10 ms·

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 feel

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?

kioleanu 3y ago
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
- medo-bear 3y ago
  Are you American?
  - kioleanu 3y ago
    I am not, why?
    - medo-bear 3y ago
      Because you bothered to take someone to court over something like that. Im not saying its not a shit go by the seller (it is!) but why bother
      - flumpcakes 3y ago
        Because it is thousands of euros lost by fraud?
        usrusr 3y ago
        Taking a bit longer than you thought is many things, but it's not fraud.
        gwd 3y ago
        The person said: > 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.)
        kioleanu 3y ago
        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.
- deleted 3y ago
  [deleted]
- calmoo 3y ago
  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?
  - rendaw 3y ago
    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"
    - dustypotato 3y ago
      Circular reasoning?
  - chironjit 3y ago
    Living in germany for a year now, and holy cow how Germans backwards rationalise so many things this way. Like wtf, how can the powerhouse of Europe be so thick?
troad 3y ago
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.
- usrusr 3y ago
  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.
  - amadeuspagel 3y ago
    There's no common law tradition in germany. Courts are not required to follow precedents.[1] [1]: https://en.wikipedia.org/wiki/Law_of_Germany#Comparative_law https://en.wikipedia.org/wiki/Law_of_Germany#Comparative_law
    - mschuster91 3y ago
      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]. [1] https://www.lto.de/recht/nachrichten/n/lg-berlin-geruegt-von-bverfg-verstoss-prozessuale-waffengleichheit-bild-boris-becker/ https://www.lto.de/recht/nachrichten/n/lg-berlin-geruegt-von... [2] https://www.lawblog.de/archives/2016/05/18/das-hamburger-monopol/ https://www.lawblog.de/archives/2016/05/18/das-hamburger-mon...
temp12192021 3y ago
Civil Law vs Common Law?
amadeuspagel 3y ago
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.
lakomen 3y ago
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.
- LeanderK 3y ago
  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. Also a weird statement to make
  - mardifoufs 3y ago
    I think he was specifically talking about the Hamburg court w.r.t siding with evil corporations.

kioleanu 3y ago

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

medo-bear 3y ago
Are you American?
- kioleanu 3y ago
  I am not, why?
  - medo-bear 3y ago
    Because you bothered to take someone to court over something like that. Im not saying its not a shit go by the seller (it is!) but why bother
    - flumpcakes 3y ago
      Because it is thousands of euros lost by fraud?
      - usrusr 3y ago
        Taking a bit longer than you thought is many things, but it's not fraud.
        gwd 3y ago
        The person said: > 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.)
        kioleanu 3y ago
        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.
deleted 3y ago
[deleted]
calmoo 3y ago
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?
- rendaw 3y ago
  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"
  - dustypotato 3y ago
    Circular reasoning?
- chironjit 3y ago
  Living in germany for a year now, and holy cow how Germans backwards rationalise so many things this way. Like wtf, how can the powerhouse of Europe be so thick?

troad 3y ago

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.

usrusr 3y ago
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.
- amadeuspagel 3y ago
  There's no common law tradition in germany. Courts are not required to follow precedents.[1] [1]: https://en.wikipedia.org/wiki/Law_of_Germany#Comparative_law https://en.wikipedia.org/wiki/Law_of_Germany#Comparative_law
  - mschuster91 3y ago
    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]. [1] https://www.lto.de/recht/nachrichten/n/lg-berlin-geruegt-von-bverfg-verstoss-prozessuale-waffengleichheit-bild-boris-becker/ https://www.lto.de/recht/nachrichten/n/lg-berlin-geruegt-von... [2] https://www.lawblog.de/archives/2016/05/18/das-hamburger-monopol/ https://www.lawblog.de/archives/2016/05/18/das-hamburger-mon...

temp12192021 3y ago

Civil Law vs Common Law?

amadeuspagel 3y ago

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.

lakomen 3y ago

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.

LeanderK 3y ago
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. Also a weird statement to make
- mardifoufs 3y ago
  I think he was specifically talking about the Hamburg court w.r.t siding with evil corporations.