possibilities of making law and solving problems independent from the stiff framework of Roman law. Therefore, many legal scholars, the so-called Germanists, found interest in commercial law. One speciality of maritime commercial law, with which the court had to deal much of the time, was that there was always a relationship with foreign law. The point of origin and the destination of a ship were in two different states. Hence questions arose about the areal and personal ambit of territorial rules of law. This was also a possible catalyst for unification of law, meaning the development of supra-regional legal provisions of commercial law beyond the ambit of rules of special law.
In the following discussion, the legal practice of the Oberappellationsgericht will be illustrated by examining two case studies more closely.
The first of these cases was decided on 22 December 1831. As was the situation so often, it was about the loss of a shipload of cargo through rough weather conditions in winter. 8 In older times, it was generally not permitted to pass through the Baltic Sea between 11 November and 22 February. 9 Passage by sea in the 19th century in December and January was no longer problematic legally, but it was still dangerous. In December 1828, skipper Peter Larsen of Lübeck signed a contract with Dietrich Gottlieb Witte to deliver some fruit from Lübeck to Tallinn. 10 The ship departed on New Year's Eve from Travemünde for Estonia but returned on 15 January 1829 because the bad weather rendered it impossible to open the portholes. The crew feared that the fruit could go bad because of smoke and dust, and so they came back. The skipper asked his partner in the contract what he should do to keep the fruit fresh, but the latter just answered that he was only the forwarding agent and the bills of lading had already been transferred to Tallinn, so the skipper would have to decide what was best for keeping the fruit fresh. 11 When the skies grew lighter, the skipper opened the portholes and saw that the load had become wet and also that some boxes were so hot that one could not touch them with the bare hands. The steersman and the sailors made a formal statement about this, and the skipper demanded damages from his contract partner, Witte, to pay for his efforts to preserve the fruit.
In a seemingly harsh decision, the Oberappellationsgericht dismissed the claim completely but did refer the case back to the lower court to clarify further questions. 12 In its reasons for the judgement, the court, as in other cases, managed to direct all disputes back to questions under the general law of obligations. Thus the solution in this special case gained judicial transparency and generalisability at the same time. As a possible basis for claim, or 'action' in the terminology of Roman law, the court considered agency of necessity (negotiorum gestio) and the freight contract. Remarkably, the agency as a quasi-contract stood at the beginning and was therefore supposedly superior to the contract. 13 In a very brief decision, the court rejected reimbursement of expenses for two reasons. Firstly, the plaintiff's contracting partner had been in Lübeck. He had had the possibility to come to Travemünde at any time and look after the fruit on his own - which he did not do. Secondly, Witte had said that the bills of lading had already been sent to Tallinn. Hence the Oberappellationsgericht concluded that Witte as principal obviously had no interest in saving the fruit. At this point in the reasons for the judgement comes a sentence as might be seen in a textbook: "Now no right can be gained from an agency against someone who himself has declared that he has no interest in the thing, that he does not want anything to do with it and thus abandons the thing." 14 Dogmatically it stands out that the court did not differentiate between the question of whether the defendant actually was the agent - and thus whether the preservation of the southern fruit was agency by Witte - and the connected question of whether this was part of his intention. Both issues could be subsumed under the interest of the agency.
Only after rejecting the claim for reimbursement of expenses from negotiorum gestio did the court deal with the matter of contractual claim for payment. This again shows the willingness to find generalisable solutions that break out of limitations of the special law. In general, the court acknowledged the duty of the skipper to take the best possible care of the shipload in cases of emergency at sea and in the emergency harbour. This resulted from an analogy to a statute from Lübeck about the cooling of grain and the recovery of shiploads in the event of a shipwreck. 15 The intention to overcome the narrowness of the special law can be seen particularly well in the fact that, although the outcome was already clear, the reasoning for the judgement adds that the same also follows from the nature of a freight contract as a kind of lease contract (locatio conductio) in which the recipient has to apply the same amount of care to preserve the goods as a diligent head of household (paterfamilias). 16 The reference to the 'nature of the thing' as comes up in the judgement was a topos often used by Georg Arnold Heise even before his time as president of the Oberappellationsgericht of Lübeck. 17 He often used it as an argument in his later-to-be-printed lectures on commercial law 18 , which shows his apparent closeness to Savigny's doctrine of sources of law. 19 With arguments such as these, the court left all the specialities of special law and maritime law behind and thus shifted the solution over to law of obligations only, here the discussion about rights and duties within the lease contract - the still unified type of contract known as locatio conductio. 20 Considering Roman law, the court stated that this kind of contract would normally grant reimbursement of expenses 21 but in this case the plaintiff had sued the wrong person.
After that, the Oberappellationsgericht examined whether the skipper could at least claim the agreed cartage or parts of it from the defendant if a coincidence concerning the skipper had kept him from finishing the promised tour. During this examination, the court prioritised a solution from Roman law, putting the relevant sources of special law second. Following the rules of Roman law, the court assumed that the contract had been annulled without the skipper being able to raise any claims against the defendant 22 , for the skipper had returned to his original port unsuccessfully. The return had been due to coincidence - namely, the bad weather conditions - and not on account of the fruit having gone bad. Had the skipper brought the spoilt fruit to Tallinn or had he berthed at a harbour on his route to Estonia, the situation might have been different. Now, however, the carrier could only be expected to adhere to the contract if the long stay in Travemünde for the necessary repairs was not to the disadvantage of the charterer. The court based this decision on Roman law 23 as well as on several rules of maritime law from the...