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Kaske, Tina --- "The co-existence of common law systems and civil law systems in modern society: a comparison between the legal systems of New Zealand and Germany" [2002] CanterLawRw 6; (2002) 8 Canterbury Law Review 395


Tina Kaske[*]

I. Introduction

Common law systems and civil law systems are the two main systems governing societies throughout the world. Both systems have different roots. The common law developed in England as a system where the body of law derives from judicial decisions, whereas the civil law system is based on Roman law and, therefore, on statutes. Over the centuries, both systems have proved themselves as a means of governing their respective societies effectively and properly. However, modern technology has changed society. New means of communication, such as fax, email, or communication over the Internet, have made it possible to exchange legal declarations in seconds. Moreover, this fast communication can take place in different parts of the world. For instance, a business in Germany can make an offer by email to a business situated in New Zealand, which might be accepted immediately so that a contract comes into existence within an hour. Therefore, with the Internet providing a global network, the meaning of national borders has lessened, and sometimes even lost its importance completely. Thus, the question arises as to whether and how the common law system and the civil law system have developed their mechanisms in dealing with legal conflicts in modern society. Furthermore, whereas in former times the common law and civil law system had no contact points at all, contact points are a necessary consequence of modern (instantaneous) communication. As a consequence, a merchant situated in New Zealand and contracting with a merchant in Germany may wonder whether specific problems are likely to occur because of the different legal systems in New Zealand, which is governed by a common law system, and Germany, which is governed by a civil law system. In the legal profession too, the question may arise as to whether a unified legal system governing all countries of the world alike may improve the situation of merchants and consumers who are acting globally. The different mechanisms of dealing with legal problems may lead to complications, which cannot be resolved even by International Private Law.[1]

Therefore, this paper will examine the issue of how the different legal systems rule modern society. It will be interesting to see whether the systems have developed away from their roots, and whether they do govern their societies very differently. In this context, the New Zealand legal system will be considered as an example of a common law system and the German legal system as an example of a civil law system. Furthermore, a comparison of the systems will show their similarities and differences, and will examine whether and to what extent the systems differ from each other. The smaller the difference between the systems, the less is the probability of conflict between them. Moreover, the issue of whether a harmonious co-existence of both systems is possible will be considered, using the legal system of Québec as an example. This system consists of both common law and civil law parts. In this context, the question arises as to whether a unified legal system governing all societies in the world is desirable. Finally, the outlook for future management of the challenges of modern society will be considered.

II. New Zealand


New Zealand does not have a written constitution as opposed to the United States of America (USA) or Germany. Nevertheless, New Zealand does have a constitutional framework, which comprises various sources.[2] Thus, the Bill of Rights Act 1688 was inherited by New Zealand from England.[3] It establishes the supremacy of Parliament as an important pillar of the New Zealand legal system. Therefore, parliamentary statutes are the highest source of law and prevail over common law, as well as over all other sources of law.[4] In Fitzgerald vMuldoon[5] the court made clearthatthe executive cannot suspend or dispense with laws without parliamentary consent. This ruling was derived from the supremacy of Parliament as stated in section 1 of the Bill of Rights Act 1688. Moreover, the Constitution Act 1986, the New Zealand Bill of Rights Act 1990, constitutional conventions,[6] the Rule of Law, the Letters Patent 1983 and the Treaty of Waitangi are other sources of the constitutional framework of New Zealand.[7] Accordingly, because this kind of constitution does not comprise just one written document, it is often referred to as an unwritten constitution.[8]

Moreover, an important issue regarding this constitution is that it lacks any entrenched law. An entrenched constitution provides specially prescribed procedures for constitutional amendment, such as a two-thirds majority vote.[9] In New Zealand, only section 268 of the Electoral Act 1993 prescribes special procedures for altering parts of that Act itself.[10]

However, this provision is only singly entrenched, because it can be altered without having regard to special procedures.[11] No other superior law states the institutions of the framework of government or protects the civil rights of the individual. In 1985, in Geoffrey Palmer's White Paper, a Bill of Rights was proposed which contained fundamental individual rights, the incorporation of the Treaty of Waitangi and the authorisation of judicial invalidation of statutes enacted in contravention of the Bill. Moreover, the paper suggested that the proposed Bill of Rights should be entrenched law.[12] However, this Bill did not pass the House of Representatives. Rather, a 'watered down version of the White Paper's Bill'[13] was passed by Parliament. The New Zealand Bill of Rights Act 1990 is not entrenched and has not included the Treaty of Waitangi, but does state the rights of the individual in contrast to the power of the Executive. Because the Bill is not supreme law, it can be amended or repealed by a simple majority vote of Parliament. A consequence of this status as a 'normal' law is that in case of an inconsistency between the Bill of Rights Act 1990 and another statute, section 4 of the Bill of Rights Act 1990 states that no Act can be held invalid only because of this inconsistency. Rather, the general rule has to be applied that the later provision prevails over the earlier one, which can also be the Bill of Rights Act 1990.[14] All in all, New Zealand's constitution establishes parliamentary supremacy as the leading principle. Accordingly, statutory law is the supreme law of the country.[15]


The authoritative source of law in New Zealand is legislation. The courts cannot declare statutes void, and statutes prevail over all other sources of law. Only Parliament has the power to enact, to amend, or to repeal laws. This position is the result of parliamentary supremacy.[16] Furthermore, as a consequence of the common law system, which New Zealand inherited from England, statutes do not try to cover a whole area of law such as a code for the whole civil law. Rather, statutes are enacted for a specific purpose, such as to govern the area of consumer sales regarding guarantees in the Consumer Guarantees Act 1993 or in other areas whenever it is considered necessary.[17] This leads to a range of different and specialised statutes, and to the supplementation of case law by statutes. However, the focus in this part of this paper is on statutes directly enacted by the New Zealand Parliament in contrast to imperial laws inherited from England or delegated laws, which enable Executive bodies to make rules. In general, statutes provide legal certainty in their area of application. Nevertheless, cases appear in which questions about the meaning of words arise because the words used in a statute are, for instance, vague or ambiguous. Therefore, the courts have to interpret the wording of the statutes to identify the intention of Parliament. Moreover, the question of filling gaps in legislation arises.

The canons of interpretation evolved in New Zealand and the whole common law system comprised three different approaches in determining the intention of the legislature. Firstly, the 'Literal Rule' has to be considered. It states that words should be given their natural and ordinary meaning.[18] As long as a clear meaning emerging from the text itself can be applied, no further interpretation has to be considered.[19] Secondly, the 'Golden Rule' requires that if the literal approach leads to absurdity, ambiguity or contradiction, the words must be given a different meaning.[20] Thirdly, the 'Purposive Approach' must be considered, as stated in the 'Mischief Rule'.[21] This purposive approach attempts to give effect to Parliament's intention as it relates to the particular statute in question. These rules are of value, because they show the scheme one has to follow in interpreting statutes. Therefore, the 'Literal Rule' is the first approach a court has to consider. The courts can only give words an extended or restrained meaning if a literal reading would lead to absurdity, ambiguity, or contradiction with regard to the purpose of the Act.[22] Nevertheless, this set of interpretative rules is often not satisfactory. In such a case, other factors have to be considered in accordance with the interpretation of statutes.[23] Thus, section 5 of the Interpretation Act 1999 states in subsection 1 that 'the meaning of an enactment must be ascertained from its text and in the light of its purpose'. In subsections 2 and 3, the Act shows the indications which may be considered in ascertaining the meaning of an enactment such as the preamble, table of contents, headings to parts and sections and so on.

The words in an Act are the starting point for statutory interpretation. Therefore, not only the considered words, but also the words surrounding the respective provision, must be taken into account when interpreting a statute. Accordingly, a formulation of a word in a provision has to be interpreted in the light of its surrounding words. For instance, the noscitur a sociis rule states that words must be read in the context of the other words of the section in which they appear.[24] Furthermore, the ejusdem generis rule establishes the principle that if a list of words forms a class and a general word follows that list, the general word has to be interpreted in the light ofthe class.[25] However, not only can the wording ofthe same section be used for evaluating the meaning of a wording, but also the part in which the section is located[26] and the whole scheme of the Act.[27] Moreover, the preamble of an Act, as stated in section 5 (3) of the Interpretation Act 1999, the long title of an Act,[28] as well as the purpose and interpretation sections provide statutory aids for interpreting provisions ofthe respective Act.[29]

Nevertheless, sometimes the wording of an Act is not sufficient for clarifying the meaning of a provision. In these cases, the external legal context of the legislation can provide an aid for interpretation. Therefore, the Act must be interpreted in light of the existing and surrounding legal landscape. Thus, the social and economic circumstances which existed at the time the Act was passed,[30] the current law,[31] as well as the law preceding the Act,[32] and international conventions, can help to clarify the meaning of words. Furthermore, the legislative history such as parliamentary debates (Hansard) or reports of select committees is nowadays a source which can be used in interpreting a provision.[33] Moreover, the New Zealand Bill of Rights Act 1990 is influencing statutory interpretation. In accordance with section 6 of the Bill of Rights Act 1990, 'enactments (shall) be given a meaning that is consistent with the rights and freedoms contained in (the) Bill of Rights (Act 1990)'. Therefore, if a wording is ambiguous, the meaning which is consistent with the Bills of Rights Act 1990 has to be preferred.[34] Nevertheless, as stated above, if a provision is inconsistent with the Bill of Rights Act 1990 and no consistency can be achieved, this provision will prevail in accordance with section 4 of the Bill of Rights Act 1990.[35]

Moreover, the Interpretation Act 1999 has to be considered. It states general principles in statutory interpretation such as the purposive approach in section 5, the need for updating interpretation in section 6, and principles according to expiry and repeal of provisions in sections 17 to 22.[36] Furthermore, the newly implemented section 7 stipulates the presumption against retrospective interpretation of an Act.[37] It also states some general definitions for all Acts in section 29, which apply as long as no special definition in an Act is given.

Sometimes the interpretation process itself is restrained. Thus, presumptions of interpretation, which are generally fundamental values of society existing for a very long time, have to be considered by the courts while interpreting statutes. For instance, consider two key presumptions. Firstly, there is the presumption that liberty of the subject demands that penal statutes must be construed in favour of the individual.[38] The second presumption is against retrospectivity, which holds, in general, that statutes are not intended to have retrospective effect unless a statute stipulates it differently.[39] Other constraints of interpretation are the history of a statute or precedents. Therefore, the kind of interpretation a court gives a section is binding on the courts lower in the hierarchy and persuasive for courts on the same level.[40]

Moreover, a statute can cease to be in force only by termination of Parliament. Therefore, two methods are possible. Firstly, an Act can expire. Thus, itmusthave a 'sunset-clause' which determines the date ofthe expiry, such as in the Milk Act 1988.[41] Secondly, an Act can be repealed; this results in the former Act no longer having any effect. Therefore, a later Act of Parliament can include a section in which the repeal of former Acts is expressly stated.[42] Moreover, a later provision can impliedly repeal an earlier one, if the provisions of two statutes cannot stand with each other and both provisions regulate the same subject-matter.[43] This kind of repeal, in which the court states the repeal in accordance with the purposive approach in interpretation, is often limited by way of stating that the repeal is only effective where inconsistency with the later provision occurs.[44] Another point to consider is the relationship between statute and common law. Nowadays, an influence of statute law on common law can be recognised. For instance, judges are using statutes to fill gaps or 'create' common law rules by way of analogy to statute law.[45] Furthermore, common law has significant influence on statutes. Therefore, fundamental principles of common law such as human rights and freedoms can only be removed by clear language in a statute.[46] In addition, where long established rules of common law were replaced by statutory law, the courts commenced to interpret the statutes in accordance with the former common law and gaps in legislation were filled by reference to the common law, as long as common law was consistent with the statutory scheme.[47] Common law and statutes, which both regulate the same area of law, can even co-exist as alternatives, if Parliament intends so.[48] Parliament's intention is also decisive when the question arises of whether common law revives after a replacing statute is repealed.[49] Therefore, even if the principle of parliamentary supremacy prevails over all other sources of law, it is still influenced by these other sources such as common law.

Customary Law

In former times, custom, as the unwritten law established by long use, was an important source of law. It was, and still is in some cases, acknowledged as law if the custom is universal, reasonable, not contradictory to a statute, observed as of right and in existence since time immemorial.[50] The last requirement is fulfilled when a custom has been in existence since 1189, which was the first year ofthe reign of Richard I.[51] As time passed, customs were acknowledged by judges and turned into common law.[52] Furthermore, many customs were transformed into statutes. Thus, customs only have a minor role as an authoritative source of law in the modern legal system of New Zealand.[53] This minor role results from the fact that many customs are transformed into common law and statutes, as well as from the consideration that customs are subordinate to precedent, because it is never clear if a court will acknowledge the custom as law.[54] However, customs still exist as a source of law in the New Zealand legal system. For instance, the rule of law and constitutional conventions have to be considered.[55] Therefore, the rule of law is a set of principles upon which New Zealand's constitutional system is based.[56] Constitutional conventions, on the other hand, are non-legal rules of political or constitutional nature based on custom and usage.[57] Even though they are not judicially enforceable, they show the relevance of customs in constitutional law. Moreover, customs also exist in commercial law in the form of usages. Usages often occur in large and well-established trades such as the sale of commodities or the construction industry.[58] As long as these customs are clear in their content, reasonable, known to everybody acting in the trade and not to be excluded by the terms of an agreement between the parties, they are deemed to be law.[59] Moreover, the mercantile law, in general, is based upon mercantile customs and usages.[60] Local customs are acknowledged by the courts. These local customs 'displace within its locality the common law',[61] as long as the above-mentioned prerequisites are fulfilled.

Moreover, unique to New Zealand because of its colonisation, Maori customs have to be contemplated. These customs are not to be deemed as law either during the regency of the Maori or today under the modern New Zealand legal system, but they are still alive. They existed for centuries prior to colonisation and the implementation of English law.[62] Nevertheless, these customs were not recognised by Parliament or the judiciary for a long time.[63] Nowadays, some Maori customs are acknowledged by statutes.[64] For instance, Maori fishing rights are preserved by the Fisheries Act 1983, which means these customary rights prevail over the statutory regulations.[65] Furthermore, the court stated that Parliament will expressly abrogate customary rights if it wants to have them abolished.[66] Nevertheless, some Maori customary law[67] is not in accordance with New Zealand law and a court can, therefore, refuse to recognise it.[68]

Common Law

In New Zealand, an important source of law is common law. In this discussion, common law is defined as the unwritten body of law derived from judicial decisions, rather than from statutes and from local customs.[69] Therefore, common law is 'judge-made' by applying legal principles developed in past cases to similar situations, and by creating precedents by cases or through interpretation of statutes in accordance with the intention of Parliament.[70]

In discussing common law as a source of law, the role of equity must also be considered. The origins of common law are found in the English common law system, as New Zealand inherited this system from England as its former colony.[71] The common law system developed as a powerful centralised system of justice of the English kings in the twelfth and later centuries, when the royal justices created and administered general rules common to the whole of England in the Court of Exchequer, the Court of Common Pleas and the Court of King's Bench.[72] Subsequently, equity was developed to grant fairness in areas where the common law failed to provide a just solution to a dispute.[73] The Court of Chancery administered equity and, therefore, developed a new system of equitable procedures, rules and remedies.[74] Thus, common law and equity acted as two different systems with their own courts and rules, until the Judicature Act 1873 brought them together. Accordingly, today they are administered in the same courts.[75] However, the Act also stated that in cases of a conflict between common law and equity, the rules of equity prevail.[76] In New Zealand, on the other hand, the two systems were never governed in different courts. Furthermore, the Court of Appeal decided and, therefore, clarified the position that the origins of rights in equity or common law are irrelevant to a case, and that, accordingly, the principles of both systems can be equally applied to it.[77] All in all, the way in which both systems work is indistinguishable, because both systems comprise unwritten law which has to be developed and applied by the courts. In this paper, no distinction will be made between common law and equity. As stated above, common law is unwritten, judge-made law. Nevertheless, the process of 'creating law' follows distinctive rules and procedures, of which the most important ones are the principles of finding the ratio decidendi (reason for deciding) of a case and the doctrine of stare decisis (to stand by the decision). Furthermore, common law is declaratory in nature, which makes an accurate law-reporting system essential for providing judges with the knowledge of how other courts have decided similar cases.[78]

First, the process of establishing rules and applying them to later cases is ruled by the principles regarding the ratio decidendi of a case. The ratio decidendi of a case is 'the principle which is of application to subsequent cases and states the law for all parties'.[79] Thus, it is the rule of law for which a decided case is an authority in the legal system. Referring to the establishing of rules of law, it is stated that judges do not 'create' law, rather they declare what the law is.[80] Nevertheless, it is almost impossible to delimit the declaration of existing law from the creation of law. Moreover, rules of law are often not explicitly expressed in a judgment, which is why the ascertaining of the ratio decidendi of a case has to be determined by the later court. This subsequent court has to consider the material facts and the proposition of law based on these facts before applying the case to the new situation.[81] The ratio is, therefore, the legal principle inferred from the facts and the decision thereon. There is not one way as to how the respective legal principle can be determined. Rather, different ways are suggested. The most common one was developed by Goodhart who stated that a later court has to 'take into account the facts treated by the (earlier) judge as material and his decision based on them'.[82] Moreover, a case can have more than one ratio, and often the court states propositions of law which are not necessary to the decision (obiter dicta) but which may be of persuasive value in a later case.[83] Therefore, the later court also has to differentiate between obiter dicta and the ratio(nes) of the case. Furthermore, a court can follow the ratio of an earlier decision only if the facts of the earlier case and those of the later case are materially the same.[84] Where the material facts of a case are not the same, the later court will distinguish its case from the earlier one;[85] therefore, it does not apply the ratio decidendi.[86] Moreover, a court can overrule a former decision, when this court is of a higher position in the hierarchy and finds that the earlier decision was wrong.[87] If the former and the later court are on the same level of the hierarchy or the ratio was developed in other jurisdictions, the later New Zealand court can decide not to follow the earlier decision and, accordingly, rule on a similar situation differently.[88] Moreover, a court developing the ratio decidendi of a case, or applying a ratio decidendi to another case, often has to face the problem that the content of a legal rule is not sufficiently clear.[89] Therefore, the question arises as to whether the court can apply a former ratio decidendi to a case.[90] Then deductive reasoning, where in clear cases the court argues by applying reasoning from the general to the particular, cannot be used. Rather, other techniques have to be applied to attain sufficient clarity to make a decision, which are generally also used in statutory interpretation. Therefore, the technique of reasoning by analogy can be used, where similarities and differences are compared with the objective that like cases should be treated alike.[91] In effect, common law proceeds by way of reasoning by analogy.[92] Applying reasoning by analogy, firstly, an analogy must be perceived; secondly, the ratio decidendi of the earlier case must be stated; and thirdly, the court must decide whether or not it applies the ratio to the case.[93] Regarding the third step, other relevant techniques can be applied such as reasoning by way of an argument ad absurdam, where it is proved that a necessary conclusion would lead to an absurd result.[94] Another technique is reasoning with an argument a fortiori, where it is argued that even a clearer case would not lead to an application in the respective case.[95] Moreover, reasoning by induction, in which reasoning from particular to general is considered, can be used.[96]

Second, the doctrine of stare decisis has to be considered. This principle states that a judge is 'in certain circumstances bound to stand by the decided cases, and (that he has) to accept and to follow the principles of particular precedents, whether he personally approves them or not'.[97] The justifications for that doctrine are that judges can 'utilise the wisdom of their predecessors, that it (provides) uniformity of application to similar cases and that it makes the law predictable'.[98]

The doctrine of stare decisis or binding precedent can function only as long as an effective system of law reporting and a system of a court hierarchy is provided. Firstly, in New Zealand the New Zealand Law Reports, which are under the control of the New Zealand Council of Law Reporting,[99] records the decisions of the courts. Secondly, a court hierarchy is established. The hierarchy is important because the doctrine of stare decisis stipulates that a court is obliged to follow a decision of a higher court in the same hierarchy if the respective case is similar to the former one, and that a court is not obliged to follow other decisions of courts lower in the same hierarchy.[100] In New Zealand, the Privy Council is the highest court in the hierarchy. The Court of Appeal, the High Court, and the District Court are below it.[101] The Privy Council, therefore, binds all of those. However, it is not itself bound by its own prior decisions.[102] The Court of Appeal, on the other hand, is ordinarily bound by its own prior decisions. Nevertheless, the case Re Rayner stipulated exceptions to this general rule.[103] In this case, the Court of Appeal adopted some principles as stated in the English case Young v Bristol Aeroplane Co Ltd.[104] The court consolidated this decision in subsequent judgments. Therefore, the Court of Appeal is not bound where the case involves two conflicting decisions of its own, a conflicting decision with aHouse of Lords' decision or a Court of Appeal decision given per incuriam.[105] Furthermore, the High Court and District Court are not bound by their own prior decisions, but in accordance with judicial comity they follow their decisions in general. Cases from other jurisdictions are not binding, but can be persuasive. In conclusion, the main principles which supported the development of a common law system are the principles regarding the establishing and applying of the ratio decidendi of a case, the doctrine of stare decisis and the system of law reporting. Accordingly, the courts are bound by prior precedents of courts higher in the hierarchy of the court system. Nevertheless, a court always has the possibility of reasoning that the case before it ought to be distinguished from the prior case or that it does not have to follow it. Therefore, this system provides a certain amount of flexibility besides legal certainty.

How Does it Work? - An Example of the Functioning of the Common Law System in New Zealand.

Examining the common law system in general still leaves some questions unanswered, such as the development and functioning of a specific corpus of law and the interaction between common law and statute law in individual cases. Therefore, the example of the development of the posting rules in contract law will be considered to give an understanding as to how the common law works, and as to how statute law can influence an existing common law structure.

The posting rules are part of the law of contract. Formation of a contract requires offer, acceptance, consideration, and an intention to create legal relations.[106] Generally, with acceptance of an offer a consensus ad idem (meeting of the minds) is achieved and a contract is formed. Accordingly, the question arises as to when an acceptance is complete. The general rule is that acceptance is complete upon communication and actual awareness on the offeror's side. This applies for the formation of contracts where both parties are in each other's presence.[107]

Problems arise where the offeree is accepting the contract in the absence of the offeror because in these cases the general solution of receiving the acceptance might not be the appropriate solution regarding the intentions of the parties, the business practice or the sphere of risk of each party.[108] In situations where the parties are not in the presence of each other, the courts developed different rules as to when an acceptance is regarded as complete. Thus, regarding the posting of an acceptance in a letter, the court decided in Adams v Lindsell that an acceptance is complete with the posting of the letter of acceptance.[109] Subsequently, other courts confirmed this rule and refined it. Therefore an acceptance is complete on posting even when the letter is delayed in the post,[110] or is lost and never reaches the offeror.[111] Furthermore, it was stated that a letter must be properly dispatched if it is to fall into the area of application of the postal rule.[112] The postal rule was also restrained by the courts; a prescription of a particular mode of communication precludes the postal rule.[113] Furthermore, problems connected with the acceptance of the offer had to be considered by the courts. Thus, the problem arose whether an acceptance which was posted after a revocation of the offer was posted, but before the offeror received the revocation, was effective. In this situation, the court decided that in the case of a revocation of an offer, the revocation had to be communicated.[114] The courts also contemplated the retraction of an acceptance. No uniform principle could be reached on this issue. Whereas the New Zealand and South African courts decided that an acceptance cannot be revoked after posting,[115] a Scottish case supports the view that an acceptance can be revoked until it is received by the offeror.[116] Nevertheless, with ongoing technical progress the courts had to decide whether the postal rule applies to new means of communication. Therefore, they decided the postal rule does apply to telegrams[117] and that failures in the transmission do not affect the message.[118] Regarding telex communication, the courts decided the postal rule does not apply;[119] the same decision was made for telephone[120] and fax communication.[121] All these means of communication were regarded as (almost) instantaneous, which made them comparable to communication inter praesentes, to which the general rule is applied that acceptance is complete on receipt. The newest technological invention is, nowadays, the widely accepted electronic mail. So far, no case law has developed to address the question of whether electronic mail should be treated as an instantaneous or anon-instantaneous communication. Nevertheless, clause 11 of the Electronic Transactions Bill[122] deals with the receipt of an electronic communication. Accordingly, the Bill gives a definition as to when electronic mail should be deemed to be received, but does not solve the problem of whether or not the postal rule should apply to electronic communication. At this stage of the Bill, the possibility remains of ruling on this matter in a statute. All in all, a body of law, which is a set of legal rules concerning a particular activity, is not founded upon one decision or several decisions in a short space of time. Rather, a body of common law develops in accordance with the results of decided cases, which reflect the social and technological development of the particular society. Starting with a proposition of law in one case such as Adams v Lindsell, this proposition becomes an authority with the application by other courts to their cases. As seen in the development of the posting rules, the principle can then be further developed and refined by other courts. Furthermore, the precedent might have an influence on other connected areas of law such as the revocation of offer and the retraction of acceptance in the case of the posting rules.

Nevertheless, the principle can also be restrained through court decisions in its area of application, such as the application of the postal rule only to non-instantaneous communication. Thus, a body of law develops slowly and is not concluded at a certain time; rather, it evolves through time whenever some change in society or technology happens. However, statutory law can have an impact on a body of common law. In New Zealand, Parliament, as the supreme law-making body, can state the law and also change the common law. In the Electronic Transactions Bill, the New Zealand legislature has so far missed the possibility of ruling on the area of formation of contract, and providing a general principle of how the different means of communication should be treated by the courts. Nevertheless, Parliament could change this area of law, which is regulated by a body of common law, by enacting statutes.


The New Zealand legal system is characterised by common law, which it inherited from England. Nevertheless, the principle of parliamentary supremacy empowers Parliament to change, amend, or create new law whenever it regards these alterations as necessary. Therefore, common law faces an ever-increasing overlay of statute law. Furthermore, the constitution controls the power of Parliament, the Courts and the Government, as well as influencing statutory interpretation. Customary law, on the other hand, represents only a minor authoritative form of law. However, these sources of law provide New Zealand's society with an effective system of law.

III. Germany


German law has to be considered in the European context because of Germany's membership to the European Union. An important influence of the establishment of the European Union on German law is that European law generally prevails over German law.[123] This principle was acknowledged early according to primary Community law, which comprises Treaties signed by all Member States.[124] Furthermore, Regulations, which are part of the secondary Community law, are considered to be directly applicable and supreme over Federal German law.[125] Moreover, European Directives, which were not implemented in German law within the agreed time schedule, have direct effect and prevail over German law as long as they are unconditional and sufficiently precise in their contents.[126] The German Federal Constitutional Court (FCC) acknowledged the supreme function of European law by deciding that as long as Community rights provide the effective provision of fundamental rights, European law prevails even over the German constitution, and that accession to the European Union is compatible with the Basic Law of Germany.[127]

However, the German constitution comprises mainly the Basic Law (Grundgesetz), which is supplemented by the interpretation of the FCC,[128] International Treaties[129] and articles 136-137 and 141 of the Constitution of Weimar.[130] Therefore, Germany is deemed to have a written constitution.[131]

The Basic Law has two main parts. On the one hand, it considers the rights and obligations of the governmental organs, the organisation of state, and the relationship between the different organs of state.[132] On the other hand, the Basic Law states the rights of the individual to the governmental organs.[133] These rules are supreme in terms of any other law enacted by the German legislature. Accordingly, any legislation has to be in accordance with the Basic Law otherwise the FCC will declare it void in accordance with article 93 of the Basic Law and section 13 of the Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz). This principle is stated in article 20 (3) of the Basic Law. Moreover, the Basic Law is entrenched law. Therefore it can only be amended or repealed if a two-thirds majority of the Members of the Bundestag and the same proportion of the Bundesrat[134] agree and the amending Act expressly states that it intends to change the Basic Law .[135] Moreover, articles 1 to 20, which state a Bill of Rights, as well as the leading principles of the constitution such as democracy or the binding force of law, and the division of the Federation into states, as well as their participation in the legislative process, cannot be changed, altered or repealed.[136] This ruling confirms that the Basic Law has the highest ranking of any law. Therefore, in Germany, as opposed to New Zealand, Parliament is not supreme; rather, the Basic Law is supreme. Accordingly, any statutes and any interpretation of the law must accord with the Basic Law.

However, the question arises as to whether the Basic Law also has a direct effect on an individual upholding a right of the Basic Law against another individual.[137] The FCC decided that the rights as stated in the Basic Law are not applicable between individuals, but that they indirectly affect the relationships between individuals by influencing the interpretation of general clauses in the German Civil law such as sections 138, 242 or 315 of the German Civil Code.[138]

The German constitution differs broadly from New Zealand's constitution. Firstly, the German constitution comprises mainly the Basic Law and is, therefore, considered a written one. Therefore, the German constitution provides all principles of the state and the Bill of Rights in one document, whereas in New Zealand a range of documents has to be considered.

Secondly, both constitutions differ in that the German constitution is entrenched law. Accordingly, the German Basic Law is the supreme law of the country. It forces the Parliament, the Government and the Judiciary to act in accordance with it. This supremacy is confirmed by the fact that some very important principles, such as the Bill of Rights, are not changeable. As a necessary result, the FCC has the competence to declare acts of the Judiciary, the Executive, or even the Legislature, void when they are inconsistent with the Basic Law. In accordance with confirming consistency with the Basic Law, the European Law was also checked by the FCC. In New Zealand, on the other hand, Parliament is supreme and no entrenched law exists in general.[139] Statutes are the supreme source of law. Therefore, Parliament even has the power to change or repeal parts of the constitution without any obligation to fulfil certain requirements such as a two-thirds majority vote. Courts cannot declare any statute void. However, the difference regarding the entrenchment of the constitution is the most important one. An entrenched constitution, as in Germany, guarantees the application of stated human rights and other principles, whereas in New Zealand, Parliament always has the power to abolish such important rights. Nevertheless, the New Zealand system relies on the conscience of the people of the nation in electing Parliament as the supreme lawmaker, and this is also a commendable principle.


German law is based on a civil law system. Accordingly, statutes regulate an entire area of law in one cohesive document.[140] Therefore, the aim of the law-making process is to provide codes, the wording of which is comprehensive, abstract, and precise.[141] The codes state principles rather than specific rules as in the common law system. Often the general principles are filtered out, placed at the beginning of the code or the beginning of the respective part of the code, and are followed by specific principles. These legal principles can be applied to new legal problems to obtain a solution. The role of the courts in this kind of legal system is to apply and to interpret codes. They are not able to develop new principles of law as in the common law system.[142] Statutes in this context shall be defined as federal and state statutes in contrast to delegated legislation, customary law, or even the Basic Law.

In general, statutes provide legal certainty. Nevertheless, an ambiguous word, a vague concept or broad wording of general clauses can require interpretation by the courts in order to establish the proper meaning of a provision.[143] Therefore, the court must ascertain the reasonable purpose of the statute that the legislature intended when enacting the statute (objective interpretation).[144] The courts use different approaches to determine this purpose, similar to the common law system. Firstly, a literal or grammatical approach has to be considered. Here, the courts are considering a provision in its semantic content and syntactic structure.[145] If the meaning of a word is defined in another provision, this meaning will prevail. If technical legal language is used, the common legal usage has to be considered, otherwise the ordinary usage is applicable.[146] Secondly, the systematic approach investigates the considered wording in relation to the provision as a whole, or other provisions of the same Act or legal system.[147] Accordingly, a provision has to be interpreted in the light of the Basic Law. If a provision can be interpreted in different ways, the way consistent with the constitution prevails.[148] As a consequence of Germany's membership of the European Union, the court must also interpret the law consistently with a European Directive, if the considered provision was enacted in accordance with implementing this Directive into German law.[149] Thirdly, courts have to considerthe historical approach. Thus, the intended purpose of the historical legislator has to be investigated.[150] In this situation, preparatory legislative material can be used in considering the original intentof aprovision.[151] Furthermore, courts can also interpret a law with regard to comparable norms and institutions of comparable legal systems;[152] the compared rules must cover the same or similar factual situations. Moreover, the teleological approach determines the meaning of a provision in accordance with its purpose or aim given by the legislature.[153] Thus, the goals and functions of a law have to be considered in evaluating the sense and purpose of the statute.[154] The courts tend to give the teleological approach priority. Nevertheless, the provision must be considered as a part of a system of law and justice as stated in article 20(3) of the Basic Law. Accordingly, the interpretation must always be compatible with the constitution, the concept of legal certainty, and the idea of protection of confidence in former legal developments.[155] The role of the constitution in interpreting statutes has to be emphasised. On the one hand, every interpretation has to be in accordance with the Basic Law and its constitutional principles, such as human rights and state principles.[156] On the other hand, the Basic Law has to be considered in interpreting general clauses, for example in the German Civil Code.[157] Moreover, another restraining mechanism of statutory interpretation is the existence of precedent. If a meaning of a word has been established by former courts, later courts can deviate from that meaning only if the purpose of the statute demands another interpretation.[158] In interpreting a statute or provision, courts apply different forms of reasoning. Thus, the courts can give a word an extended or restricted meaning in evaluating the purpose of the provision.[159] Furthermore, reasoning by analogy is an important form of reasoning. A distinction must be drawn between an analogy of a provision ('Gesetzesanalogie'),[160] and an analogy of the law ('Rechtsanalogie').[161] Moreover, courts have the option to reason by way of teleological reduction. Here, the court argues that a provision is not applicable to a situation according to the intention of legislature, even though literally the provision would be applicable.[162] Other forms of reasoning are the argument a fortiori or the argument ad absurdam.[163] Moreover, the general presumption applies that provisions, which state an exception to a general rule, cannot be used for reasoning by analogy.[164]

In case of a conflict between provisions, the later, the more special or the superior norm prevails.[165] However, if a provision conflicts with the Basic Law, the FCC will declare it void in accordance with article 93 of the Basic Law. Moreover, a statute may cease to exist by the enforcement of a new Act,[166] by the implementation of a 'sunset-clause' or by its repeal through an Act of Parliament.

Comparing German statute law with New Zealand statute law, several differences are apparent. Both are based upon different underlying principles. Whereas German law is built upon codes, which cover whole areas of law by stating general principles, New Zealand statutory law tends to govern specific areas of law. Statutes, therefore, often intend to reform and alter specific common law rules. In addition, the existence of a body of common law makes it unnecessary to cover a whole area of law already covered by common law that has developed over centuries. German law, on the other hand, does not have a common body of law. Accordingly, it is necessary to cover all law by statutes. In fulfilling this task, the legislature considers an abstract and comprehensive form as most sensible and useful. Providing an abstract conception of statutes, the German concept of legislation allows the possibility of applying codes to new situations, even though some of the codes were created in the 19th century through using the aforementioned interpretation techniques. Another basic difference relates to statutory interpretation and the influence of the respective constitutions. German statutes have to be compatible with the Basic Law and the fundamental principles of the Basic Rights.[167] Any inconsistent provision can be declared void by the FCC. By contrast, New Zealand lacks a written constitution containing a Bill of Rights authority. The New Zealand Bill of Rights is ordinary law and cannot claim a supreme position over other statutes. Therefore, the New Zealand Bill of Rights Act will not prevail over other law, as stated in section 4 of that Act. However, section 6 of that Act requires that enactments be interpreted consistently with the New Zealand Bill of Rights Act in so far as that is possible. In contrast to Germany, consistent interpretation is only a goal to reach in New Zealand and not a compulsion to satisfy.

Despite the differences regarding statute law, there are recognisable similarities between the systems. Thus, the German and New Zealand systems interpret their statutes in a similar way. Each system applies the literal approach, and the main approach is to state the meaning of the wording in accordance with the purpose of the Act. Therefore, the intention of the legislature must be determined. Generally, both legal systems follow the same principles in considering the purpose of a provision, even if they use different legal terms in describing them. Therefore, the surrounding words, sections, and parts, as well as the wording of the entire statute, can be considered. Furthermore, the intention of the historical legislature, other statutes within the same context, and the constitution have to be contemplated. Even the restraints of interpretation are similar. Restraints in New Zealand comprise precedents, certain presumptions and the history of a provision, whereas in Germany, precedents, which provide consistency in legal decision-making, and the Basic Law, which comprises presumptions such as the ban of retrospectivity in criminal law,[168] restrain statutory interpretation. Moreover, the mechanisms of repeal are almost identical. These similarities show the practice of application of statutory provisions in both countries does not differ broadly.

Customary law

Customary law is a formally recognised source of law in Germany.[169] It derives from the ancient German tribes' law and existed during the medieval period parallel to Roman law.[170] The promulgation of legislation over the last two centuries has meant that custom has been increasingly superseded by statutes. Therefore, nowadays, customary law is a very limited source oflaw.[171]

Nevertheless, customary law still exists and courts still have to apply it to cases. Customs are defined as unwritten long-standing practices, which are recognised as binding legal authorities by those affected by the respective customs.[172] No time limit exists as a requirement for acknowledgement as law. Furthermore, customs must be distinguished from statutes and common usage. Whereas statutes have to be expressly enacted in a specified form to become law, customary law evolves over time and is recognised by the courts, after the populace has acknowledged the custom as binding law without a special act.[173] Moreover, common usage does not fulfil the requirements of customary law even if it is an extended and recognised practice, because it lacks the requirement of a widespread conviction that it is law.[174] Even a consistent practice of the courts does not constitute customary law.[175] However, if a common conviction about the usage as a legal authority coincides with a consistent practice of the courts, this practice can become a custom.[176] Besides, in civil law, examples of customary law can be found in constitutional and parliamentary conventions and customary court practice.[177] A customary law ceases to be effective when a differing statute has been enacted or a contrary customary law has been developed.[178]

In comparing customary law in New Zealand and Germany, the most obvious difference is that no customary law of indigenous people exists in Germany, whereas in New Zealand the customs of Maori must be considered. Nevertheless, one main similarity is that customary law in Germany and in New Zealand (inherited from England) does not arise from a distinctive act; rather, customs have developed over years. In contrast to German law, New Zealand customs are acknowledged only when they have existed since time immemorial.[179] German customs, on the other hand, do not have to date from a specific year as long as they are long-standing. However, German customary law is acknowledged as law only when a widespread conviction exists that the custom is a valid and legally binding rule of law. In New Zealand, a custom also has to be observed as of right before it is enforceable. Therefore, both requirements seem to be almost the same. In both countries, a custom must be observed as of right or as law before it can be considered by the courts to be law. Nevertheless, the degree of the German requirement seems to be stricter. For instance, in New Zealand, commercial usages are recognised as customs,[180] but German law does not consider them as customs because they generally lack the mentioned common conviction. However, in both cases, customs cannot be 'created' by the judge; the courts can only declare and, therefore, confirm their existence. Moreover, in both legal systems customs are a less important source of law, because statute law (and in New Zealand also common law) has supplanted customary law in many areas of the law. Comparing New Zealand and German customary law, the conclusion can be drawn that the requirements for being acknowledged as a custom, as well as the role of customs in the legal system, are similar in both countries.

Function of the Courts

In Germany, the decisions of the courts are not acknowledged as a source of law.[181] The courts are not empowered by the constitution to design new law; rather, they are bound by it.[182] Regarding the principle of the separation of powers as stated in the Basic Law, the judiciary has not obtained any law-making power, but gained independence from the Legislature and Executive to fulfil its task of applying the law.[183] Moreover, every decision of a court is binding only on the respective parties and does not have any effect on another court deciding a similar constellation of facts.[184] Nevertheless, the judiciary does not follow these principles strictly. Instead, exceptions in law and court practice have to be considered. Thus, the general task of the courts is to apply the law as stated in statutes. However, the question of how to apply a statute to a case often arises. The court then has to interpret and specify the law. Accordingly, judges define wordings of statutes and state the area of application of a provision. Furthermore, they can interpret the law in accordance with the purpose of a provision by reasoning by way of extending or restricting the meaning of a word, or even by reasoning by way of analogy.[185] Therefore, the judges are free to elaborate and develop the law.[186] Moreover, sometimes no statutory law applies to a situation which has arisen because the legislature has not foreseen the problem and, therefore, has not covered it. In that situation, the judges are empowered to fill the gap. Nevertheless, such a gap must have arisen from an unintentional lack of regulation regarding the underlying legal concept of a statute before the courts are allowed to fill it.[187] This is the case when either the legislature wanted the courts to fill the gap or the legislature has overlooked the problem.[188] Accordingly, the first step a judge has to make is to consider the existence of an unintentional gap. Subsequently, the judge can fill the gap in accordance with the underlying principles of the statute. The applicable technique the courts use is reasoning by analogy, by way of both extending or restricting the legal scope of provisions.[189] Here, the courts are effectively creating law. The FCC confirmed this practice as compatible with the constitution. In the Soraya case,[190] the FCC stated that a judge is allowed to fill a 'gap according to the standards of practical reason and the community's well-founded general ideas of justice' as long as 'the written statute fails to fulfil its function of providing a just solution for a legal problem'. Subsequently, the FCC stated that a judge is not restricted in filling legal gaps. As long as the legal system provides basic legal principles, which establish the basis for legal development, judges are authorised to develop the law.[191] Another exception to the prohibition of creating law applies to the FCC. It is empowered to create law in accordance with articles 93 and 94 of the Basic Law and section 31 of the Federal Constitutional Court Statute (BVerfGG),[192] where its decision is given the force of law binding on all courts, the Legislature and the Executive.[193]

Moreover, the question arises as to whether the doctrine of stare decisis applies to the German legal system. In general, the courts are not bound by any prior decision of another court. Rather, 'the judges are completely free to decide every case on its own merits and (are) not be hindered by previous decisions' because of the lack of a principle of binding precedent.[194] However, the main statutory exceptions of that principle are, firstly, the above-mentioned status of the FCC. Secondly, decisions of the Federal Court of Justice, which follows the FCC in the hierarchy of the court system, must follow specific procedural rules in order to deviate from prior decisions. If one of the senates of the Federal Court of Justice wants to deviate from a prior decision of another senate on the same level of the hierarchy concerning a general principle of law, or if a senate's decision would lead to a contradiction between the criminal and civil senates, a special Great Senate or Combined Great Senate has to be established.[195] These Great Senates have to admit a change in law, before the other senates can apply the change. This changed law then also has a binding effect on the courts (see section 132 Judicature Act (Gerichtsverfassungsgesetz)).[196] Thirdly, in the same manner, the Courts of Appeal[197] must have permission from the Federal Court of Justice.[198] Moreover, if a higher court in the hierarchy reverses a decision of a lower court, the lower court is bound by this decision in the respective appeal decision.[199] However, it is recognised that lower courts in the hierarchy generally follow the decisions of higher courts. Accordingly, the decisions of the Federal Court of Justice are deemed to be particularly persuasive,[200] and are followed by the decisions of the Courts of Appeal, the Regional Courts[201] and the Local Courts.[202] The main reason for this hierarchical process is that the decisions of lower courts bear a risk of being reversed if they depart from an applicable decision of a higher court.[203] Therefore, lower courts try to apply recent decisions of their appeal courts to their cases. Furthermore, an established line of decisions is considered to be more persuasive and is more likely to be followed than a single decision on a point of law. Nevertheless, although a lower court always has the option of departing from a higher court decision as it is not formally bound, it still has to put more effort into its argument to minimise the risk of being reversed.[204] Accordingly, it is essential for a lower court to have access to higher court decisions. The FCC and the Federal Court of Justice have, therefore, established an official reporting system to provide access to their (often) binding decisions. Other decisions are reported by private institutions in accordance with their judgement of the importance of a decision for later cases.

All in all, Germany lacks a system of creation of law by judges as well as a system of binding precedent, but recognises, and even establishes, certain exceptions such as the filling of gaps or the binding effect of the decisions of the FCC and the Federal Courts of Justice. Therefore, consistency in court decisions is achieved by the supervision of the constitution by the FCC, the requirement of a Great Senate before deviating from prior decisions, the burden of argument for lower courts deriving from higher court decisions and by unbroken lines of authorities. Thus, the system provides consistency in court decisions and supports flexibility in deviating from prior decisions.

The function of the courts is the basic difference between the legal systems of New Zealand and Germany. The common law system of New Zealand acknowledges the power of the court not only to apply the law but also to 'create' (or at least to declare the existing law), whereas the civil law system of Germany expects the courts only to apply the law. Accordingly, the judge-made common law is a formal source of law in New Zealand. This source is developed and applied by following the principles of finding the ratio of a former case, the doctrine of stare decisis and an effective system of law reporting. German law, on the other hand, does not acknowledge case law as a source of law. Rather, the courts only apply statutes, do not create law and are not bound by any prior decision. Thus, in New Zealand, judges are able to develop common law through cases because of their legal training, which gives them the possibility of determining the (existing) law. In accordance with the authority of the courts, subsequent courts have to elaborate the general principle of law from a prior decision, before they apply it. In contrast, German courts do not create law, but apply statutes. However, in interpreting and applying statutes, in filling gaps and in generally developing the law whenever the legal system provides respective basic legal principles, the courts have obtained power to 'create' law within the prescribed areas and according to the stated requirements. Moreover, the doctrine of stare decisis binds the courts in New Zealand. Judges have to apply former decisions as precedents. Nevertheless, specific exceptions exist relating to the Privy Council, the Court of Appeal and the other courts. Moreover, the courts have the option of distinguishing their case from the prior one or not following it in certain situations. Therefore, they have some freedom to decide whether a ratio is applicable to their case, and can avoid unjust decisions. In Germany, no doctrine of stare decisis exists. The judges are not bound by prior decisions. Nevertheless, exceptions to this principle are the binding force of decisions of the FCC, the change of basic principles by the Federal Court of Justice or the Court of Appeal, and the de facto binding of lower courts bearing the risk of being reversed. German courts are, therefore, bound by prior decisions. In conclusion, the New Zealand system acknowledges the power of the courts to 'create' law, and has established a system of binding precedent as a consequence. However, certain exceptions 're-open' the system, such as reasoning by distinguishing or the non-binding force of the Privy Council or Court of Appeal regarding their own prior decisions in certain cases. On the other hand, the German system does not rely on judge-made law and has, accordingly, no system of binding precedent. However, judges have the possibility of developing the law and a general de facto binding of the courts in the hierarchy exists. Therefore, New Zealand provides a system which establishes legal certainty and consistency, but has to re-examine cases according to divergence in the facts of the cases. Germany, on the other hand, provides a flexible system regarding the binding of the courts to earlier decisions, but has to recognise that a certain consistency is necessary to provide legal certainty. Therefore, the legal systems start from different bases, but come closer by making exceptions regarding their legal doctrines.

How Does it Work? - An Example of the Functioning of the Civil Law System

After having examined the civil law system generally, a specific example will elucidate the functioning of the German system. The rules regarding the receipt of an acceptance will be considered, consistently with the part of this paper that dealt withNew Zealand's approach to similar rules. This will give an example of how judges apply the general principles provided in statutes to specific legal situations. Accordingly, the status of statutes and the importance of interpretation and legal development by judges become clear.

The problem of receipt of acceptance is part of contract law and the formation of contracts in particular. The law of contract as part of the concept of legal transactions is stated in the Civil Code of Germany. Because the problem of contract formation arises in any contract, it is placed in the general part in the beginning of the Civil Code and, therefore, precedes a consideration of special forms of contracts. Moreover, the German law follows the concept of declarations of intentions, which states general rules for statements with the intention of binding the declarator legally.[205] These rules apply to offer and acceptance, which are the essential statements for a contract.[206] Thus, a contract is concluded when an offer is accepted if the acceptance has the same content as the offer so that a meeting of the minds is achieved.[207] Accordingly, a contract is formed with acceptance. Thus the question arises as to when the acceptance is effective. Generally, an acceptance is effective when it is received, unless a revocation reaches the other party before or at the same time as the acceptance.[208] This general principle was developed from the rule that a declaration of intention made inter absentes is effective with receipt under s 130(1) Civil Code. This principle regarding declarations made inter absentes was also applied to declarations made inter praesentes. Therefore, an acceptance made in the presence of the other party is received at the time the other party becomes aware of it.[209] Furthermore, section 147 (1) of the Civil Code states impliedly that telephone communication has to be treated in the same way. However, the question arises as to when an acceptance made in the absence of the other party is received. The Civil Code does not rule on this question, therefore the courts had to find a solution in accordance with the Civil Code. They developed the rule that a written acceptance is received when it reaches the 'sphere of influence' of the offeror at the time he or she can reasonably be expected to become aware of the message.[210] Accordingly, a posted acceptance is binding on receipt in the sphere of influence of the other party.[211] This concept of acceptance has been confirmed in an unbroken line of authorities, which makes a deviation from it extremely difficult for a court not wanting to take the risk of being reversed. On the basis of this principle, the courts decided that a letter is received when it is put in a letterbox during daytime,[212] and a fax is received with the printing at the offeror's place at a time the fax can be expected to be read.[213] A telegram, on the other hand, was found to be equivalent to telephone communication, which is why it is regarded as received with the input of the words of the telegram.[214] A statutory provision as well as a decision relating to email communication does not exist, but some authors regard emails to be equivalent to letters so that the receipt is deemed to have taken place with receiving at the mailbox.[215] Moreover, an acceptance has to be posted correctly and the declarator has to ensure that the acceptance will be received by the other party.[216] Accordingly, as long as the letter has not reached the offeror, the declarator has to take the risk of loss of the letter, which means that an acceptance cannot be regarded as being effective by mere posting. On the other hand, if the acceptance has reached the offeror's device of receipt, the acceptance is considered to be effective even if it never reaches the offeror personally.[217] All in all, this example shows how statutory law and judicial decisions are working together. Statutes generally provide principles and try to organise and categorise the law in an attempt to cover a whole area of law. Nevertheless, these stated principles, such as the principle of receipt of acceptance in section 130 of the Civil Code, have to be refined in order to be able to apply them to special situations. Therefore, the task of the courts is to apply the factual situation to the provisions. Here, judges can argue whether a special case is covered. However, surrounding provisions, the intention of Parliament, and an unbroken line of authorities, restrain their 'discretion'. In elaborating upon statutes, judges often reach the borderline of the creation of law. Thus, by defining when an acceptance is received, judges create a rule that is applied to various cases because the Civil Code does not clarify the issue. Therefore, an unbroken line of authorities was created, which gives this rule great persuasiveness. However, in contrast to New Zealand law, these German court decisions do not create law and, accordingly, other judges are not legally bound by these former decisions. Moreover, whereas in New Zealand statutory law is often used to reform common law as another source of law, in Germany statutes provide the basis of law. Therefore, the line of authorities ajudge follows in determining the law for a case is from a statutory principle in an unbroken line of authorities, to a personal application and interpretation of the law, whereas, in New Zealand, the line starts either at common law, and follows the precedents, or at statute law and its interpretation.


The German legal system is dominated by its 'written law'. The Basic Law, as well as all other statutes, tries to cover every area of law cohesively. Customary law is of minor importance. Nevertheless, the role of judges is an important one. Only by refining the statutory law do statutes become workable and applicable to cases. Accordingly, the German system is effective because it combines the legal certainty provided by statutes with the flexibility of the courts in applying, in interpreting and in developing the law to specific circumstances.

IV. Conclusion

Comparison of the Systems

In comparing the German and the New Zealand legal system, several basic differences become apparent. Both systems have retained their different roots. Whereas New Zealand stands by its common law history, Germany has followed its civil law history. In New Zealand, the common law still characterises the legal system. Therefore, judges have the power to 'create' law and subsequent courts are obliged to follow it. The development of statutory law takes place by having regard to common law. The legislature enacts statutes whenever it wants to reform the common law or govern a newly arisen area of activity. Therefore, the statutes are often specific in their area of application. German law, on the other hand, does not empower the courts to state law. Statutes are considered to be the main source of law. Accordingly, statutes always try to cover a whole area of law cohesively, such as the Civil Code, which attempts to govern all cases arising in private law, except commercial law. Judges are restricted by applying statutory law to cases. Accordingly, no doctrine of stare decisis is acknowledged in Germany. Other differences include the technique of New Zealand judges in approaching case law and extracting the ratio decidendi of a case, as well as the lack of a written and entrenched constitution in New Zealand in contrast to Germany. Nevertheless, both systems have moved closer in the way they deal with legal issues. Firstly, exceptions to the doctrine of stare decisis in New Zealand have been made. The Privy Council is not bound by its own prior decisions and the Court of Appeal has considered itself not to be bound by its own prior decisions under certain circumstances.[218] Furthermore, courts always have the possibility of reasoning by analogy to distinguish their case from prior precedents, which gives them the possibility of departing from prior precedents. These developments give judges acting in a system of case law, which provides consistency by binding judgments and, therefore, provides legal certainty, the possibility to act flexibly. Accordingly, judges have the chance to avoid unjust decisions, for example, because of changed social and technological conditions, which make a precedent inappropriate. German law, on the other hand, provides no system of stare decisis, which makes the system very flexible as judges can decide their cases without having regard to prior decisions. Nevertheless, such a system lacks legal certainty, even though the law is provided by statutes, because judges are free to interpret those statutes differently. However, exceptions to this general principle have been made. Therefore, some decisions of German courts have binding force. Thus, the decisions of the FCC have to be followed, and the Federal Court of Justice can deviate from prior stated principles only by establishing a Great Senate. Moreover, the Courts of Appeal have to obtain permission from the Federal Court of Justice if they want to deviate from a principle of law stated earlier by this court. Furthermore, the courts of lower instance bear the risk of their decisions being reversed if they do not follow a prior decision from a higher court without very good reasoning. Therefore, consistency is achieved in the German legal system. All in all, both systems have come closer together. They have departed from their original principles by making exceptions and, therefore, have developed towards each other. By applying law to cases, they both acknowledge that prior court decisions can be binding, but also provide the possibility to deviate from them. Finally, the courts of both legal systems are acting in a consistent, but flexible legal environment.[219]

Secondly, when it was thought to be appropriate, the legislature in New Zealand and Germany have departed from their usual approach.[220] In New Zealand, statutory law states the law in very detailed form, where the Parliament as the supreme law-making body intends to change common law or wants to govern a newly arisen area of activity. An increasing number of statutes have come into force during the last years, so that the area of law governed by statutes has been extended. For instance, Acts regarding consumer protection show that these areas are not intended to be governed by common law anymore. In Germany, on the other hand, statutes and provisions control more and more specific areas of activity.[221] Therefore, the German legislature has been departing from the principle of general codes. Thus, nowadays, both legal systems try to cover many areas of activity in detailed legal form and, therefore, have moved closer to each other. Other similarities can be recognised in statutory interpretation where similar argumentation is used, and regarding the status of customary law, which plays a minor part in both countries.[222]

In conclusion, the basic principles of the German and New Zealand legal systems still follow their different roots. Nevertheless, there is now some convergence in the functioning of the courts and the enacting of statutes. The necessities of legal certainty, balanced with flexibility, have forced both systems to leave their different positions and, unintentionally, come closer in applying law and creating statutes. Therefore, the practical application of law in the societies of both countries does not differ broadly which also lessens the possibility of conflict between both systems when they encounter each other in international transactions.

The Function of a Mixed System

The comparison between the common law system of New Zealand and the civil law system of Germany has shown that even though some convergence has taken place, both systems still retain their different roots and, accordingly, still function differently relating to their basic principles. Therefore, the question arises as to whether a harmonious co-existence of both systems is possible in a global context. Modern means of communication make international transactions, even in private life, much easier and more probable. Thus, the legal systems will have more contact points with each other than in former times. A unified system, on the other hand, might avoid any conflicts completely. In answering the question whether a unified system should be considered, the experience of a mixed system will be discussed. Thus, the legal system of Québec, which combines common law and civil law parts, will be examined to see how well both systems can co-exist. Therefore, a brief overview is provided of the legal system of Québec. Québec has historically inherited three different kinds of law. Firstly, the European settlers came into an existing society of Native Americans who ruled their lives in structures of family, public, and criminal law.[223] Secondly, the first European settlers originated from France, which was why they ruled their lives according to French law, which has a civil law history.[224] Thirdly, the English achieved sovereignty over Québec in 1759 and therefore attempted to introduce English common law.[225] A conflict then arose about which law should prevail. This discussion was resolved by enacting the Québec Act 1774, which states that private law, which includes the law of properties and civil rights in general, is governed in accordance with French civil law, whereas public law, which implements constitutional, administrative and criminal matters, is mainly governed by English common law. The enactment of the Québec Civil Code 1866 confirmed that division, as well as the Canadian Constitution Act 1867.[226] Therefore, Québec enjoys a 'bi-systematic legal system'.[227] This mixed system still exists today and, moreover, functions well. Accordingly, the first issue a lawyer has to consider in solving a legal issue is to distinguish between public and private law.[228] This distinction shows him or her whether common law or civil law is applicable. In concurrence with the distinction, the authorities of the courts hearing conflicts in public or private law are different. Whereas within the common law jurisdiction the doctrine of stare decisis has to be applied, no such principle is acknowledged regarding the private law.[229] However, a development — similar to the one observed in the German legal system — can be recognised in that the courts are writing longer decisions setting out facts, reasons and conclusions, and are tending to follow previous court decisions without generally acknowledging them as binding.[230] Therefore, the courts act similarly whether they apply common law or act within the civil law jurisdiction. This tendency might be one reason why no conflicts occur between the common law and civil law in Québec. Furthermore, the boundaries between both systems are not followed strictly. Rather, the 'resolution of legal issue(s) requires working across any conceptual boundary'.[231] Moreover, some areas of law, such as commercial law or the law of civil procedure,[232] are influenced by both systems, and the lack of a strict definition between public and private law has given rise to continuing interaction between the two sources of law.[233] Nowadays, even the Supreme Court of Canada considers common law and civil law traditions in order to unify the private law.[234] Thus, an ongoing process of mixing between both systems can be recognised.

Nevertheless, the reinforcement of the Civil Code 1866 in 1994 confirmed the different concepts of law within the law system of Québec. This renewal of the Civil Code codified 'the legislation, the body of decided cases that merit continuing authority, the accumulated wisdom of legal commentators, and the usages that have developed around various legal institutions'.[235] Therefore, ideas of case law were implemented. This position shows that even the distinction between private law, based on the civil law system, and public law, based on the common law system, remains; both systems are not static, but take the best from one another.

All in all, the mixed legal system of Québec works well. Even though the system retains the different approaches in public and private law, no conflict between the parts of the common law and civil law regarding legal dispute resolution appears. The interaction between both systems has not led to an abolition of one of them. Rather, it is recognised they influence each other positively and, therefore, develop the legal system further. The Québec legal system shows that 'law is tolerant of high levels of complexity'.[236] The example of Québec's combined legal system shows that common law and civil law can co-exist in one legal system. The combination of the systems does not lead to confusion. Rather, their influence on each other can help to develop the systems further, as can be seen regarding the reform of the Civil Code of Québec. The example of Québec also shows the convergence between both systems, for example, regarding the doctrine of stare decisis. Moreover, the similarities in solving legal disputes make it much easier for courts to adapt to each respective approach. Accordingly, transferring the concept of the mixed system of Québec into a global context, the conclusion can be drawn that it is possible for common law systems and civil law systems to co-exist.. The experience of Québec shows that the assumed conflict of both systematic approaches acting in a global environment does not occur. Rather, they can influence each other positively and lead to the development of mechanisms of the legal system. Moreover, another argument against a unified system is that the legal systems are manifested differently in their societies. For instance, the United States of America is generally governed by a common law system, but it differs from England in that it has a Federal system, a written constitution and uses — unofficially — Restatements of Law, which state certain precedents of the common law.[237] However, these differences between societies governed by the same legal systems do not cause conflict in the legal disputes that arise in cross-border relations. This situation is similar to legal disputes that must be resolved by parties situated in societies with different legal systems. Therefore, given the lack of conflict between different versions of law in societies governed by the same legal system, and the experience of Québec, there seems to be no necessity to go through the trouble of developing a unified system.


Legal systems exist in changing societies and are, therefore, influenced by the historic and technological developments of their respective societies. Accordingly, the development of society, striving for the most appropriate government, may also lead to a development of the legal system. Such a development can be recognised regarding the civil and common law systems. Several changes, particularly in the last two centuries, with technological inventions like cars, telephones and Internet communication, have all forced legal systems to become flexible. For instance, not every decision made in former times within the common law system might still be appropriate to determine a similar modern situation. Furthermore, statutes within civil law systems might not cover all issues that arise, because these issues were not known and, therefore, were not considered at the time the codes were created. Accordingly, both the common law and civil law systems have had to provide proper mechanisms to adapt to newly arising situations. Subsequently, both systems have developed in the same direction by making exceptions to their basic principles. The common law system has deviated in certain circumstances from the doctrine of stare decisis and reforms of the common law are carried out by enacting precise statutes. The civil law system has deviated from its principle of non-binding precedents in certain cases, and has started to cover unconsidered areas of law by enacting precise statutes or giving courts the authority to fill gaps. Therefore, the development of both systems has led to the situation where the systems have come closer together. They provide flexible systems, which can adapt to future changes in society, and provide legal certainty. Moreover, this convergence of the civil law system and common law system supports global transactions by avoiding different dispute resolution systems.

Moreover, it is unnecessary to unify different legal systems as there is no conflict between societies governed by different forms of the same legal system. The mixed system of the Canadian Province Québec shows that both systems can co-exist. The common law and the civil law system do not conflict with each other; rather, they influence each other positively. Therefore, a future development towards a unified legal system throughout the world seems very unlikely. However, unification is aimed for in certain areas, but is carried out by unifying the rules of law. For instance, international treaties such as the United Nations Convention on Contracts for the International Sale of Goods are concluded to provide a uniform law in the area of the commercial sales of goods.[238] Moreover, model laws without binding force are elaborated to initiate similar development in certain areas of law.[239] Even within the European Union, the aim is not to unify the civil and the common law systems into one legal system. Rather, the legal systems of the different countries are preserved, and the law and legal structures of the European Union are implemented as prevailing over the national law by way of several treaties. Unification of law is then achieved by regulations which have legal force in all countries; directives which have to be implemented by the countries in their national systems and the judicature of the European Court of Justice.[240] These examples show the general intention is not to create one unified legal system for the world, which might also be impossible to enforce, but to agree on the content of law to facilitate and support global business. All in all, the different legal systems provide effective systems to adapt to future developments. They will continue to exist; even when they might come closer the different roots will remain. Furthermore, the global context does not force the establishment of a uniform system, because a harmonious co-existence of the legal systems is possible. However, some unification will take place along with the globalisation of business conduct. The aim should be to unify the content of law while retaining the different legal systems.

[*] Tina Kaske has returned to Germany to complete her professional training for practice as a lawyer in that jurisdiction. This paper was written as part of the requirements for the LLM.

[1] International Private Law provides mechanisms, such as international treaties, which try to solve conflicts of law occurring in international transactions. However, in this paper, the emphasis will be on the mechanisms of the different legal systems in solving conflicts of law and not on the law itself, which has to be applied to a specific situation.

[2] PA Joseph, Constitutional and Administrative Law in New Zealand (2nd ed, 2001) 1; M McDowell and D Webb, The New Zealand Legal System — Structures, Processes and Legal Theory (2nd ed, 1998) 97, 98.

[3] Joseph, above n 2, 3; R D Mulholland, Introduction to the New Zealand Legal System (9th ed, 1999) 33. The Bill of Rights Act 1688 (UK) was implemented into New Zealand law by the Imperial Laws Application Act 1988.

[4] Joseph, above n 2, 475.

[5] [1976] 2 NZLR 615, 622.

[6] Constitutional Conventions are common principles, which can only be enforced after a reference to them was made in a statute.

[7] Joseph, above n 2, 1; Mulholland, above n 3, 30.

[8] Joseph, above n 2, 13; Mulholland, above n 3, 13; I Eagles, L Longdin, R Grantham, W Mapp, C Cripps, G Gunasekara, M Prasad and L Brown, Law in Business and Government in New Zealand (2nded, 1996)40.

[9] Joseph, above n 2, 16.

[10] Therefore, a two-thirds majority vote of the Parliament or a referendum of the subjects of New Zealand giving its approval is necessary to change parts of the Electoral Act 1993 (NZ).

[11] Joseph, above n 2, 16.

[12] McDowell and Webb, above n 2, 159.

[13] Ibid 160.

[14] Eagles, Longdin, Grantham, Mapp, Cripps, Gunasekara, Prasad and Brown, above n 7, 43.

[15] Joseph, above n 2, 475.

[16] J F Burrows, Statute Law in New Zealand (2nd ed, 1999) 15.

[17] McDowell and Webb, above n 2, 70.

[18] Daly v Cannon [1954] 1 All ER 315, 316; Auckland City Council vGlucina [1997] 2 NZLR 1, 4; McDowell and Webb, above n 2, 301.

[19] New Plymouth Borough v Taranaki Electric Power Board [1933] NZLR 1128, 1130; Burrows, above n 16, 187.

[20] R v Federal Steam Navigation [1974] 1 WLR 505, 524.

[21] Heydon's case (1584) 76 ER 637, 638; R v Clayton [1973] 2 NZLR 211, 214; R v Salmond [1992] 3 NZLR 8, 13.

[22] Burrows, above n 16, 108.

[23] Ibid.

[24] Abrahams v Cavey [1968] 1 QB 479, 485.

[25] Prior v Sherwood [1906] ArgusLawRp 57; (1906) 3 CLR 1054, 1058.

[26] Director of Public Prosecutions v Schildkamp [1971] AC 1, 28.

[27] Police v Emirali [1976] 2 NZLR 476, 480.

[28] Northland Milk Vendors Association Inc. v Northern Milk Ltd [1988] 1 NZLR 530, 537.

[29] Burrows, above n 16, 153-4.

[30] Te Waka Ki Ika TeArawa v Treaty ofWaitangi Fisheries Commission [1999] NZCA 232; [2000] 1 NZLR 285, 300.

[31] Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523, 580.

[32] Newton King v Whitcombe [1923] NZGazLawRp 122; [1924] NZLR 517, 519.

[33] J Burrows and J Fogarty QC, Statutory Interpretation (2001) 17; Marac Life Assurance Ltd v Commissioner of Inland Revenue [1986] 1 NZLR 694, 701.

[34] R v Rangi [1992] 1 NZLR 385, 389.

[35] Quilter v Attorney General [1997] NZCA 207; [1998] 1 NZLR 523, 576.

[36] Burrows and Fogarty, above n 33, 29.

[37] Burrows, above n 16, 368. The case Foodstuffs (Auckland) Ltd v Commerce Commission & Progressive Enterprises Ltd (19.9.01, CA 16, Gault J, Thomas J, Keith J, Blanchard J, McGrath J) para 7 stated in this context that section 7 of the Interpretation Act 1999 (NZ) can also be put positively so that enactments in general have prospective effect.

[38] R v Pratt [1990] 2 NZLR 129, 133. R v Pratt [1990] 2 NZLR 129, 133.

[39] Burrows, above n 16, 359.

[40] Ibid 212.

[41] Ibid 369.

[42] Ibid 317.

[43] McDowell and Webb, above n 2, 320.

[44] Ibid.

[45] Day v Mead [1987] NZCA 74; [1987] 2 NZLR 443, 450; L v Police [2000] 2 NZLR 298, 302-3; Burrows and Fogarty, above n 33, 20.

[46] R v Secretary of State for the Home Department; Ex parte Simms [1999] UKHL 33; [1999] 3 All ER 400, 412; Choudry v Attorney-General [1999] 2 NZLR 582, 601.

[47] Burrows and Fogarty, above n 33, 21-2.

[48] National Bank v Waitaki International Processing (NI) Ltd [1999] 2 NZLR 211, 232.

[49] Barlow v Humphrey [1990] NZHC 49; [1990] 2 NZLR 373, 376; Burrows and Fogarty, above n 33, 22-3. Therefore, s 17 (2) ofthe Interpretation Act 1999 (NZ) applies only where legislation abrogates a common law rule.

[50] R Cross and J W Harris, Precedent on English Law (4th ed, 1991) 168.

[51] Ibid 168-9.

[52] D Keenan, English Law (13th ed, 2001) 14.

[53] McDowell and Webb, above n 2, 87-8.

[54] Cross and Harris, above n 50, 171-2.

[55] Eagles, Longdin, Grantham, Mapp, Cripps, Gunasekara, Prasad and Brown, above n 8, 20.

[56] McDowell and Webb, above n 2, 127-8.

[57] Ibid 138.

[58] Ibid 88.

[59] Woods v N J Ellingham & Co Ltd [1977] 1 NZLR 218, 220.

[60] Keenan, above n 52, 14.

[61] Egerton v Harding [1974] 3 WLR 437, 440.

[62] McDowell and Webb, above n 2, 88.

[63] Ministry of Justice, He Hinatore ki te Ao Maori — A Glimpse into the Maori World (2001) 5.

[64] McDowell and Webb, above n 2, 88; Eagles, Longdin, Grantham, Mapp, Cripps, Gunasekara, Prasad and Brown, above n 8, 20.

[65] 4 Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680, 692-3.

[66] Ibid 692.

[67] An example of an intolerable customary right would be the custom 'utu', which means reciprocity including revenge.

[68] McDowell and Webb, above n 2, 88.

[69] W Morrison, Blackstone 's Commentaries on the Laws of England — Volume I (2001) 63-4; B A Garner, Black's Law Dictionary (7th ed, 1999) 270.

[70] McDowell and Webb, above n 2, 60, 69.

[71] P Spiller, J Finn and R Boast, A New Zealand Legal History (1995) 75; McDowell and Webb, above n 2, 60.

[72] J H Baker, An Introduction to English Legal History (3rd ed, 1990) 14.

[73] J Ponting, Oxford Legal Studies - Study Dictionary (1998) 36.

[74] G E Dal Pont and D R C Chalmers, Equity and Trusts in Australia and New Zealand (2nd ed, 2000) 3; Baker, above n 72, 124.

[75] Baker, above n 72, 132.

[76] Ibid. Ponting, above n 73, 36.

[77] Aquaculture Corp v NZ Green Mussel Co Ltd [ [1990] NZCA 360; 1990] 3 NZLR 299, 301; Mouat v Clark Boyce [1992] 2 NZLR 559, 566; TV 3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 435, 438.

[78] Mulholland, above n 3, 216.

[79] D M Walker, The Oxford Companion to Law (1980)1033.

[80] Mulholland, above n 3, 182.

[81] Walker, above n 79, 1033. An example is Matheson v Northcote College Board of Governors [1975]2NZLR106, 115-6.

[82] A L Goodhart, Essays in Jurisprudence and The Common Law (1931) 25.

[83] Walker, above n 79, 897.

[84] McDowell and Webb, above n 2, 345.

[85] Donoghue v Stevenson [1932] AC 562, 612.

[86] McDowell and Webb, above n 2, 346.

[87] Ibid 348.

[88] Ibid.

[89] This issue also arises where the wording of statutes is vague or ambiguous. Therefore, the following means of reasoning also applies in relation to statutory interpretation.

[90] Cross and Harris, above n 50, 186.

[91] Ibid 192, 195.

[92] Mulholland, above n 3, 186.

[93] Cross and Harris, above n 50, 192.

[94] Matheson v Northcote College Board of Governors [1975] 2 NZLR 106, 118.

[95] Ibid.

[96] Ibid 117, 118.

[97] Walker, above n 79, 1774.

[98] Ibid.

[99] The New Zealand Council of Law Reporting Act 1938 (NZ) s 12(1).

[100] McDowell and Webb, above n 2, 353.

[101] Mulholland, above n 3, 80.

[102] Eaton Baker v R [1975] AC 774, 787-8. This point is expressly discussed in this case.

[103] Re Rayner, Daniell v Rayner [1947] NZGazLawRp 143; [1948] NZLR 455, 507-8.

[104] Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293, 300.

[105] Arataki Properties Ltd v Craig [1986] 2 NZLR 294, 298; Dahya vDahya [1991] 2 NZLR 150, 156-7.

[106] M Chetwin and S Graw, An Introduction to the Law of Contract in New Zealand (2nd ed, 1998) 1.

[107] Entores Ltd v Miles Far East Corporation [1955] 2 QB 16, 17.

[108] Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34, 42.

[109] Adams v Lindsell (1818) 1 B & Ald 681, 683.

[110] Dunlop v Higgins (1848) 1 HL Case 381, 397.

[111] The Household Fire and Carriage Accident Insurance Company Ltdv Grant [1879] UKLawRpExch 37; (1879) 4 ExD 216, 223; Byrne & Co vLeon Van Tienhoven & Co [1880] UKLawRpCP 10; (1880) 5 CPD 344, 348.

[112] Re London and Northern Bank, ex parte Jones [1899] UKLawRpCh 153; [1900] 1 Ch 220, 224.

[113] Holwell Securities Ltd v Hughes [1973] EWCA Civ 5; [1974] 1 All ER 161, 164.

[114] Henthorn v Fraser [1892] UKLawRpCh 52; [1892] 2 Ch 27, 37.

[115] Wenkheim v Arndt (1873) 1 N.Z. Jurist 73; A to Z Bazaars (Pty) Ltd v Minister of Agriculture 1974 (4) S.Afr. LR 392, 394.

[116] Countess of Dunmore v Elizabeth Alexandre (1830) 9 Sh. (Ct. of Session) 190, 194.

[117] Cowan v Connor [1888] UKLawRpKQB 49; [1888] 20 QBD 640, 642.

[118] Henkel v Pape [1870] UKLawRpExch 45; (1870) 6 Ex 7, 8.

[119] Entores Ltd v Miles Far East Corporation [1955] EWCA Civ 3; [1955] 2 All ER 493, 495; Brinkibon Ltd v Stahag Stahl undStahlwarenhandelsgesellschaft mbH [1983] 2 AC 34, 50.

[120] Hampstead Meats Pty Ltd v Emerson and Yates Pty Ltd [1967] SASR 109, 113.

[121] Reese Bros. Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11, 106, 6.

[122] The Electronic Transactions Bill was still proceeding through Parliament in September 2001.

[123] EuGH Neue Juristische Wochenschridt (NJW) 1999, 2355, 2356.

[124] W-H Roth, 'The Application of Community Law in West Germany: 1980 - 1990' (1991) 28 Common Market Law Review 137, 141.

[125] N G Foster, 'The German Constitution and E.C. Membership' [1994] Public Law 392, 394.

[126] P Bassenge, G Brudermüller, U Diederichsen, W Edenhofer, H Heinrichs, A Heldrich, H Putzo, H Sprau and H T Palandt-Bürgerliches Gesetzbuch homas, (59th ed, 2000) 5.

[127] N G Foster, German Legal System & Laws ( 2nd ed, 1996) 69, 76.

[128] The Bundesverfassungsgerichtsgesetz Act 1951 (Germany) s 31, the Act according to the Federal Constitutional Court.

[129] The Basic Law 1949 art 25.

[130] The Basic Law 1949 art 140.

[131] R Youngs, English, French and German Comparative Law (1998) 4.

[132] Foster, German Legal System & Laws, above n 127, 143.

[133] The Basic Law 1949 art 1-9.

[134] The Bundestag is the Parliament in its original form, whereas the Bundesrat is the Federal Council of Germany.

[135] The Basic Law 1949 art 79(1), (2).

[136] The Basic Law 1949 art 79(3); This article is also described as the eternity-clause of the Basic Law.

[137] Foster, German Legal System & Laws, above n 127, 155.

[138] BverfGNJW 1990, 1469, 1470; Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 227; Foster, above n 127, 156.

[139] Only s 268 of the Electoral Act 1993(NZ) provides entrenchment regarding parts of the Electoral Act 1993 (NZ).

[140] McDowell and Webb, above n 2, 35.

[141] P De Cruz, Comparative Law in a Changing World (2nd ed, 1999)91.

[142] McDowell and Webb, above n 2, 35.

[143] R Alexy and R Dreier, 'Statutory Interpretation in the Federal Republic of Germany' in N MacCormick and R S Summers (eds), Interpreting Statutes — A Comparative Study (1991)74-5.

[144] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 227; Foster, 'German Legal System & Laws', above n 127, 6.

[145] Alexy and Dreier, above n 143, 82.

[146] Foster, German Legal System & Laws, above n 127, 64.

[147] Ibid. Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 88.

[148] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 6.

[149] Ibid 6.

[150] Ibid.

[151] Foster, German Legal System & Laws, above n 127, 64.

[152] Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 87.

[153] Foster, German Legal System & Laws, above n 127, 64.

[154] Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 88.

[155] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 6-7.

[156] Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143,110.

[157] Bürgerliches Gesetzbuch 1896 (BGB).

[158] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 6.

[159] Ibid 7; Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 89.

[160] The analogy of a provision means that a single rule is applied to a similar situation which is not directly applicable.

[161] An analogy of law means that a principle of law supported by several rules is applied to similar cases.

[162] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 7.

[163] For a definition of both forms of reasoning, see above Part II, 'Common Law'.

[164] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 7; BGH, NJW 1989, 460, 461.

[165] Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 99.

[166] Ibid.

[167] Articles 1 to 20 and 103, of which many are common human rights, and the state principles set up in article 20 Basic Law.

[168] The Basic Law art 103 (2).

[169] Foster, German Legal System & Laws, above n 127, 68.

[170] De Cruz, above n 141, 80.

[171] Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 59.

[172] Youngs, above n 131, 56.

[173] Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 60.

[174] Ibid 59.

[175] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 4.

[176] This was the case regarding the law of breach of duty at the time of contracting. The court decided that a person should gain compensation for loss if another person caused this loss at the time of contracting. At that time, this rule was considered as acknowledged customary law by the courts: BGH, NJW 1979, 1983, 1983.

[177] Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 59.

[178] Ibid 60; Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 4.

[179] See above Part II, 'Customary Law'. Generally, the reign of Richard I (from 1189 onwards) is considered to be decisive.

[180] Woods v N J Ellingham & Co Ltd [1977] 1 NZLR 218, 220.

[181] Foster, German Legal System & Laws, above n 127, 4.

[182] The Basic Law art 20(3).

[183] Foster, German Legal System & Laws, above n 127, 61-2.

[184] Ibid 61.

[185] See above Part III, 'Statutes'.

[186] Youngs, above n 131, 50.

[187] BGHNJW 1981, 1726, 1727; BGHNJW 1988, 2109, 2110.

[188] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 7.

[189] For instance, the Federal Court of Justice in Civil Matters decided the scope of section 181 of the Civil Code has to be restrained in accordance with fulfilling the purpose of the legislature: BGHZ 56, 97, 101. An example for an extending gap-filling is the establishment of the legal principle regarding the positive violation of a claim. See Alexy and Dreier, 'Statutory Interpretation in the Federal Republic of Germany', above n 143, 81-2.

[190] BVerfGE 34, 269, 287.

[191] BGHNJW 1994, 852, 855.

[192] Bundesverfassungsgerichtsgesetz.

[193] R Alexy and R Dreier, 'Precedent in the Federal Republic of Germany' in N MacCormick and R S Summers (eds), Interpreting Precedents —A Comparative Study (1997) 36.

[194] Foster, German Legal System & Laws, above n 127, 4.

[195] Ibid 62.

[196] Youngs, above n 131, 54.

[197] Oberlandesgerichte.

[198] Foster, German Legal System & Laws, above n 127, 63.

[199] Ibid.

[200] Alexy and Dreier, 'Precedent in the Federal Republic of Germany', above n 193, 34.

[201] Landgericht.

[202] Amtsgericht.

[203] Alexy and Dreier, 'Precedent in the Federal Republic of Germany', above n 193, 36.

[204] Ibid 30.

[205] De Cruz, above n 141, 314.

[206] Foster, German Legal System & Laws, above n 127, 235.

[207] Ibid 240.

[208] Ibid 240-1.

[209] Youngs, above n 131, 351; Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 102. This rule is consistent with section 147 (1) where it is stated that such an offer can only be accepted immediately.

[210] BAGNJW 1979, 1651, 1651. Youngs, above n 131, 351.

[211] Foster, German Legal System & Laws, above n 127, 240. This rule stands in line with section 147 (2) of the Civil Code, which states that an offer made inter absentes can only be accepted until the offeror can expect the acceptance to be received.

[212] BAGNJW 1979, 1651, 1652.

[213] BGH NJW 1995, 665, 667.

[214] Bassenge, Brudermüller, Diederichsen, Edenhofer, Heinrichs, Heldrich, Putzo, Sprau and Thomas, Palandt, above n 126, 103.

[215] MLUltsch, 'ZugangsproblemebeielektronischenWillenserklärungen—DargestelltamBeispiel der Electronic Mail' [1997] NJW 3007, 3008.

[216] BGH NJW 1979, 2032, 2033.

[217] Ibid 104.

[218] See above Part II, 'Common Law'.

[219] K Zweigert and H Kötz, Introduction to Comparative Law - Volume I (2nd ed, 1987) 271.

[220] W Oehler, 'Working with a Code: Is There a Difference between Civil-Law and Common-Law People?' [1997] University of Illinois Law Review 711, 716.

[221] For instance, sections 361a and 36 1b of the German Civil Code state in detail the right of revocation in consumer contracts.

[222] See above Part III, 'Statutes' and 'Customary Law'.

[223] D Jenesse, The Indians of Canada (4th ed, 1958) 138.

[224] H P Glenn, 'Québec: Mixité and Monism' in E Örücü, E Attwooll and S Coyle (eds), Studies in Legal Systems: Mixed and Mixing (1996) 4.

[225] G L Gall, The Canadian Legal System (4th ed, 1995) 214.

[226] Ibid 217.

[227] Glenn, above n 224, 5.

[228] D Le May, 'The Québec Legal System: An Overview' (1992) 84 Law Librarian Journal 189, 190.

[229] J-G Castel, The Civil Law System of the Province of Québec — Notes, Cases and Materials (1962)229.

[230] Gall, above n 225, 221. AH Young, 'Stare Decisis - Québec Court of Appeal - Authority v. Persuasiveness: Lefebvre c. Commission des Affairs Sociales' (1993) 72 Canadian Bar Review 91,98.

[231] Glenn, above n 224, 5.

[232] The civil procedure is ruled by the Civil Procedure Act 1965, but within a common law court structure.

[233] Glenn, above n 224, 6.

[234] Canadian National Railway Co. v North Pacific Steamship Co Ltd (1992) 91 DLR (4th) 289 (SCC) 323.

[235] J E C Brierly, 'The Renewal of Québec's Distinct Legal Culture: The New Civil Code of Québec' (1992) 42 University of Toronto Law Journal 484, 485.

[236] Glenn, above n 224, 15.

[237] De Cruz, above n 141, 107, 116.

[238] Here, the signing countries have to implement the treaty provisions in their law without any amendments or other changes.

[239] For instance, the United Nations Commission on International Trade Law (UNCITRAL) elaborated a Model Law on Electronic Commerce, which provides suggestion on how to rule this area of law.

[240] N Burrows, 'European Community: The Mega Mix' in E Örücü, E Attwooll and S Coyle (eds), Studies in Legal Systems: Mixed and Mixing (1996) 308, 309.

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