Freedom of Contract in the 19th Century

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LEGAL CULTURE Review Essay – Freedom of Contract in the 19th Century: Mythology and the Silence of the Sources – Sibylle Hofer’s Freiheit ohne Grenzen? Privatrechtstheoretische Diskussionen im 19. Jahrhundert Sibylle Hofer, Freiheit ohne Grenzen? privatrechtstheoretische Diskussionen im 19. Jahrhundert, Mohr (Siebeck): Tübingen 2001, 313 pp., Jus Publicum Vol. 53, ISBN 316-147576-3

By Andreas Abegg and Annemarie Thatcher*

“Qui dit contractuel, dit juste”.1 This oft-cited quote by Fouillée in 1880 tempts people today to understand the early economic liberalism of the 19th Century as a system of unlimited liberal freedom, which claimed that fairness would automatically result from a formal law of obligations based especially on formal equality.2 In her legal history postdoctoral Habilitation-study Freiheit ohne Grenzen? (Unlimited Freedom?), Sibylle Hofer is prompted to examine the private law theory discussions of the 19th Century by the currently widely held view3 that in the 19th Century a theory of private law premised on unlimited individual freedom dominated. After studying a broad range of sources she comes to the conclusion that despite a large absence of discourse on contractual freedom this perception of “unlimited freedom” cannot be confirmed, instead this is more of a myth. In the 19th Century, the concept of private law under a paradigm of unlimited contractual freedom was *

Annemarie Thatcher, LL.M. (University of Frankfurt), LL.B. (University of Kent at Canterbury), e-mail: annemarie_thatcher@yahoo.co.uk. Andreas Abegg, LL.M. (University of Frankfurt), LL.B. (University of Freiburg/Switzerland). Mr. Abegg has written his doctoral thesis on “Die zwingenden Inhaltsnormen des Schuldvertragsrechts” (compulsory contract law) at the University of Freiburg/Switzerland (to be published in January 2004). E-mail: aabegg@dplanet.ch. Fouillée, La science sociale contemporaine (1880), p. 410.

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2 Cf. the particularly concise discussion in English legal development in Atiyah, The Rise and Fall of Freedom of Contract (1979), p. 765 ff. 3 Hofer here explicitly criticises for example Kübler, Wieacker, E. Schmidt and Spellenberg, see Hofer, Freiheit ohne Grenzen?: privatrechtstheoretische Diskussionen im 19. Jahrhundert (2001), p. 1.

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hardly ever supported. Rather, the myth of unlimited contractual freedom was constructed to be better able to attack the liberal conception in the course of the German Civil Code codification.4 To confirm this basic hypothesis, in the first part of her dissertation Hofer examines the 19th Century debate on the principles of private law, while in the second part she traces private autonomy in the individual building-blocks of property and obligations law such as will, trust or reliance and autonomy.5 In total she wants to uncover the discourse on the principle of “freedom” and the limits that already existed in early economic liberalism.6 This would prove that “the private law conception at that time – apart from an insignificantly small number of exceptions – was in no way dominated by the idea of generally unlimited freedom.”7 During her examinations of the 19th Century discourse on principles, Hofer first comes to the conclusion that the conception of a general freedom was hardly ever the topic of a legal discourse in the 1830s and 1840s. The old German law was still firmly caught up in structures based on class status, rendering it hardly possible to characterize it as free. Even when, in rare cases like Beseler,8 a notion of individual freedom could be discerned, the emphasis was placed on the limits to this freedom.9 This finding can be confirmed by Bürge. He examined in detail the developments in private law in 19th Century France with a view to the historical economic context. The paradigm of private autonomy and the individualistic conception of the economic constitution could only assert themselves relatively late in the...
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