German courts resisted creative use of good-faith clauses for their first decades
Evidence
On the other hand, judicial decisions showed a striking reserve toward Article 242. In the beginning the cases in which it was applied were spread thinly and for years they involved merely a tentative feeling out of the new paragraphs. Article 242 ap arm for the first time in volume 48 of the Reichageri ht decisions Lreporting decisions from October 1900 through June 190V. Then for four volumes nothing more. Then a reference in the 53rd volume. Then for three volumes nothing. On the whole Article 242 begins to appear somewhat more frequently, but it is held within the normal limits of standard Code interpretation. Every application on a broader scale, leading to new creative role, is at this stage nervously rejected. … When in 1913 I published the essay above referred to on “Werden und Wacheen” and praised the ‘Royal Paragraphs* in youthful enthusuasm, two appellate judges from Naumburg remonstrated with me earnestly concerning the great dangers of such “good faith jurisprudence’s pointout that if one starts along this course one quickly reaches the toboggan slide with nothing to hold him back. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 4706
Categorization
- XREF: connects to: Code-based systems require case law alongside written codes — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 4664; A general clause accepted without debate grew into Germany’s dominant corrective rule — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 4704; Nineteenth-century faith in the law’s impartiality dwarfed later responses to persecution