Reichsoberhandelsgericht

With the disintegration of the Holy Roman Empire in 1806 the judicial activities of the two German supreme courts – the Reichskammergericht in Wetzlar and the Aulic Council (the Reichshofrat) in Vienna – also came to an end. For more than six decades no federal supreme court existed in the German territories until the Reichsoberhandelsgericht was formed in 1869.[1] During the time of the German Confederation (1815–1866) and the North German Federation (1867–1871) the only court with jurisdiction for more than one territory was the Oberappellationsgericht der vier Freien Städte (High Court of Appeal of the Four Free Cities, 1820–1879), which had territorial jurisdiction for Bremen, Frankfurt, Hamburg and Lübeck.[1]

The German Confederation did not establish a federal supreme court, because the Confederation left the sovereignty of the individual territories and states largely untouched.[2] But due to the lack of a federal supreme court, some concern existed regarding the further fragmentation of the law in the German territories. These concerns intensified after a uniform commercial law, the Allgemeines Deutsches Handelsgesetzbuch, was introduced in the German Confederation without a federal supreme court being able to ensure its uniform interpretation.[1] The German Jurists Forums (Deutsche Juristentage) therefore called in 1860, 1861, 1863, 1864 and 1867 for the establishment of such a supreme court.[1] In 1860 the German Jurist Forum argued, that at least for the unified areas of law – meaning commercial law and the law on promissory notes – a federal supreme court would be necessary to ensure a uniform development of the law.[3]

The formal legislative process for the establishment of the Bundesoberhandelsgericht was started in 1869 by Saxony. Saxony introduced its bill on 23 February 1869[4] and probably coordinated it with Prussia.[1] The bill was quickly passed by a large majority in the Federal Council (Bundesrat) and the Reichstag in the first half of 1869.[4] During the legislative deliberations it remained largely unchanged, but met some opposition from the free cities belonging to the Oberappellationsgericht.[1] During the parliamentary deliberations Johannes von Miquel notably argued with a view to a possible German unification that "from a legal point of view, this Court is provisional, but from a national point of view, it is definitive".[1]

The Georgenhalle, the seat of the court, in Leipzig (c. 1860).

The Bundesoberhandelsgericht (abbreviated BOHG) was created by its federal establishment law of 12 June 1869. The court constituted itself on 5 August 1870 in Leipzig, on the same day its establishment law entered into force.[5] Contrary to original plans Otto von Bismarck – then the Chancellor of the North German Confederation – was unable to attend the constitution of the court in the Georgenhalle in Leipzig due to the outbreak of the Franco-Prussian War.[6] The seat of the court also was at the Georgenhalle.[7]

After the establishment of the German Empire the Bundesoberhandelsgericht was no longer a court of the North German Confederation, but a court of the German Empire. It was renamed Reichsoberhandelsgericht (ROGH) on 2 September 1871.[8] The court had jurisdiction primarily over disputes relating to commercial law and the law on promissory notes. The court's jurisdiction was subsequently expanded both geographically and in terms of subject matter. After 1871, it took the place of the French Court of Cassation in criminal cases from Alsace-Lorraine.[6][9] In its practise the court had to apply about 30 different procedural codes.

As a rule, the Reichsoberhandelsgericht was a court of the third instance, but in special cases it could also sit as a court of the second or of the fourth instance. For the member states, it replaced the corresponding higher courts of the individual Länder and free cities in the subject-matter jurisdiction exclusively assigned to it. The judgements of the court were initially issued "im Namen des norddeutschen Bundes" ("in the name of the North German Confederation"), later "im Namen des Deutschen Reiches" ("in the name of the German Empire").

After the Reichsjustizgesetze of 1878 entered into force, the Reichsoberhandelsgericht was succeeded by the Reichsgericht with effect from 1 October 1879.[10]

The case law of the Reichsoberhandelsgericht had a lasting influence on the practice and teaching of German promissory notes law and commercial law in general. As a judge of the court, Levin Goldschmidt argued that it was the natural task of the court to preserve unity in the application of the law and to further the development of the unified areas of law.[11] Due to the expansion of its subject-matter jurisdiction many contemporaries saw the court not as a special court for commercial law but as a general supreme court,[11] a view that is shared by commentators today.[6]

The establishment of the court marked the beginning of an institutional tradition that has continued through the Reichsgericht to today's Bundesgerichtshof.[6] Exemplary for this tradition is the collection of its important cases named "Entscheidungen des Reichsoberhandelsgerichts" ("Judgments of the Reichsoberhandelsgerichts"), abbreviated BOHGE/ROHGE, in whose tradition the later "Entscheidungen des Reichsgerichts" (abbreviated RGZ/RGSt) and the "Entscheidungen des Bundesgerichtshofs" (abbreviated BGHZ/BGHSt) still stand. Regina Ogorek has argued that the court marked the institutional beginning of the end of an epoch of fragmentation in the law.[12]

Originally the Reichsoberhandelsgericht had no panels, the decisions therefore had to be taken in plenary sessions. This was rectified with effect from 1 September 1871 when the court formed two panels.[13] The first panel (Erster Senat) was chaired by the court's president, Heinrich Eduard von Pape, while the second panel (Zweiter Senat) was led by its vice president August Drechsler.[13] On 9 July 1874 a third panel (Dritter Senat) was formed and chaired by Karl Hocheder, who also became a vice president of the court.[14] The president distributed the cases to the individual panels.[15] To render a decision seven judges had to participate in the case and a majority for the decision had to be found.[16]

Any qualified lawyer or advocate – a unified bar was not created until 1879 – could plead before the Reichsoberhandelsgericht. No singular admission existed for the court.[17][18]

In 1869 the local jurisdiction of the court extended throughout the North German Confederation.[20][1][21] During the time of the short-lived German confederation in 1870 its territory was the court's territory until the German confederation was succeeded by the German Empire in 1871. Correspondingly the local jurisdiction of the court was now the Empire's territory.[22][1] The last extension of the court's local jurisdiction happened on 14 June 1871, when the Reichsoberhandelsgericht succeeded the French Court of Cassation for appeals concerning cases originating from Alsace-Lorraine.[23]

As the name of the court suggests it was originally conceived as a civil court for commercial law matters. Accordingly, its subject-matter jurisdiction only extended to cases concerning question of commercial law. Section 13[24] of the court's establishment statue elaborated what specific commercial law questions were covered.[25] Later the court's subject-matter jurisdiction was rapidly expanded by statute. For example, matters concerning copyright law, patent law and trademark law were added to the court's docket.[1] But not only newly developing matters like intellectual property law were added, even some specific matters of general civil law – for example matters concerning strict liability for operators of trains – were added to its subject-matter jurisdiction.[26] The court was even granted jurisdiction for some criminal law matters, but private law remained firmly at the centre of the court's jurisdiction.[27]