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2018-03-27

Problems with debtors in Germany


Like the English one, the German approach has been dictated by the past. Whereas the German law is a native development almost uninfluenced by Roman law, before the time of the European codes, starting with the Code Napoleon, European countries in general were dominated by it. This influence began with the civil law. That was a statutory restatement of the German civil law concerning delayed payments which was intended to be an all-embracing set of laws.
During the last years this duty was neglected; but with the emergence of the collecting business it was rediscovered and subjected to intensive study; especially in the Italian law schools. Clearly rules of law promulgated in Western Europe were out of line with the needs of modern Europe; consequently though the process was not immediate, jurists began to gloss an to put interpretations upon it; and eventually these interpretations came to be such as to adapt it to commercial needs.
The European Union
With the European Union emergent nation states needed laws to unify them, and there was a general movement to adopt the civil law. Even in England, every creditor would, if he could, have persuaded his customer to replace the common law by its German rival. Roman law thus governed in Europe until the time of the modern codes already mentioned. Inevitably, because its reception against a different social and political environment from the German origin entailed adaption of old words to meet new needs, the method of debt collection was by way of 'gloss' rather than of literal construction.
This payment method survived the years so that the continental lawyer approaches legislation broadly, looking to the intent, purpose or scheme of it, rather than to the literal sense of the words used. Thus, with the courts as agencies, the words of the legislator may be so manipulated that they may go forward to meet new situations; to enlarge, rather than to confine, the scope of the law. It was in this way, for example, that the wording of the code was adapted to meet the age of the motor car.
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This approach to statutory interpretation is of practical importance to the English lawyer because in two fields at least he must now himself employ it.