I get this sense, from having seen many articles on hn about German court rulings, that the philosophy of law in Germany is sort of weird. In particular it feels that they tend to decide in favor of some perceived status quo and not the law or the facts of the case.
I don’t know anything about this though.
Are there any German lawyers here who can comment on the spirit of German legal philosophy in the courts?
I can only comment anecdotally, but my one experience with a German court was weird to say the least: I bought a house from a community of heirs and shortly said, they have falsely disclosed that they were legally prepared to sell the house and the delays until they were ready incured quite some costs, but nothing critical, just a few thousand euros.
I sued to recover the costs and the case got assigned to a high profile judge in the city (don't ask me why, as again we are talking about a few thousand euros), who dismissed the case with, I quote "I also sold a house as part of a community of heirs and we had everything in order and it still took several months, you should have expected this". Completely ignored proof that they lied (in writing) to make me sign the contract and that it took them more than several months just to start the process that then took several months to complete
I find in general this is the attitude in Germany - if you complain about some needlessly complex bureaucratic procedure here, or even just in general about something that is negative about Germany - people will usually say something along the lines of "But of course it is like this, because X, Y, Z".
I find the attitude in another countries tend to be a bit more reflective and open to criticism - here, everything is the way it is, because.. it is?
Is there a word for this argument? You see it a lot on stack overflow etc too, like "Why do I have to do X" "Because Y requires you to provide this information"
Your opinion looks like to be you should only sue someone if they rip you off royally, not "just a few thousand euros". I'm not sure from you are from, but in any country you can sue anyone or call the police on them even for an euro or a dollar or whatever the currency is. Fraud is fraud no matter the monetary value.
I think it is quite possible the the buyer didnt do sufficient homework. It is also quite possible that the seller had reasonable grounds to think that everything is in order but got side swiped by German bureocracy. It is also possible that the buyer wanted to take advantage of a simple mistake and started yelling "fraud!". Maybe he would have fared much better had he saught legal advice before entering such a large financial commitment, and saved himself the time and effort of going to court.
Someone bringing a suit will typically research things quite well and not have assumptions about core elements by the time they file. And sometimes there never was speculation at all. What do you mean "must"?
More to the point, even if you want to call it an assumption a median lawsuit is a lot more thorough than something a commenter guesses offhand as they post. The two are leagues apart whether or not you use the same word.
I don't think you know what assumption means. Let me help you out. He researched an asset so well he decided to purchase it without professional help. When it didnt go to plan he assumed the seller commited fraud. Based on that assumption he took them to court. He then reasearched his case so well that, by the sound of it, the judge laughed him out of the court with a personal anecdote. He then went to HN to bad mouth the judge assuming he is incompetant. So much reasearch. You sound like a professional accuser.
I don't know the specifics. But I live in an Eastern European EU country. The usual process is the buyer gives 10% of the selling price deposit and specifies the date by when the contract must be completed (usually 3 months). If either party does not honour the contract they pay the fee equal to the ammount of the deposit. This is usually much more than few thousand euros. Moreover the title deeds are publically available. The usual practice is to not hand over any deposit until the buyer is satisfied that the title deeds are all in order.
Usually (well, here in Poland) it's around 10% of value, that buyer loses if they change mind but seller have to pay 2x if they back off.
Then usually after signing that you can get the mortgage (at the very least it is much easier if bank gets the papers showing you're in progress of buying home).
After you sign the final deal, you pay and you are then written down (and bank, if you buy with mortgage) into land and mortgage register (which in my language is just called "perpetual book", funnily enough).
There is a bit more complexity when buying some old stuff that might not have entry in the registry, like my grand-grandfather house only have some documents for getting land from government after war and then them giving it to grandchildren few decades ago
> Usually (well, here in Poland) it's around 10% of value, that buyer loses if they change mind but seller have to pay 2x if they back off.
Same procedure in Italy with the difference that there is no mandated amount. Of course the higher it is the less likely is that the seller backs out of the deal.
I was a litle vague on purpose, but this was some time ago, so I can provide some other details I think. Please note that the case presenteted to the judge was about 40 pages long, this is just a very condensed version.
They needed a total of 30 documents and they said they had 28 of them, with the 2 remaining being non-critical and needed just to cover all bases. I analyzed the risks based on this information and acted accordingly with 2 things: one was signing the contract at the notary and the second was taking a bank loan.
The contract was signed with the official representative of the community of heirs and would go into effect after all other heirs have signed it, which was supposed to happen within 2 weeks. After 2 weeks I found out that not all heirs had their inhertiance papers (think 22 of 30 documents actually available) and one of those went no-contact because he had the smallest part and decided the effort isn't worth the money.
After 6 months, since the contract wasn't in effect, I haven't accessed the money from the bank, so the bank started issuing a fine (as per the contract I signed with them) of about 1000 Euros monthly (it's called Bereitstellungsprovision), which went for some months until they got their shit together.
Had I known that they didn't have all documents ready, I would not have entered the contract. Or I could have negotiated with the bank for a longer period to access the money.
That would quality as fraud if the representative knew that the remaining coinheritors would block and if they gained something from the delay (some kickback setup from that back fee? The world we live in is crazy but it's not that crazy). The way you describe it reads as if the inheritor representative might have been just as surprised by the delay. Incompetence, and possibly being on the hook for the bank penalty due to that incompetence (or not, that's far beyond my judicial capability) but certainly not fraud.
Perhaps a more experienced buyer would have added some penalty clause to hedge against the idle money issue (banks don't like a delay between money availability and purchase of the collateral, that's a common issue I think), but since the problem is (was, I hope?) that the contract itself did not happen in time that surely wouldn't be easy (some multi-stage monstrosity, ouch). Unless they lied to get some advantage it can't really be fraud. (and what advantage would it be anyways? If the market price rose during the delay the sellers might even suffer a bigger net loss than that bank penalty ... I guess that would be a way it could become fraud, if they then suddenly refused signing, to sell to a higher bidder, abusing the delay for a safe market bet)
I suspect that this entire class of issues is a common pitfall people who routinely deal with real estate are well aware of, one of the risks kept in check by experience and taking the occasional blow.
That is an almost accurate interpretation. They knew for sure the state of things and were not surprised by the missing documents - this was proven during the pre-trial.
I can only speculate as to why they did it, but I am pretty sure that it was to get the whole process started because some of the heirs were in poor health and they needed to sign the contract sooner rather than later, otherwise they would have entered in a potential loop of heirs dying and having to find the heirs of the heir and so on. So they said, let's start this thing now to minimize that risk and work on the rest of the documents later. From this point of view, they were right, as two people died in the months that followed.
I am also sure that they've hidden the fact because they knew that in this situation, it would have been nearly impossible to find a buyer willing to take part in the risk.
You are right with your remarks about experienced buyers. All in all, I have almost 0 regrets about the whole thing, I learned a lot of stuff in the meantime and got the house eventually
I don't know if you had to pay a deposit, but if you did I think you are really lucky that the owners turned out to be honnest sellers. If you took this approach in Eastern Europe with a property that has many owners of distant relations you would have very likely lost your deposit and courts would be unable to help you. If there are more than two owners (husband and wife) my advice is to pay a lawayer around a 1000eur to see you through the whole legal process.
> they lied (in writing) to make me sign the contract
Lying in order to cause someone else to do something they wouldn't otherwise do is fraud.
Apparently, in this town it's common practice to say, "X is already done" when X hasn't yet been started -- even the judge does it! But it's the town and its standards which are screwed up, not the guy who expected to be told the truth.
(This is all accepting his description of the situation prima facae, of course.)
I am not German, but as part of my degree I went over to Germany and did a course on the philosophy of law. From the perspective of Anglo-American common law, I can confirm it is indeed quite strange.
German written law tries to be all-encompassing, which tends to make it fairly contorted and hopelessly vague. German judges are often surprisingly young and inexperienced, since they get on the judge career track straight out of university (rather than being appointed after decades in legal practice). German courts at all levels seem to do an awful lot of pontificating, rather than striving to apply the law to the facts. Despite this, court decisions tend to be brief, and do not generally explain the judges' reasoning in any great detail. They are also not binding precedent, so the actual state of the law at any given time can be harder to discern.
The net effect was of a system that felt somewhat arbitrary, with broad-ranging but unexplained decisions made by relatively inexperienced people, often well outside any area with which they could reasonably be expected to be familiar. In general, there was much less legal certainty than I would be comfortable with.
I should note that these are fairly fine-grained critiques; it's important to keep them in context. There are far more capricious legal systems out there than this.
German, but have not studies law: Interesting, because as a german the common law approach is equally weird. I see judges as only interpreter of law but they wield so much power in the common law system. In my perspective the only source where the decisions should be derived from is the law and not some precedent. Lawmakers are the representative democracy in action but judges are not, way more arbitrary. So the law is the only source of truth which we learn to read (amateurish) in school, so I feel a bit comfortable in reading it and have some idea what's going on when I talk with law-school friends.
In contrast, the respect for precedents results in a system that's not "derived from first principles". It has a certain elegance because you have a book where the law is written and you can just follow. It feels way more arbitrary and wrong to refer to some case years ago, undemocratic I would say and also inaccessible besides for the professionals who know how to find these. Not that you as an amateur should defend yourself but for small disputes you can still look at the law and ask someone more familiar to give you the right paragraphs before turning to a professional lawyer and a legal dispute.
Of course it has its own disadvantages and the laws get hugely complicated in effort to regulate everything.
Maybe because I've grown up here, but to me Common law feels "medieval" and I do not want to switch to a system where judges posses so much power. Ideally, in my POV, decisions should be almost algorithmic from a source of truth, comparable to computer code, specifying rules on how to arrive at results.
> The net effect was of a system that felt somewhat arbitrary, with broad-ranging but unexplained decisions made by relatively inexperienced people, often well outside any area with which they could reasonably be expected to be familiar. In general, there was much less legal certainty than I would be comfortable with.
Some perspective on this, since I know a judge. In germany, it is common to rotate the judges every few years to new positions (e.g. from traffic to financial cases). They get a refresher in the specific laws relevant for the area, but they also have a "group" they divide the cases with. The group also acts as professional support to each other so if there's uncertainty then there's always the colleagues.
> They are also not binding precedent, so the actual state of the law at any given time can be harder to discern.
This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel.
Secondly, precedent is a pretty good guideline to what will actually happen.
Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system?
>> This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel.
This is typically the case in common law systems with a written constitution as well (the US, Australia, India, etc). Laws not consistent with the constitution generally get stuck down as invalid to the extent of any inconsistency.
In practice, of course, most day-to-day cases do not engage with constitutional principles in either system. If you're facing a criminal charge of larceny, and you're searching the Constitution / Basic Law for your defence, I might diplomatically call your approach... bold.
>> Secondly, precedent is a pretty good guideline to what will actually happen.
>> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system?
This is a great question! Precedents can and are overturned in several ways in common law systems. A higher court can overturn a lower precedent, and generally also its own previous precedents. A lower court is more restricted, but perhaps the most common way to avoid a precedent is to "distinguish" it - this means to basically claim that the two cases are not alike, and so the precedent ought not apply. (Very loosely speaking, precedent is only binding on alike cases - this is the basic theory of precedent, that the case has already, in fact, been decided before. The Latin term you often hear for this is stare decisis.) This is tricky, and higher courts will rap lower courts on the knuckles if they're not obeying precedent that binds them without good cause.
But more broadly it's important to remember that precedent ("common law") is subordinate to written law ("statute law"). So if the legislature passes a law, and the judiciary interprets it in a way that the legislature doesn't like, the legislature is entirely free to amend that law to correct the court's understanding, which renders the precedent moot. The one exception is constitutional law, which might be more complicated to amend (referenda may be required), so courts have to tread carefully.
From your description, it sounds very similar to how the German system works in practice. As I understand it (not a lawyer, married to one), a lower court will in practice basically never go against the precedent of a higher court.
I think there's a sort of principle here that differs: what makes a law legitimate? One reason why I don't like the idea of common law is that it entails that tradition should carry a legal weight, above and beyond what it already always practically does. This is why people accuse Burke of 'ancestor worship' - you take ordinary, fallible people that just had the luck of living and acting in the past, then you treat their decisions as bearers of a measure of inherent authority.
It might be a tolerable system if you were living in a society with a proud and morally upright history. That supposition is some of the impetus for Burke's defense of the idea of giving inherent ethical weight to tradition. I don't think any nation on earth qualifies, though.
> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system?
It is also not the correct institution to "make law" I think. It does not represent the population in some way as in a representative democracy should be. It was not debated in the parliament and it was not campaigned on. It is in some way a rule of experts.
German, but not much knowledge of all things judicial: I believe that the German system might suffer a little from being torn between the Roman law tradition (via Code Napoleon) where the code is undisputed authority on one side, and common law tradition on the other, where consistency with precedence is considered very important.
That's ... a bit shortening reality. They are not required to follow precedents from the same level of courts (lower, upper, state court, federal/supreme court), but in practice they do so, particularly if there have been multiple similar cases. Federal and supreme court rulings are effectively binding for lower courts.
Notable disagreements exist as well, for example the Landgericht Berlin who routinely ignores even Supreme Court judgements [1], or the Landgericht Hamburg which is infamous for happily providing c&d orders to a degree other Landgerichte do not [2].
I matters which court handles the case. For instance Hamburg would always be on the, how should I put it, the evil corporate side.
Munich recently showed to be on the people's side.
And Leipzig apparently has some corrupt judges. How else can one explain this ruling if not corruption? Which is weird because people in Eastern Germany are more humane than those in western Germany. But apparently also more needy of money.
Who were the judges or was it just one judge and what was their/his/her history, that's what I'd find interesting.
For me this means, boycott Sony, which already lost my support with the trash TV from 2015. But screwing with our liberties on that level, I use quad9 as my default resolver, also because I like to read censored Russian media to have both sides' stories.
If I had the money I'd support quad9 in their struggle.
Also the audacity of the Leipzig court. The arrogance, unbelievable.
as someone living in germany this is absolutely not my impression about courts deciding differently and e.g. siding with "evil corporate side". I also doubt it's corruption, maybe just a smart pick of the district to maximise the chance of judges seemed sympathetic (and completely unknowledgeable of technology).
> Which is weird because people in Eastern Germany are more humane than those in western Germany. But apparently also more needy of money.
There's a selection effect. If you learn about many court cases from your own country from different sources, but you only learn about some court cases from germany from HN, you have to ask yourself what kind of court case gets upvoted on HN.
I don’t know anything about this though.
Are there any German lawyers here who can comment on the spirit of German legal philosophy in the courts?