Reichsoberhandelsgericht

With the disintegration of the Holy Roman Empire in 1806, the judicial activities of the two imperial German supreme courts – the Reichskammergericht (Imperial Chamber Court) in Wetzlar and the Reichshofrat (Aulic Council) in Vienna – ended. For more than six decades no federal supreme court existed in the German territories until the Reichsoberhandelsgericht was formed in 1869.[1] During the time of the German Confederation (1815–1866) and the North German Federation (1867–1871) the only court with local jurisdiction for more than one territory was the Oberappellationsgericht der vier Freien Städte (High Court of Appeal of the Four Free Cities) in Lübeck (1820–1879), which had territorial jurisdiction for Bremen, Frankfurt, Hamburg and Lübeck.[1]

The German Confederation did not establish a federal supreme court, because the Confederation left the sovereignty of the individual territories and states largely untouched.[2] But due to the lack of a federal supreme court, some concern existed in the confederation about the fragmentation of the law. These concerns intensified after a uniform German commercial law, the Allgemeines Deutsches Handelsgesetzbuch (General German Commercial Code), was introduced in the Confederation in 1861 without a federal supreme court being able to ensure its uniform application and interpretation.[1] The German Jurists Forum (Deutscher Juristentag), a deliberative congress of German lawyers, therefore called in 1860, 1861, 1863, 1864 and 1867 for the establishment of such a court.[1] In 1860, the German Jurist Forum argued, that at least for the unified areas of law – meaning commercial law and the law on promissory notes – a federal supreme court would be a necessity to ensure a consistent development of the law.[3]

Two years after the North German Confederation had been formed, the formal legislative process for the establishment of the Bundesoberhandelsgericht was started. On 23 February 1869, Richard von Friesen, the delegate of the Kingdom of Saxony, introduced its bill titled Entwurf eines Gesetzes, betreffend die Errichtung eines obersten Gerichtshofes in Handelssachen (Draft of a law concerning the establishment of a supreme court in commercial matters) in the Bundesrat.[4][5] The bill proposed the establishment of a Federal High Commercial Court (the Bundesoberhandelsgericht), which should be seated in Leipzig, a Saxon city. The court should be headed by a president and the other members of the court should be a vice-president and a number of ordinary judges.[6] All judges should be appointed on the recommendation of the Bundesrat by its president, the King of Prussia.[6] The bill further set out that the court should have subject-matter jurisdiction for the Allgemeines Deutsches Handelsgesetzbuch and the law on promissory notes.[6] The content of the bill had probably been coordinated beforehand with Prussia.[1]

The bill was referred to the judicial committee of the Bundesrat, the Ausschuss für Justizwesen, on 1 March 1869.[5] The judicial committee examined it on 17 and 18 March 1869 and submitted its report to the plenum of the Bundesrat a few days later.[7] The judicial committee's report proposed only minor revisions.[7] On 5 April 1869, the plenum of the Bundesrat dealt with the bill. During the plenary session, Hesse, Mecklenburg and Hamburg argued that the establishment of the Bundesoberhandelsgericht was beyond the competencies of the North German Confederation and would require an amendment of the federal constitution.[8] Hamburg, together with Lübeck, especially feared that the proposed federal court would result in a loss of influence for its Oberappellationsgericht der vier Freien Städte. But these sceptic voices did not prevail, and the bill passed the Bundesrat with only seven votes against it.[9]

On 5 April 1869, the bill was sent to the Reichstag.[10] In the Reichstag, the bill was debated between 10 April and 13 May 1869. During the parliamentary deliberations Johannes von Miquel notably argued – with a possible German unification in mind – that "from a legal point of view, this Court is provisional, but from a national point of view, it is definitive".[1] The deliberations once more resulted in minor revisions only and the bill was approved by the Reichstag on 13 March 1869.[10] According to the legislative process of the North German Confederation, the bill was then sent back to the Bundesrat again, which finally approved it against the opposition of both Mecklenburgs, Bremen and Hamburg.[11]

William I gave his royal assent to the bill on 12 June 1869 and on 18 June 1869 the Gesetz, betreffend die Errichtung eines obersten Gerichtshofes für Handelssachen was published in the official gazette of the North German Confederation, the Bundesgesetzblatt des Norddeutschen Bundes.[11]

A view of the Georgenhalle in an 1879 issue of the Die Gartenlaube

After the law establishing the Bundesoberhandelsgericht was promulgated, an ordinance dated 22 June 1870 decreed its entry into force on 5 August 1870.[12][13] On that day, the court constituted itself in Leipzig.[13] Contrary to original plans, Otto von Bismarck – then the Chancellor of the North German Confederation – was unable to attend the court's investiture in the Georgenhalle, the seat of the court in Leipzig,[14][15] due to the outbreak of the Franco-Prussian War.[14] During the ceremonies, the court' president, Heinrich Eduard von Pape, swore in the court's first judges and remarked on the importance of the establishment of the court for future German national and legal unity.[12]

After the formation of the German Empire in 1871, the Bundesoberhandelsgericht was no longer a court of the North German Confederation but of the recently founded empire. It was accordingly renamed to Reichsoberhandelsgericht on 2 September 1871 by a plenary declaration of its members.[16][17] The renaming reflected the new responsibilities for the whole of the empire including Bavaria, Württemberg, Baden and Hesse.[18]

In 1871, the court attained minor additions to its subject-matter competence. It was now also responsible for the law of the Flösserei (timber rafting), some copyright law and tort liability concerning the operation of railways.[19] After the defeat of France in the Franco-Prussian War, Alsace–Lorraine became part of the German Empire. This territorial gain started the process of expanding the court's subject-matter jurisdiction beyond the confines of commercial law.[20] Shortly after the war, a law dated 14 June 1871 was passed which established the court as the supreme court for Alsace–Lorraine effective 28 August 1871.[21] The court thereby took the place of the French Court of Cassation in Paris for all cases stemming from this territory.[14][21][22] This was of major importance because the court was now competent to hear criminal cases from this territory and was thus in a position to rule on the new German Criminal Code of 1871.[23]

In 1873, the court was asked to adjudicate an interstate dispute between Saxe-Meiningen and Schwarzburg-Rudolstadt, two states of the German Empire. It should function as a court of arbitration for a dispute about the dominion over the village Unterwirbach. After Bismarck's approval, the court agreed to take the case and rendered an arbitral award in 1876.[24]

Between 1873 and 1876, the subject-matter jurisdiction of the court expanded again. The court then, inter alia, gained jurisdiction for the adjudication of trademark and banking law.[25] After the passage of the German patent act, discussions concerning the addition of patent law to the court's jurisdiction started in 1877 and the court was asked to compile regulations to handle this new material. After these were finished, the court attained appellate authority for patent law on 1 May 1878 by the passage of an ordnance from the same day.[26]

The Gerichtsverfassungsgesetz, part of the Reichsjustizgesetze of 1871, in the Reichsgesetzblatt

Before the Reichsjustizgesetze of 1878 entered into force on 1 October 1879, the Reichsoberhandelsgericht had to conclude its position as a German supreme court on 30 September 1879.[27] On 1 October 1879, the Reichsoberhandelsgericht was succeeded by the Reichsgericht.[28][16]

The case law of the Reichsoberhandelsgericht had a lasting influence on the practice and teaching of German promissory notes law and commercial law in general. As a judge of the court, Levin Goldschmidt argued that it was the natural task of the court to preserve unity in the application of the law and to further the development of the unified areas of law.[29] Due to the expansion of its subject-matter jurisdiction, many contemporaries saw the court not as a special court for commercial law but as a general German supreme court,[29] a view that is shared by commentators today.[14] Andreas M. Fleckner, a legal scholar, argued that the court proved to be the hoped-for keystone for the unification of German commercial law and that its establishment was an unexpectedly large step for the unification of German civil law in general.[1] Fellow legal scholar Regina Ogorek observed that the court marked the institutional beginning of the end of an epoch of fragmentation in the law.[30]

The establishment of the court commenced an institutional tradition that has continued through the Reichsgericht to today's Bundesgerichtshof.[14] Exemplary for this tradition is the collection of its important cases named Entscheidungen des Reichsoberhandelsgerichts (Judgments of the Imperial High Commercial Court), abbreviated ROHGE or BOHGE, in whose tradition the later Entscheidungen des Reichsgerichts (Judgments of the Imperial Court), abbreviated RGZ/RGSt, and the Entscheidungen des Bundesgerichtshofs (Judgments of the Federal Court of Justice), abbreviated BGHZ/BGHSt, still stand today.[14]

Originally, the Reichsoberhandelsgericht had no panels, the decisions therefore had to be taken in plenary sessions. This was rectified with effect from 1 September 1871 when the court formed two panels.[31][21] The first panel (Erster Senat) was chaired by the court's president, Heinrich Eduard von Pape, while the second panel (Zweiter Senat) was led by its vice president August Drechsler.[31] On 9 July 1874, a third panel (Dritter Senat) was formed and chaired by Karl Hocheder, who became a further vice president.[32] The president distributed the cases to the individual panels.[33] To render a decision seven judges had to participate in a case and a majority for the decision had to be found.[34]

Any qualified lawyer or advocate – a unified bar was not created in the German Empire until 1879 – could plead before the Reichsoberhandelsgericht. No singular admission (Singularzulassung) existed.[35][36]

In 1870, the local jurisdiction of the court extended throughout the North German Confederation.[38][1][39] When the North German Confederation was succeeded by the German Empire in 1871, the local jurisdiction of the court was now the Empire's territory.[1][40] The last extension of the court's local jurisdiction happened on 14 June 1871, when the Reichsoberhandelsgericht succeeded the French Court of Cassation for all appeals concerning cases originating from Alsace–Lorraine.[41]

As the name of the court suggests it was originally conceived as a civil court for commercial law matters. Accordingly, its subject-matter jurisdiction only extended to cases concerning commercial law. Section 13[42] of the court's establishment statue elaborated what specific commercial law questions were covered.[43] Later the court's subject-matter jurisdiction was rapidly expanded by statute. For example, matters concerning copyright law, patent law and trademark law were added to the court's docket.[1] But not only newly developing matters like intellectual property law were added, even some specific matters of general civil law – for example matters concerning strict liability for operators of trains – were added to the court's subject-matter jurisdiction.[44] For Alsace–Lorraine, the court even gained jurisdiction in criminal matters, but private law still remained firmly at the centre of the court's jurisdiction.[45]

• Fischer, Detlev (2010). "Zur Geschichte der höchstrichterlichen Rechtsprechung in Deutschland". JuristenZeitung (in German). 65 (22): 1077–1087. doi:10.1628/002268810793455442. ISSN 0022-6882. JSTOR 20830325.
• ——————— (2015). "Zwischen Leipzig und Karlsruhe, rechtshistorische Reminiszenzen und Wechselwirkungen". Journal der Juristischen Zeitgeschichte (in German). 9 (3): 93–106. doi:10.1515/jjzg-2015-0029. ISSN 1868-8810. S2CID 185474516.
• Fleckner, Andreas M. (2012). "Reichsoberhandelsgericht (with Reichsgericht)". Max Planck Encyclopedia of European Private Law. Max Planck Institute for Comparative and International Private Law. Archived from the original on 26 May 2023. Retrieved 26 May 2023.
• Grieß, Martin (2015). "Im Namen des Rechts" (in German). Tübingen: Mohr Siebeck. doi:10.1628/978-3-16-160422-5. ISBN 9783161539800. S2CID 244000119.
• Lobe, Adolf (1929). Fünfzig Jahre Reichsgericht am 1. Oktober 1929 (in German). Berlin and Leipzig: De Gruyter. doi:10.1515/9783111648354. ISBN 9783111648354.
• Müßig, Ulrike (2012). "Handelsrechtseinheit durch Höchstgerichtsbarkeit: Die Entstehung des Bundes- bzw. Reichsoberhandelsgerichts". In Cordes, Albrecht; Dauchy, Serge (eds.). Eine Grenze in Bewegung / Une frontière mouvante (in German). De Gruyter. pp. 265–292. doi:10.1515/9783110446722-015. ISBN 9783486717990.
• Reynolds, Kenneth W (1997). "The Federal Superior Commercial Court, 1867–1878". "A Wish in Fulfilment": The Establishment of the German Reichsgericht, 1806-1879 (PDF) (PhD thesis). McGill University. pp. 128–164.
• Stegemann, A., ed. (1873). Die Rechtsprechung des deutschen Oberhandelsgerichtes zu Leipzig (in German). Vol. VIII. Berlin: Verlag von J. Guttentag. p. 399. hdl:2027/mdp.35112104744794.
• Winkler, Sabine (2001). Das Bundes- und spätere Reichsoberhandelsgericht: Eine Untersuchung seiner äusseren und inneren Organisation sowie seiner Rechtsprechungstätigkeit unter besonderer Berücksichtigung der kaufmännischen Mängelrüge (in German). Paderborn: Schöningh. ISBN 978-3-506-73395-5.