INTRODUCTION

The European Union incorporated the responsible lending programme into legislation in an attempt to tackle the high levels of indebtedness resulting from the expansion in access to credit and new credit products and lending practices. It did so first, and rather timidly, into Directive 2008/48/EC of 23 April 2008 on Consumer Credit, and then more forcefully into Directive 2014/17/EC of 28 February 2014 on Credit Agreements for Consumers Relating to Residential Immovable Property. The aim was to ensure that professional lenders took consumer needs and interests into account throughout the entire duration of the credit agreement, which entailed both the need to enable consumers to make maximum savings (e.g. via early repayment without penalty) and to prevent borrowers from succumbing to the temptation to commit themselves to risky loan agreements. The expression ‘responsible lending’ is generally associated with good practices in the granting of credit (unfair practices in credit card approval and subprime mortgages would be clear examples of irresponsible practices to be tackled) and with the measures proposed to prevent over-indebtedness: e.g. transparency in the marketing of loans, creditworthiness assessment and the granting of a right of withdrawal. However, it also covers creditors’ obligation to show reasonable forbearance when claiming repayment, for example, by limiting default interest, preventing the abuse of acceleration clauses and seeking to avoid foreclosure actions being carried out before attempts have been made to negotiate with debtors.

INTRODUCTION AND OVERALL THEME

European Contract Law has been affected by mega-developments in society of the last decade in multiple ways. These range from the digital revolution that led to a host of EU legislation, both regulation of individual contractual relationships and of markets and platforms, to a similar revolution with respect to sustainability, which, again with EU legislation as the dominant layer, has led deep into contract and adjoining company and capital markets law as well. Many authors consider these two as the mega-trends of today's law of the enterprise – with the particular characteristic that regulation, company law and banking law are intertwined in particularly dense ways with contract law in these new mega-topics. Much less central in the apprehension of a larger contract law public in Europe is a development that had been triggered by the first mega-crisis in Europe in this decade, the Global Financial Crisis (followed by a whole series of mega-crises in Europe). This development, however, can well be seen as being just as important and indeed pointing in a similar direction. Moreover, it may even predate the other developments named. It may well be that the European Banking Union – created as a response to the global financial crisis (in 2008) and to the Euro sovereign debt crisis (in 2010) – constitutes the first instance of a decidedly common (public) good oriented reform. In other words: this may well be the first instance of a public good trend in the areas where autonomous party decisions typically reigned supreme, a trend that can be seen as a fundamentally new ‘green box approach’.m

Chapter 7 presents German private law with special consideration given to the Civil Code. The coverage includes the history of the Code, its structure and contents, and its conceptual and methodological style. The way in which the German Civil Code differs from the French Code Civil is also discussed. The function and practice of the Civil Code are demonstrated through a suretyship case, which places the Akzessorietätsgrundsatz at the center of the dispute.

Chapter 9 considers German administrative law as part of the public law framework. The wide range of fields covered by administrative law are discussed. Administrative law disputes involving Muslim halal slaughter are used to present the administrative law framework and to consider the influence of the Islamic Law tradition in the German legal culture.

Chapter 1 introduces students to the various approaches used to pursue comparative legal studies. It especially presents the orthodox “legal families“ approach to macro-comparative law. The chapter then considers several critiques of that tradition. H. Patrick Glenn challenges the concept of “legal families“ and suggests a “legal traditions” framework to replace it. The chapter then presents the social-contextual approach to comparative law as promoted by Legrand. Finally, the chapter urges students to recognize the ethical implications of comparative law through Frankenberg’s concepts of “distancing” and “differencing.”

Chapter 5 is the second of three chapters laying a basic foundation in German law and politics. The chapter presents the key institutions of German politics and law. It starts with a presentation of the German states and federalism. It then focuses on the strength of the chancellor in governance, including law-making and executive power. The chapter then presents the German judicial system, presenting the decentralized and specialized nature of the German judicial framework.

Chapter 12 considers the Europeanization of German law, resulting from the integration of Germany into the European Union and its project of harmonization of law. Basic devices for this process are explained, such as the direct effect and supremacy of European law. The tension this has created in German private law is demonstrated with a case study of the European antidiscrimination directive, which Germany reluctantly implemented. The case study presents a dispute under the German domestic regime that was eventually enacted. That dispute involved discrimination in the employment context on the basis of the applicant’s background growing up in East Germany. The tensions between the Europeanization of law and German constitutional law are also discussed.

Chapter 4 is the first of three chapters laying a basic foundation in German law and politics. The chapter focuses on German legal history, including a deep history dating from the Roman encounters with the German barbarians up to the codification movement in the nineteenth century. The deep history shows how Germanic customary law, Roman Law, and Canon Law mixed to form modern German law. The chapter then shows how the process of development proceeded differently for private law (leading to the great codification of private law) and public law (with a tumultuous process of constitutionalization).

Chapter 8 presents German constitutionalism as an example of the rising relevance of the Common Law tradition in the German legal culture. The historical development of constitutionalism is discussed, focusing on the postwar Grundgesetz (Basic Law), which emphasizes human dignity and the rule of law as part of the objective order of values it establishes. The doctrine of Drittwirkung (horizontal effect) is discussed using a private law suretyship case (similar to the case presented in Chapter 7) to show how the constitutional order now impacts private law.

Chapter 2 presents the Civil Law tradition, which has been a predominant influence in the German legal culture. Grosswald Curran’s excerpt juxtaposes the Civil Law’s enlightenment characteristics with the Common Law’s romantic characteristics. The systematic, coherent, codified qualities of the Civil Law fuel the ambition for a scientifically objective legal framework. This, in turn, leads to a smaller role for judges and a larger role for legal scholars.

Chapter 11 presents the central elements of German procedural law before focusing more specifically on private law procedure and criminal law procedure. German procedural law is widely treated as an example of inquisitorial justice. The chapter uses articles from renowned comparative law scholar John Langbein to consider the unique features of German procedural law in the private and criminal law setting. The increasingly adversarial character of private law procedure is discussed using the example of class action suits. The increasing adversarial character of criminal law procedure is discussed using the example of plea bargains.

Chapter 13 is a closing epilogue that summarizes the book’s thesis, namely, that the German legal system is the site of encounters amongst a variety of legal traditions. To animate and illustrate that argument a final time, an article discussing the Common Law and Civil Law characteristics of German constitutional law is presented for discussion.

Chapter 10 presents German criminal law focusing on the Schuldprinzip (principle of blameworthiness), which is part of the three-step criminal law analysis in Germany (including elements of the crimes, illegality, and blameworthiness). The function and practice of German criminal law is demonstrated in two case studies, including the Frankfurt Police Torture Case and the fictional case of a pilot who shot down a plane that had been hijacked by terrorists.