BIBLIOGRAPHY

Note: page references in italics refer to case studies

A

Abandonment 737 Abortion 731 Academic writings

on law 1, 5

declaration of will 249, 265–271 self-defence 325

Act of State

(as defence) 629, 659–671 Action, freedom of 207 AGBG (General

Conditions of

Business Act) 333, 371 on offer/acceptance 341–349

Agriculture/forestry 213 Air traffic controllers

strike case 51, 373, 435, 579–605 facts of case 579–581

legality of strike 583–591 determination of

responsibility 591–605 Alcohol (and responsibility) 559 Alienation 313

All Germany

election case 53–81

Barrier Clause 57–63, 75–81 combination of

party lists 67–73 special circumstances of election 63–67

Allergy to hair tonic case 399–411 facts of case 401

judgment and reasons 403–411 Amsterdam, Treaty of 133 Animals,

owners’ liabilities 575 rights of 129–139

Appeals, types of 2 Army, Federal

See also Military service collective insult to 715–729 international role 19–39

Arrest,

grounds for 111–113, 121–127 rights/duties relating to 99

Arrested admiral case 109, 111–127 background 111–113

facts of case 113–115 judgment and

reasons 115–127 Assembly,

freedom of 183, 491, 497 Assistance

(in criminal acts) 701 Association,

freedom of 183–185, 221 Asylum, rights of 223–225 Attempted acts

(criminal) 699–701, 703 withdrawal from 701, 703

Auctions 363

See also Internet auction case Avoidance 259, 261–279, 315–317 declarations of 247, 257–259

grounds for 281, 283–295, 355–357 time constraints 279, 295

B

Bailiffs, role/duties of 311 Balancing,

Basic Law 7, 19

Basic Rights 7, 105, 527, 531, 541 proportionality

principle 109 Barrier (5%) clause 53, 55–81

lowering of requirements (proposed) 55, 75–77 regionalisation of 55–57, 77–81

Base motive case 733–735

Basic Law (Grundgesetz) 1, 9–103 See also Basic Rights animal rights 129, 135–137 balancing 7, 19

business law 193, 201–211, 221–223

criminal law 97–99, 663–669 and EU law 13–15

Federal institutions 53, 89–97 Federal

organisation 9–11, 83, 99 general laws 519–527 history 7, 9, 15

international

relations 17, 41, 49 interpretation 7, 481 judicial process 87–99 legal status 4, 101 legislation 53, 83–87 modifications 81, 83–85 officials/authorities 51–53 publication 101

sexual equality 145–149, 149 social/economic

order 193, 209

States 43–49, 43–53, 83, 89–91 termination 103

as transitional 101 Unity of (as legal

principle) 7

vs international law 19–39 Basic Rights (Grundrechte) 105–227

See also Expression (of opinion), freedom of

balancing 105, 527, 531, 541 and civil law 106–107, 515–527

conflicts between 105, 481–501, 541 constitutional

freedoms 106, 157, 173, 183–187 constitutional status 105 definition 105

equality before the law 141 and EU law 13

extent of application 106–108, 505, 515–519

forfeiture 227

human dignity 107, 129, 475 interpretation 481, 505 limitations 107–108, 227, 317 military service

(refusal of) 157, 187 misuse 227

of personality 139, 233, 469–481

political 223–225 primary purpose 515 property 189–191

pursuit of business 487–501, 597– 601

and State law 43

statutory reservation 107–108 violations of 91, 106–107, 469–481,

505

Berlin Wall, shootings at

See Shootings at the Berlin Wall case

Bodily injury,

offences causing 739–741, 741–747, 747–749

consent to 749 Bosnia flight exclusion zone case 19–39

facts of case 19–21 role of FCC 29–31

role of NATO 25–29, 33–39 role of UN 21–23

Boycott (and

good morals) 505–511, 529–559

Brawls 749 Buildings, collapse/

maintenance of 577

Burden of proof 399–411, 435, 439,

457–467 Bürgerliches Gesetzbuch

(BGB)

See Civil Code (BGB) Bye-laws 4, 107

C

Cannabis application rejection case 159–173

Cases, selection of 1

Cattle slaughter case 15, 129–139 facts of case 131

judgment and reasons 133–139

Chemist’s case 185 Children

See Minors; Parental duties/rights Citizenship, German 223

Civil Code (BGB) 1, 7

See also AGBG

contract law 331–333, 359–367 declarations

of will 243, 259, 279–281, 295– 301, 311–313, 311–315

history 229

legal competence 235–239 legal transactions 313–317 mistake 259

obligations 369–377, 397–399, 411–431

persons, definitions/ rights of 229–233

special defences 319–321 tort 435–437, 503, 559–563, 573–579, 609–615

Coercion,

as defence 545–553 Federal (of States) 53

Communist Party of Germany 11

Company law

and Basic Rights 106 definitions 2

Compensation 281, 373–375 See also Liability

by annuity 609–611 breakdown of

negotiations 393–395 contractual liability 363–365 contributory fault 375, 501 for criminal acts 707 expenditure 411, 613

for fatalities 611 on grounds of

fairness 561

for harm to livestock 439–467 joint liability 609

in lieu of

performance 397–399, 411 limitation 379

nationalisation 223 for personal

injury 321–329, 377–391, 565–573, 605–609, 609–611

time limits 615 transfer of claims 375 and withdrawal 427

Competence, legal

(Rechtsfähigkeit) 229, 235–239 and declarations

of will 311 disqualifications

from 235 limited 235, 311 of minors 235

Computer

non-disclosure case 283–295 judgment and

reasons 287–295 Consent (to legal,

transactions) 367 Constitution

See Basic Law; Weimar Constitution

Constitutional complaints 91 admissibility 199–201 grounds for 527 industrial finance 197–223 lodgement of 193 wrongful arrest 111–127

Consumers, compensation 449–467 definition 233

rights/obligations 369, 413 Contracts 331–431

See also Avoidance; Deception, fraudulent; Mistake; Obligations

acceptance 331, 359–361 agreement 361 alteration 371

basis,

disturbance of 421 conditions 363–365, 415–419 consent 367

content 415–425

culpa in contrahendo 383–385 definition 239 interpretation 313, 363, 417 long term 421

and minors 235–237 mutual 425–429 negotiations

(pre-contractual) 393–395 offer 331–333, 333–357, 359 prohibited/

ineffective content 417–419 ratification 235–237

revocation 237

of service 301–311 third parties,

liability towards 385–391 time limits 359, 365, 425–427 withdrawal

from 301–311, 425–429 Copyright 475–477 Corporations

(and Basic Rights) 106 Courts,

establishment of 97 Creditors/debtors,

definition 2–3 Criminal law

See also Criminal Code; Penalties

definitions/translation of terms 3

provisions in

Basic Law 97–99, 663–669 Criminal Code

(Strafgesetzbuch) 1, 7, 437, 617–749 assistance 701

attempts 699–701, 703 basic principles 619, 687

bodily injury 739–741, 747–749 definitions 685–687 emergency 705

guilt,

(in)capacity for 699 history 617

insult 715 intent 687

life, crimes against 731–739 omission 683, 687 penalties 707–713 perpetration/

participation 701–703 retroactivity,

prohibition of 619, 663–669 self-defence 703

spatial scope 683

temporal scope 619, 621–681, 683 withdrawal 703

young offenders 685

Culpa in contrahendo 383–385

Currency reform (1951) 195

Custom,

legal status of 4

D

Damages

See Compensation; Liability

DDR (German Democratic Republic) See also Unification (1990)

Civil Code 229 Constitution 659–661, 669

human rights law 649–657, 659– 661, 669, 679

policy on attempted

border crossings 625–629, 633–643, 653–657, 677

relationship with

Federal law 109, 621, 629, 631–635, 665

relationship with international law 649–657

Deaf mutes 561 Death penalty 97 Deception,

fraudulent 261, 263, 275–277, 281,

283–295, 295

by silence 281, 287, 291–295 Declarations

of will 241–243, 243–259, 261–279 See also Avoidance; Contracts;

Deception,fraudulent; Mistake; Wills

authentication 299 definition 239

effectiveness 299, 301–311, 311 form 297–299

interpretation 313

invalidity 243, 279, 281, 295–297 Defamation 437, 505, 715, 715–729

collective

(possibility of) 719–725

Defences,

coercion 545–553

in criminal law 703–705 emergency 319, 705 force majeure 605–609 mistake 689–697

self-defence 319, 321–329, 703 self-help 319

Defendants, multiple 561, 609 rights of 97

Delivery (of goods) 377, 413 Demonstrations, liability

arising out of 481–501 Dignity (human),

protection of 129, 219, 475 applied to animals 129–139 balanced against other

considerations 515, 543 and insult 715, 727–729

Diminished

responsibility 559–561, 699 Disclosure, duty of 281, 283–295 Drugs (illicit), cultivation

consumption of 159–173

E

European Charter of Fundamental Rights 131, 135

European Convention on Human Rights 715

status in national law 105 European Court of Justice 15, 97, 135,

137–139 European Union/

Community Directives 369, 371, 413, 419, 427, 429, 575

extradition/

political asylum 223, 225 and human/

animal rights 129–139 laws, status of

(vs national law) 4, 13–15 proportionality

principle 108 Treaties 15, 133, 225

Euthanasia 139

Expression (of

opinion), freedom of 173, 173–181, 505–559

scope of, analysed 519–527 Extradition 223

East Germany

See DDR

Education 181–183 Elections 53

See also All Germany election case

Electrical damage 605–609 Electronic text,

validity of 297 Emergency

as defence 319, 545–553, 705 states of 51, 187

Employers,

liability of 439–467, 563, 565–573 Equality (before the

law), right of 141, 541 access to public

office 49

business law 209–211, 215–221 between sexes 141–157

F

Fall in the

supermarket case 377–391, 429 facts of case 377–379

issue of liability 379–383 role of third party 385–391

Fallen telegraph

pole case 433, 435, 563, 565–573, 577 Fatalities,

compensation for 611 Fault,

contributory 375, 381, 501, 607, 611 of obligor 377, 377–391

Federal Border

Protection Force 51, 187 Federal Constitutional

Court 1, 89–91 arbitration on

State issues 89–91, 95–97

banning of unconstitutional organisations 11

and Basic Rights 99, 515, 519, 523, 527, 529–559

composition 91

electoral rulings 53, 57–81 on EU jurisdiction 15 interim injunctions 175, 179 international

jurisdiction 29–31 interpretation of

Basic Law 7, 89, 108 jurisdiction 89–91, 99, 201, 211,

215, 519, 529

rulings 107, 109, 185, 515, 529–559 Federal Council

(Bundesrat) 83, 85 role in composition of FCC 91

role in EU 13–15 Federal Courts 93, 97

See also Federal Constitutional Court; Federal Supreme Court

Federal Parliament

(Bundestag) 4, 91 elections to 53, 53–81 proceedings 557–559 role in EU 13

Federal Supreme Court 1, 93 rulings 251, 265, 597

Federation (Bund) administration 83, 87 constitutional

status 4, 9, 83 defence 51, 99, 187, 683

See also Army, Federal economy 99, 193–223, 229 electoral system 53

flag 11 international

relations 17, 19, 41, 49 political

organisation 11 relationship with EU 13–15 relationship

with States 43, 53, 83

responsibility

(for acts of officials) 579–605 territory,

reorganisation of 43–45 Film director

case 105, 107, 139, 173, 505–559 facts of case 505–511

general findings

(on Basic Rights) 511–527 case assessment 529–559 coercion, defence of 545–553 public opinion 557–559

Firearms,

possession/use of 321–329

in DDR law 627, 633–635, 661–663 5% Clause

See Barrier (5%) clause Food labelling 109 Foreign countries,

crimes committed in 683 Foreign nationals

(and Basic Rights) 106 Fowl pest case 371, 373, 435, 437,

439–467, 563

facts of case 439–441 judgment and

reasons 441–467 Freedom, rights of 49, 99, 139, 157,

183–185

of belief 159–173

of expression 173–181, 505–559 limitations on 117–121, 127, 173,

207, 527

physical liberty 111–127

French law (compared with German) Civil Code259, 331, 433–435 minors 561, 573

vicarious liability 573 French Revolution 521

G

‘Gazumping’ 393 Genocide 683, 737 Goebbels, Joseph 545–553 Good faith, role in

business law 299, 365, 369–371

Good morals

and boycott 505–511, 529–559 offences against 313, 503, 749

‘Grace and favour’ 241 Gravel extraction case 191 Guardianship Court 237–239 Gysi, Gregor 173–181

H

Harlan, Veit 505–511, 529–559

Health, protection of

See also Public safety as constitutional

right 165

and drug offences 165–171 Herzog, Roman, Dr 89 Hierarchy

(of legal norms) 4 Housework day case 141–157

facts of case 143, 147 historical/legal

background 145 rejection of claim 143, 147 result of appeal 143, 149–157

Human rights

See also Basic Rights

in DDR law 649–657, 659–661, 669, 679

European

statements of 105, 131, 135, 715 in international law 649–657

UN Declarations on 119, 659

I

IHG

See Investment Aid Act case Imprisonment

See also Penalties

and human dignity 129 Industrial action 579–605 Industry,

investment in 193–223 Inheritance 191

Insult of soldiers

case 139, 173, 715–729

Interest

payment of 371–373, 613 base rates 371

on debts 413

Interim injunctions 173–181 International law

See also European Union/ Community; NATO

on human rights 649–657 relationship with

Federal law 17, 19–39, 41, 97 States’ role in 49

Internet auction case 259, 279, 317, 333–357, 411, 415, 423

facts of case 333–339 judgement and

reasons 339–357 Investment Aid

Act case 139, 193–223 admissibility of

complaints 197–201 and Basic Rights 205–223 challenges to

complete statute 201–211 challenges to individual

parts of statute 211–223 and Federal

competence 201–205 historical/legislative

background 195–197 Inviolability of the home,

right of 189–191

J

Judges,

appointment 89, 93 dismissal/retirement 95 function 5, 87, 99

legal position 93–95 politics 89

status of decisions 5, 7, 527

K

Kite case 575, 605–609

Krenz, Egon 173

L

Land purchase

mistake case 261–279, 281 Legal persons 229, 233

rights 199, 209 Legal transactions

See also Contracts avoidance 315–317 conditions 363 consent 367 definition 239

invalidity 239, 313–315, 371 one-/many-sided 237, 239,

317, 367 Legislation, institutions/

processes of 53, 83–87 Liability

See also Compensation; Negligence; Third parties

accident (following deprivation) 613

buildings 577, 615 criminal 687, 701–703

damage to property 497–501 financial harm 373, 487–489, 503, 511

general principles 433, 435–437 joint 609

limitation 559–561, 615 manufacturers 399–411, 439–467,

575

moral harm 503 officials 579, 579–605 strict 575, 605, 605–609

vicarious 563, 565–573, 573–575 Loans,

forced 205 repayment 371–373

Local government 9, 43 Locus standi (in constitutional

complaints) 91

M

Maastricht Treaty 15

Manslaughter 735–737

Manufacturers

(liability of) 399–411, 439–467

Markesinis, BS, Prof 2 Maternity law 153 Mentally incapacitated

persons 235, 573, 699 ill-treatment of 739–741, 741–747

Mephisto case 173 Military service187, 227

conscientious objection157, 187 Minors 235–239

and criminal law685, 699 definition 231 education181–183 ill-treatment of739–741 injuries to605–609

legal competence235, 239 legal representation235–239 responsibility 561, 573, 699 rights106, 181

supervision 573 Misdirected withdrawal

declaration case301–311 facts of case 303 judgment and

reasons 305–311 Mistake 247, 259, 261–279

in criminal law 687, 689–697 Mitigation 709

Morality

See also Good morals of military life 717

offences against 503, 611 Movement, freedom of 185 Murder 731–733

motives 733, 733–735

N

Name, right to 233 Nationalisation 223 NATO

role in Bosnia 23, 25–29, 33–39 Natural disasters 51

Natural persons 229–233 legal competence 231

Nazi regime 139, 505–511, 529–559,

647, 661 film industry/

coercive methods 545–553

Negligence 321–329, 377–391, 397 criminal 687, 749

definition 377 during delay 377 fatal 739

Newspaper delivery

obstruction case 9, 173, 183, 435, 437, 481–501, 561

O

Obligations 369–431 on behalf of

third parties 397 liability 377, 377–395 performance 369–375

See also Performance (of obligations)

relationships (defined) 419 termination 421

towards third

parties 385–391, 419–431

Officials,

determination/ performance of duties 591–605

Federal/State 51–53 freedom to strike 583–591 liability51, 579, 591–605

P

Parental duties/

rights 106, 181, 435, 573 Parties, political

See also Barrier (5%) clause banning of 11

combination of lists 55, 67–73 conflicts over

international issues 19–39 effect of unification 53, 65–67 and judiciary 89

Partnerships, rights of 201 Penalties,

attempted acts 699, 703 bodily injury 739–741, 747–749 combined 711–713

determination of 619, 697, 707–713

linked to consequence 697 murder/

manslaughter 731, 735–739 reduction 687, 701, 705, 707–709

Performance

(of obligations) 369–375 delay 411–413 determination 423–425 failure to provide 425–429 frustration/

impossibility 375–377, 397 hindrance 419–421

mutual 425

for third parties 429–431 Personality,

rights of 139, 469–481, 729

See also Dignity Persons,

natural vs legal 229

See also Legal persons; Natural persons

Petition, right of 225 Police

border control 51 rights of detention 99

Precedent, role of 5

Press, freedom of 173, 173–181 Privacy, right to 139, 185

Product liability 399–411, 439–467, 575 Property,

definitions 191 expropriation 191 inheritance 191 inviolability 189–191 owners’ liability 577 ownership/sale 261–279 rights of 189–191, 207–209

Proportionality, principle of 108–109

arrest 119–121, 125–127 in DDR law 627, 659 drug offences 168–169

Public safety,

air travel 593–595, 599–601 emergency

provisions 51

vs property rights 189–191

Public sector industries 213 Public transport,

contracts 415 taxation 213

Publication of a letter case 139, 233,

469–481, 715

facts of case 469–473 judgment and

reasons 473–481 Punishment

See Penalties

R

Referenda 43–45 legality of 689–697

Referendum mistake case 689–697

Refugees 223–225 Regulations,

and Basic Rights 107 business law 217 legal status 4 passing of 85

Religion,

in education 181–183 freedom of 49, 157, 159–173

Retirement ages 141 Retroactivity

(of Criminal Law

Code), prohibition of 619, 663–669 Right to give the

opposite view cases 173–181 facts 175, 179

judgment and

reasons 175–179, 181

Rights

See also Basic Rights; Human Rights

of accused/defendants 97, 99 catalogue of 435

civic 49

translation of terms 3 Rome, Treaty of 141

Rough ill-treatment case 741–747

S

Schäuble, Dr 67 Schmid-Tübingen, Dr 557–559 Self-defence 319, 321–329, 495–497

in criminal law 703 Self-help (as defence) 319 Service(s)

contracts of 301–311 of process 311 unsolicited 369

Shooting at the disco case 319,

321–329, 435

Shootings at the Berlin Wall case 97, 109, 621–681, 733

DDR law/

policy 625–629, 631–643 facts of case 623–625 international law 649–657 justification,

grounds for 629, 643–647, 659–671

ultimate findings 673–681 Silence,

as consent 241

deception by 281, 287, 291–295 Socialist Reich Party 11

Somalia, sending of troops to 19 Springer, Axel 491

State(s) (Länder), assistance, mutual 51 Constitutional

Courts 91, 95–97 constitutional status 4, 9, 83 definition of term 3 internal government 43, 83 international

relations 49

law, vs Federal law 47, 83, 89 names, listed 9

relations with EU 13–15 relations with

Federation 43, 53 reorganisation 43–47 representation on Federal bodies 101

treaties with other States/foreign

powers 47, 49

Statutes,

and Basic Rights 107–108 business law 193, 201 extradition 223

general 173 legal status 4, 97

nationalisation 223 passing of 83, 85–87 political asylum 225 strict liability 605–609 violation 437

Supervisors/carers, ill-treatment by 741–747 liability 573

T

Taxation,

public sector industries 213

scope of definition 203–205 Telecommunications 417 Termination of

negotiations case 393–395 Territory,

reorganisation of 43–45 Third parties,

claims to compensation 611

consent of 367 determination by 423–425

liability towards 385–391, 419–431, 429–431, 441–447, 613

responsibility for 397 Threats 281, 295

Tort(s) 433–615 contrasted with

contract law 443, 457 joint perpetrators 561, 609 limitations 559–561 minors 561

overlap with

contract law 377, 381, 439 overlap with

criminal law 715

third party liability 441–447 time limits 615

Translation,

principles of 2–3

Treason 683

Treaties,

conclusion of 47, 49, 225

U

UK law (compared to German)

contracts 259, 281, 331, 333, 361, 393

criminal law 699, 707, 731 declarations of will 241, 259 defamation 707 duress/threats 281

human rights 105 legal transactions 315 local government 9 minors 561 precedent, role of 5 proportionality

principle 108, 111 sexual equality 141

torts 433, 435, 503, 505, 561, 563 vicarious liability 563, 575

Unification (1990)

See also All Germany election case applicability of former

DDR law 631–635 effect on Basic Law 15, 101 effect on Civil Code 229 effect on criminal law 617,

621, 631–633 effect on electoral system 53, 81

Unintended declaration

of will case 243–259, 279 facts of case 243–247

judgment and reasons 247–255 results of appeal 255–259

United Nations, Human Rights

Committee/ Declarations 119, 651, 659

role in Bosnia 21–23

V

Vocation, freedom of 107–108, 185