LRC Swiss Civil Code

ONE HUNDRED YEARS OF THE SWISS CIVIL CODE ARE THERE ANY LESSONS FOR IRELAND?

LAW REFORM COMMISSION ANNUAL CONFERENCE

RADISSON BLU HOTEL*

DECEMBER 11, 2012

1. Perhaps some twenty five years or so or more after I had a conversation with some German Erasmus law students who had just concluded the standard Freshman course on the law of torts. The comment of one of them - “Sehr unsystematisch” (“very unsystematic”) - struck a cord with me. Of course, from their perspective, this was an entirely understandable and predictable response. In their mind they had encountered a mass of chaotic judicial decisions (many of them either bewilderingly long or unreported); almost no legislative guidance or intervention (I suspected that many of them wondered what the Oireachtas actually did) and no underlying general principles enunciated by a legislator anywhere in sight.

2. Yet not everyone is an admirer of the German Buergerlichesgesetzbuch (“BGB”), the German Civil Code which came into force in January 1900. The most general criticism is that it is considered “very abstract, very technical and too steeped in the Roman juridical mode”1. The BGB is

1 Foster, German Law and Legal System (Blackstone, 1993) at 193. 2

thus very much influenced by the Justinian pandectists, who as the original Greek words convey, envisaged an all encompassing code to treat of all private law issues. Yet the very universality of the BGB with its austere conceptualism makes it unsuitable as a model for a quintessentially common law jurisdiction such as Ireland.

3. Yet those who favour codification need not be completely disappointed or down heartened. The experience of federal codification and the re-statements in the US shows that some measure of codification within a common law system is eminently possible. I use the words “some measure” advisedly, because what has really happened in the US since the first publication of the Revised Statutes in 1874 under President Grant is a form of classification, consolidation and re-statement of the statutory law, much as the Law Reform Commission itself recommended in its Classified List of Legislation in Ireland2. Yet many civilian jurists would, however, regard the United States Code as something of a misnomer. It is true that the USC has some of the features of a code in that the statutory law is systematically revised and re-stated in an organised system, with Titles for Crime, Commercial Law, Patents and so forth corresponding roughly to the various Parts of a civilian- style code. But it must also be recalled that, generally speaking, the USC does not cover large parts of private law, domicile, tort and contract being matters of State (and not Federal) law. Of course, most civilian jurists would – probably correctly – insist

2 LRC CP62-2010. 3

that a proper code must address basic principles of tort and contract and the law of persons.

4. The greater objection, however, would come from the fact that the USC is still really “only” a systematic collection of diverse statutes enacted with a common law regime in mind. Specifically, the USC does not – with few exceptions – attempt the drafting style and principles-based conceptions of the continental codes. This is where the Swiss experience is so valuable. The publication of the Swiss Civil Code in 19073 and its entry into force in 1912 caused something of a sensation in continental European legal circles:-

“Many lawyers abroad admired the Code and many expressed them selves in ecstatic tones; in Germany, indeed, voices were raised in f avour of the immediate repeal of the BGB and its replacement by t he Swiss Civil Code. In fact, the admirers of the ZGB necessarily i ncluded all those who found the language and technique of the Ger man code too complex, its structure too sophisticated and its conce ptualism too extreme. In Switzerland all these defects had been avo ided. The new Code was drafted in a popular and clear language, h ad an easily comprehended open structure and...made its statutory r ules deliberately incomplete so that often it only sketched in an are a within which the judge had to operate, using the standards of wha t was appropriate and reasonable and equitable.”4

3 Zivilgesetzbuch (“ZGB”). 4 Zweigert and Koetz, An Introduction to Comparative Law (Oxford, 1992) at 177-178. 4

5. The principal draftsman and chief protagonist of the code, Euge n Huber, had, moreover, championed a particular linguistic style of drafti ng:-

“the code must speak in popular ideas. The man of reason who has thought about his times and their needs should have the feeling, as he reads it, that the statute speaks to him from the heart...Its provisi ons must mean something to the educated layman, even if they will always mean more to the specialist.”5

6. Huber thus championed a style which not only avoided the tech nical phraseology and complex conceptualism of the BGB, but rather em ployed a vivid and direct linguistic method, often deliberately choosing h omely and picturesque expressions.6 Thus, Article 687(2) provides:- “ If a landowner tolerates branches overhanging cultivated or developed land, he or she is entitled to the fruit that grows on them.”

Or Article 689(1):

“ Every landowner is obliged to receive the waters flowing naturally from a higher-lying parcel of land, such as rain water, melting snow and water from unchannelled springs.”

7. One but rarely finds primary legal texts with such a descriptive and poetic feel: they evoke the delicious sense and feel of the high Alps 5 Huber, Schweizerisches Zivilgesetzbuch: Erlaeuterungen zum Vorentwurf (Zuerich, 1902) at para. 2.12. 6 The entire Code abounds with examples of this nature, e.g., Article 161(2)(“the wife stands by the husband in word and deed”)(the modern version of this clause provides that spouses “owe each other loyalty and support”), Article 781 (easements over land may be created by a servitude for a special use “such as for target practice or passage on foot or by vehicle”). 5 in early summer, as the snow melts and fast-running rivers roar in the gorges below.

8. While the Land and Conveyancing Law Reform Act 2009 was a magnificent achievement – not least for its repeal of the wretched Prescription Act 1832, surely the worst drafted statute ever to find its way on to the statute book – not even its greatest admirers will contend for its admission into some anthology of legal prose. Witness thus s. 49(2) of the 2009 Act dealing with the roughly analogous position of the dominant and servient owners of land:-

“(2) Subject to subsections (3) to (6), any freehold covenant

which imposes in respect of servient land an obligation to do

or to refrain from doing any act or thing is enforceable-

(a) by-

(i) the dominant owner for the time being, or

(ii) a person who has ceased to be that owner but

only in respect of any breach of covenant

occurring during the period when that person

was such owner,

(b) against-

(i) the servient owner for the time being in respect

of any breach of covenant by that owner or

which occurred before and continued 6

unremedied after that person became the

servient owner, or

(ii) a person who has ceased to be that owner, but

only in respect of a breach of covenant which

occurred during the period when that person

was such owner.”

9. It is true that this is clear and cogent (and, of course, a vast improvement on what went before), yet, while it is perhaps a matter of personal taste, sadly for me at least, the 2009 Act cannot evoke a sense of the Golden Vale in early summer.

10. The ZGB thus exhibits three key drafting characteristics which Huber had championed and which are the antithesis of the earlier BGB. T he language was clear and direct and comprehensible to the lay person; th e structure was comprehensible and open and, critically, the principles es poused were left deliberately incomplete, to be filled in where appropriate by judicial decision. This, of course, was anathema to the Pandectists. As the great judge and jurist, Ernst Rabel, tartly put it:-

“At the point where the greatest difficulties begin, the BGB settles down to the task with particular satisfaction and the ZGB gives up completely.”7

11. While the Code is revised yearly, with amendments typically co ming into force on the 1st January of each year, the Code’s elegance and simplicity of style still bears ample testimony to Huber’s splendid talents

7 “Streifgange im schweizerischen Zivilgesetzbuch” RheinZ (1910) 308, 320. 7

100 years later. While it is true that, unlike the BGB, the ZGB does not c ontain an Allgemeiner Teil (General Part) in the strict sense of the term, th ere is nonetheless a general Introduction which establishes some general principles which have become justly famous. Thus, Article 1(2) and Artic le 1(3) provide that:-

“(2) In the absence of a provision [of the Code], the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule which it woul d make as legislator. (3) In so doing, the court shall follow established doctrine and case law.”

12. Article 2 deals with the fundamental principles of good faith (“T reu und Glauben”) and abuse of rights:-

“(1) Every person must act in good faith in the exercise of his or her rights and in the performance of his or her obligations. (2) The manifest abuse of a right is not protected by law.”

13. Article 3(2) then states that:-

“No person shall invoke the presumption of good faith if he or she has failed to exercise the diligence required by the circumstances.”

14. There are shades here of the maxim he who seeks equity must d o equity. Article 4 then provides:- 8

“Where the law confers discretion on the court or makes reference t o an assessment of the circumstances or to good cause, the court m ust reach its decision in accordance with the principles of justice an d equity.”

15. Part One then deals with the Law of Persons. This part thus esta blishes rules regarding capacity and domicile and civil status, but also deals with matters which we would consider akin to defamation and interference with constitutional rights.8 It also deals with the rules relating to the decisions taken by legal persons, with much of this material akin to matters governed here by the Companies Act 1963. Part Two deals with Family Law, Part Three with Succession; Part Four with Property and Part Five then deals with the Law of Obligations.

16. One could spend a long time supplying examples of how the Code deals with practical issues and compare and contrast how such issues are dealt in the common law system. Perhaps I may be allowed to give an example of a judgment of my own, Izmailovic v. Garda Commissioner9. Here the Gardaí had filed last minute objections with the Civil Registrar to the marriage of a Lithuanian national to an Egyptian. They contended that the proposed marriage was a sham designed to

8 Thus, for example, Article 28b(1) provides:

“To obtain protection from violence, threats or harassment the applicant may request the court in particular to order the offending party to refrain from:

1. approaching the applicant or from entering a defined area around the applicant’s dwelling;

2. frequenting specified locations, notably particular streets, squares or districts;

3. from making contact with the applicant, especially by telephone, in writing or electronically, or from harassing the applicant in any other way.”

Cf. Sullivan v. Boylan [2012] IEHC 389 where an injunction was granted restraining a debt collector from parking a van outside the alleged debtor’s door or from endeavouring to contact her neighbours to inform them of a claim that she owed money. 9 [2011] IEHC 32, [2011] 2 I.R. 522. 9 circumvent the immigration laws. I held that, based on an earlier Supreme Court decision10, the motives of the couple were irrelevant to the issues of the validity of the marriage. I also held that this was also not a valid ground of objection within the meaning of the Civil Registration Act 2004, since if this was the case “the discarded lover, determined on revenge, could wait for the last moment before coolly lodging a letter of objection with the Registrar just as the first of the wedding guests was scheduled to arrive.” I also suggested that it would be unconstitutional if the effect of the objection process was that the Gardai could in practice obtain a form of injunction restraining the wedding by simply lodging a notice of objection.

17. Of course, I was conscious here that this was a classic instance of where the civilian tradition would suggest a different result from that which might obtain in a common law in that an abuse of rights doctrine is so central in those jurisdictions. Here Article 2(2) of the ZGB would come directly into play, i.e., an instance where the manifest abuse of a right would enjoy no legal protection. In that situation, if the parties got married but had no real intention to life together as husband and wife, but this was simply a charade to circumvent immigration law, in the civilian tradition this might well qualify as an abuse of rights. 18. For good measure, however, the new Article 97Abis of the ZGB provides:-

“(1) The civil registrar shall not consider a request for marriage if the bride or groom clearly has no intention of living together but wishes to circumvent the provisions on the admission and residence of foreign nationals.

10 H v. S, Supreme Court, 3rd April 1992. 10

(2) The civil registrar shall grant a hearing to the engaged couple and may obtain information from other authorities or third parties.”

19. This provision is contained in Chapter 3 of Book 2. In typically Swiss style, the civil registrar is required to engage in preparatory work in advance of the marriage, so that any possible objection on this ground is dealt with well in advance, unlike the last-minute objection which was at issue in Izmailovic. The Code, moreover, gives the couple the right to be heard on the question of their intentions, thus recognising the issues of procedural fairness which also surfaced in Izmailovic.

Can we learn anything from the Code?

20. The Code is like a beautiful legal painting, but can it be transpla nted to the rather delicate climate of the common law without damage to t he frame? More to the point, apart from pausing to admire the exquisite s kill of Huber’s conception and drafting, are there any lessons for contemp orary Ireland? I suggest that there are.

21. First, if any form of explicit continental-style codification were ever to be adopted, the ZGB should serve as a model. The open textured character of the ZGB, the deliberate repudiation of the German Pandectist model, Huber’s preference for simplicity and elegance of style and, above all, his recognition of the limits of the capacity of the legislator to anticipate every sort of situation all make the ZGB the most suitable template. With regard to the open-textured nature of the Code, Huber had made this very point in a report to the Swiss Federal Council in May 1904:- 11

“ We do not believe it would be advantageous if the legislature deprived the courts of all discretion in recognising this point. The interpretation may vary, during the existence of the statute, in accordance with the opportunities of the text and the state of public conscience and it would be a mistake to draw a statute in such a way as to make it impossible for the courts to follow the development of public opinion without a change of the text….When the legislator intends to make a provision absolutely mandatory, he should say so. Where he fails to say so, the question will be decided in accordance with the spirit of the times.”

22. This is very much in the spirit of a living statute. There are shades of this in the Interpretation Act 2005. Indeed, the Supreme Court recently adopted this approach in McAuley v. Governor of Mountjoy Prison11 when Hardiman J., dealing with the issue of implied powers, quoted with approval from Dodd, Statutory Interpretation in Ireland12:-

“ Legislation is not expected to cater for every single matter or every single scenario and ascertaining the intention of the legislature is an essential aspect of interpretation.”

23. Second, the organisational structure of the Code is hugely preferable to our own, chaotic model. This is something which we have tolerated for far too long, but when two of our greatest environmental lawyers, Yvonne Scannell and Aine Ryall, both

11 [2012] IESC 57. 12 Dublin, 2008. 12 separately protest that, for example, our planning and environmental law is inaccessible and impenetrable, then something, surely, is very wrong. While it is true that, for example, the Planning and Development Act 2000 consolidated much of what went before and the new re-statements published under the aegis of the Attorney General are of considerable assistance, yet no one can take pride in the multiplicity of diverse amendments and statutory instruments. 24. One of the great advantages of the Code is that it has seemed into popular consciousness, so that it may be consulted with advantage by laypeople, just as Huber intended. This is, it is true, no firm substitute for legal advice, but at least laypeople can glean some even basic understanding of where they stand in relation to general matters of concern to them. What statute could the layperson here consult to ascertain something regarding the law of negligence or nuisance, even though these are everyday legal problems of the kind which often confront the general public.

25. Third, one can only admire the elegance of the concise style. It aims at stating clear and precise rules or principles. As we have noted, Huber was very clear on this distinction. Where the legislator wanted a clear rule to govern the situation – as with time limits, amounts, basic jurisdiction and so forth – this should be clearly stated. In other cases, the legislator should enunciate a general principle – such as a standard of care – which is then drafted in open-textured format.

26. Fourth, the Code has an organisational quality. The Commission’s Classified List attempts a classification of existing legislation in 36 headings. That, of course, is an excellent start. But what we should really be attempting is the drafting of a general statute 13

which compartmentalises and segments existing legislation which might otherwise correspond to a continental private law code: examples here include the Civil Liability Acts, the Companies Acts, legislation relating to the citizenship, domicile and capacity13; family law and succession. If such a law could be re-enacted and supplemented each year, coming into force on the 1st January, we would probably do much to avoid the impenetrability of which Professor Scannell and Dr. Ryall have complained.

27. Fifth, such a code could ultimately re-state general principles in Huberian language that would be accessible and understood by all. An example of this style may be found, for example, in s. 90 of the Succession Act 1965:- “Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.” 28. Of course, it may be objected that even a clause of this kind – which, incidentally, is one of the very rare instances where the Oireachtas has expressly borrowed from a continental civil code14 - can do no more than state general principles which will require judicial application and in turn a body of case-law will build up. But that is of the essence of any legal system, bearing in mind that no system of legislation can anticipate every contingency. 29. This brings us to the final justification for the move towards a fully fledged code, namely, that of democratic legitimacy. Save for the fact that generations of lawyers have grown up knowing nothing

13 Including measures such as the Irish Nationality and Citizenship Acts 1956-2004, Domicile and Recognition of Foreign Divorces Act 1986 and the Age of Majority Act 1985. 14 It was borrowed from Article 2084 of the BGB: see Brady, “The ‘Favor Testamenti’ in Irish Law” (1980) 15 Irish Jurist 1, 12. 14

else, it is not odd that key features of our law of torts rest on decisions of the House of Lords in 1866 (Rylands v. Fletcher) and 1932 (Donoghue v. Stevenson)? Is it not even odder that this law is not the subject of a general legislative re-statement? Conclusions

30. Perhaps it is too much at this stage of our legal development to expect us to move quickly towards a fully fledged continental style code. Yet I am convinced that our legal system would benefit enormously from a spring clean and that there is no reason at all why we could not move towards an embryonic form of code with the type of legislative classification which the Commission has suggested. This, plus the more frequent use of the re-statements, could bring us further down a road which would lead to a more systematic statute book, less impenetrable legislation and greater democratic accountability. Even if we will never match the drafting elegance and Huber’s juristic inventiveness as witnessed with the ZGB, this will still represent considerable progress.

* Gerard Hogan, judge of the High Court