lucidity, this article also did not resolve the legal basis of the relationship between the singularis successor and the sitting tenants and the rights/duties which they had towards one another. Since the drafter of the Prussian Civil Code did not provide a comprehensive overview of his ‘motives’ for framing articles of the Code in a specific manner, the true reasoning behind it may never be known in full. At best it may be speculated that he was influenced by natural-law doctrine in this regard.

3.3. From the Prussian Civil Code to the German Civil Code

Germanic legal scholarship of the nineteenth century leading up to the codification of German civil law in 1900 was dominated by two juristic movements.40 The German Historical School dominated roughly the first half of the nineteenth century and followed methods not dissimilar to those of the Humanists of the sixteenth century in the sense that they were mainly concerned with uncovering the true state of classical Roman law with a view to providing a solid doctrinal foundation for contemporary law. Evidence of this may be seen in the works of scholars such as Mackeldey41 and Mu¨ hlenbruch.42 During the mid-nineteenth century, an offshoot of the Historical School, known as Pandectism, gained prominence. Jurists of the Pandectist movement held various views on the subject.43

As was the case prior to the enactment of the Prussian Civil Code, the drafters had a number of potentially different options before them. It is interesting to note that later works setting out the process of decisionmaking regarding the German Civil Code, like the Motive and the work by Enneccerus, present the ‘common’ law as if it were the Roman-law position with only the briefest mention of customary law or the ius commune position.44

The drafters of the German Civil Code were influenced by the Prussian Civil Code, but did not follow it in all respects. The most important deviation from the Prussian position was to deny that letting and hiring created a real right while at the same time providing sitting tenants with legal recourse where they were threatened with eviction by the new owner. According to commentators of the time, the motivation for this hybrid was neither legal-philosophical nor based on a class bias. Rather, it seems to have been driven by a socio-political motive

40 Stein, Roman Law, pp. 115–22. 41 Lehrbu¬ch, § 379. 42 Ibid., § 413.

43Zimmermann, Obligations, p. 380.

44The reality is far more complex; see Mugdan, Gesammten Materialen, §§ 509–11.

30 i n t r o d u c t i o n a n d c o n t e x t

taking the large proportion of the German population, which lived in rented accommodation, into account.45

In dealing with this matter, the German Civil Code distinguishes between letting and hiring of movables and immovables. In the case of movables, the sitting tenant is not given any specific protection. The singularis successor becomes owner and acquires the owner’s vindication through cessio and the only remedy open to the sitting tenant is to raise an objection (by virtue of his possession) that he is entitled to it when threatened with eviction (art. 986, Abs. 2). In the case of immovables, the singularis successor steps into the shoes of the former landlord and acquires the rights and duties of the former landlord for the remainder of the lease (originally art. 571, since renamed art. 566). Part 2 of article 571 also provides the sitting tenant with a remedy against his former landlord where the singularis successor fails to honour the lease. If evicted, the tenant must first seek recourse against the singularis successor. The former landlord is liable in a subsidiary capacity (as a guarantor), unless the tenant had been notified of the transfer of ownership.

It is not the purpose of this chapter to discuss the modern developments after the enactment of the Bu¬rgerliches Gesetzbuch (BGB) as this can be traced in one of the authoritative expositions such as the Munich commentary. It is worth noting, however, that the recently published model rules on European Private Law, the Common Frames of Reference (CFR), contains a section on lease of movables (lease of immovables is yet to be tackled). Much like in German law, the CFR states explicitly that lease only generates personal rights. Under the CFR rules, the singularis successor steps into the shoes of the landlord, provided the tenant is in possession of the leased movable (CFR B-7.101). This is an indication of the continued importance of possession in case of movables. The former landlord remains liable in a subsidiary capacity akin to a provider of security should the singularis successor fail to fulfil his duties under the lease. The effect of this is similar to the position regarding immovables in the German Civil Code. The rules do not explicitly mention what the consequences would be for a singularis successor who does not wish to continue with the lease. Presumably, he will be bound to tolerate the sitting tenant until the earliest possible time when notice to quit can be given under the contract.

45See Motive, §§ 509–11. The various comments by the different commissions may be traced in the Beratungen.