7
often more concerned with the results of actual cases than with the conceptual
integrity of their systems. The German Civil Code‟s delictual rule on vicarious
liability (§ 831 BGB), for example, was drafted in such
an inappropriately narrow
way
35
that the
Reichsgericht
, the Supreme Court of the German Empire,
consciously had recourse to contract law in order to circumvent the constraints of
the law of delict.
36
This recourse to contract law must therefore be regarded as a
special path (
Sonderweg
) accidentally taken by German law. It should find no place
in a more principled, doctrinally clear reconstruction
of European private law
today.
37
Thus, the distinction between contractual and non-contractual obligations, even if
not very sharp from the comparative lawyer‟s empirical point of view, proves to be
helpful, and even indispensable, for an adequate
doctrinal reconstruction of
European private law. At the same time, this example shows that principles of
European private law cannot be found by descriptive comparison alone as a kind of
doctrinal „common core‟. Such principles must be based on legal argument and they
cannot always be in full accordance with the doctrinal peculiarities of all European
systems. Indeed, in the treatises on European private law, the proper place for such
peculiarities, or „local variations on a European theme‟, is in the footnotes.
38
However, other problems of classification may be more difficult to resolve.
One of them concerns the question of liability for pre-contractual misbehaviour and
wrongful statements, already mentioned above. Here it appears that both contractual
and non-contractual principles apply. Thus, although classifying such a claim under
negligence, the common law requires the defendant to have „assumed
responsibility‟ in quasi-contractual terms.
39
Another similarly difficult question
concerns the place in the legal system of claims based on unjustified enrichment.
Many
of the Roman
condictiones
, the major Roman source of the modern civilian
law of unjustified enrichment,
40
would be classified – from a modern European
perspective – as contractual obligations;
41
and indeed
much of the modern law of
35
Specifically, liability is made dependent on some fault on the principal‟s side: „A person who uses
another person to perform a task is liable to make compensation for the damage that the other
unlawfully inflicts on a third party when carrying out the task. Liability in damages does not apply if
the principal exercises reasonable care when selecting the person deployed and, to the extent that he
is to procure devices or equipment or to manage the business activity, in the procurement or
management, or if the damage would have occurred even if this care had been exercised‟ (§ 831 (1)
BGB). Such fault
is not easily found, especially where large companies are concerned.
36
RGZ 78, 239 ff (7 December 1911 –
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