ULF MÜLLER
Your house is not your home – at least according to German Civil Law. Although it is rather difficult to infer a general concept of home for the German Law or at least Civil Law it is obvious that the distinction between house and home is necessary. To make it more difficult, this distinction is in law different to that between individual and collective home.
This article cannot illuminate all aspects of the interrelation between the idea or concept of home and the law. Up to now there is no scientific research on this topic; only restricted aspects of the relation are examined. In the context of this article some basic aspects should be highlighted with examples from German Law, especially German Civil Law. But for an intensive look on the interrelation, on the meaning of Law for “Home” and of “Home” for the law are broader projection is needed than this article could provide. Due to the limited existing research on the topic the references are rudimentary.
The concept of home is nebulous in every regard. The English word “home” includes (a) the own private house[1] as well as (b) the town or country where you live or to which you are ethnically, culturally and/or emotionally bound.[2] In German we distinguish for these two meanings between Heim and Heimat. Irrespective the conceptual differentiation “home” is at least a feeling of security and affiliation which you can find in your own or your parent’s house or in greater entities like your home (!) town or home (!) country. But “home” can also be based on ethnical, cultural or religious connections between people and a territory. “Home” is a complex and diverse concept. To go further, home is more an esoteric idea than a tangible good or concept. Therefore it is difficult, or: impossible to put “home” in a uniform legal concept.
Wisely, the German Law at all does not try to form a uniform concept for “home”. At first, there is no legal definition of “home”. At second, the law clearly distinguishes the house and the home. Moreover, the Civil Law does in most cases not accept the individual house as object of the law. The house is only seen as part of the land on which it is situated. You can own land and than you own a house as part of the land, but you cannot own a house without owning the land [3]. Therefore in German we speak of the “eigene Scholle” (“the own clod”). Only in a few provisions the house itself as building is object of legal rights or – more important – duties: essential parts of a building (Sec. 94 para. 2 BGB), liability of the building possessor (Sec. 837, 838 BGB), and personal property in parts of a house (“Wohnungseigentum”), mostly property of flats (Wohnungeigentumsgesetz).
But the German Civil Law not even has a uniform idea of Heimat. In fact, “home” is also no object of the written law. A concept of home can be seen within the entity of the Civil Law (see under C. and D.). However, some provisions show clearly that if there is “home” in German Civil Law, it is not the private house but your home town. Sec. 7 BGB reads:
“A person who settles permanently in a place establishes his residence in that place.” It is unquestioned that in this connection “place” (in German: “Ort”) is the (smallest) political community where one resides.[4] Meaning, the legally relevant residence is not your house but your community.
Nevertheless, the private house is strongly protected within the German Law. The constitution grants the inviolability and privacy of the home (Art. 13 GG[5]) as well as the property of the house (Art. 14 GG). “My home is my castle.” The Civil Law protects the property of your land (the “eigene Scholle”) and consequently your house in Sec. 903 BGB and forbids any introduction of significant imponderable substances in Sec. 906 BGB. Altogether this standard of protection can produce the feeling of security and affiliation that constitutes “home”. But it is not the legal home.
Not only is the concept of “home” itself unclear. The connection between Home and Law is unexamined at all and therefore obscure and confusing. While the importance of law for the concept of home seems quiet clear any impact from home to law is unrecognisable on first sight.
The law system is seldom considered when we think of home. We have our own or parents house in mind (individual home) or we think of landscapes, friends, Stars and Stripes or Schweinebraten (collective home). But if we realize the feeling of uneasiness and uncomfortableness that is growing at places with unknown and different law systems than in our “home country” we can guess what the knowledge of the effective law means for our feeling of security.
Home can be traced mainly to geographical and cultural roots. Thinking of home we think of places – the geographical element – to which we feel affiliate and safe. This affiliation and security is produced by cultural sameness – the cultural element. At this point the law comes in: it is one major factor in producing cultural sameness like the same language, the same religion, and the same economy for example.[6] Moreover, the law is important for the feeling of security as having a stabile legal system and being familiar with the effective legal standards is essential for feeling comfortable in a specific law system and thus in a specific place. The law system is one of many commonness of a society; the uniform law standard eases the economic and social contacts within one society. A society forms its own law system to establish it as one of its commonness.[7]
The law is important for the esoteric concept of home also in a second regard. Home is not so much a specific landscape but a specific political community or country. What makes us German, English or French is in part that we feel cultural affiliated to German, English or French culture. At least equally important is the geographic place where we are born or have our residence. The geographic element of home is naturally formed by geology and ecology for example; but in modern society geography is immanently influenced by law. Law defines the borders of countries and towns that we define as our home. Home – at least in its collective sense – is contrasted by abroad. What is “home” and what is “abroad” is separated by borders,[8] sometimes natural borders like rivers or mountains, but more and more by legally defined borders. Thus, demarcation of our “home” is more a legal than an emotional question.
As we have seen “home” is less an empiric than an emotional phenomenon. Therefore, law that deals with factual events and processes shows a somehow natural distance to the concept of “home”. Law cannot define what “home” is neither for the individual nor for the society. Thus, an influence of “home” is nearly immeasurable within the law. The term “Heimat” is – with a few exceptions in the laws of some federal states[9] - not used in German law. Particularly, law does not work with the vaguely structure figure “home” but with the more concrete and less complex units “state” and “nation”. Especially in international law, most notably in International Private Law not the affiliation to a “home” but the citizenship and the nationality are the tying moments for legal rules. All legal concepts are based upon state and nation. The emotional and spiritual dimension of “home” has no relevance for the law.
Furthermore it can be said that German law negotiates expressively the relevance of “home” for legal purposes. Contrary to the constitutions of some federal states the German constitution does not declare a “right of home”.[10] In fact, the German constitution forbids to the government, administration and courts to make any difference due to the “Heimat und Herkunft” of anyone (Art. 3 para. 1 GG, equality before the law). “Herkunft” describes as well the geographical provenance as the cultural origin. “Herkunft” as provenance and origin is mostly based on verifiable personal or familial connections between a person and a territorial region or specific culture. Thus, it is a more concrete concept than “Heimat” which means the subjective identification with a place, culture etc.
The founders of the constitutions used this duality in terms to express their suspiciousness against the deep ties between people from the same region and tribe (Landsmannschaft) that are seen as dangerous for the federal character of the German Republic. Therefore, the constitution repeats the idea of equality before the law in Art. 33 GG where it declares equal access to civic rights, duties and jobs for every German in every federal state. The suspiciousness roots in the German history: mainly in the 19th century Germany was divided in a lot of states, some of same rather small. Nevertheless, the landsmannschaftliche connections between the people from the people of the same state were rather strong and the states did not necessarily grant rights to Germans from other states.[11] In the Third Reich the Aryan “Herkunft” was necessary to get access to public jobs and – later – to hold all rights. The National Socialism overemphasised the “Home”. The fathers and mothers of the Grundgesetz tried to break up with these traditions.[12] On one hand side, the negotiation of Heimat and Herkunft in the constitution had a positive effect for the integration of the refugees of the former German countries Silesia and East Prussia in the West-German society. Nowadays the negotiation can help for the integration of immigrants in the society. On the other side, the renunciation of home in the German constitution follows a concept of geographical and cultural uprooting (“Entwurzelung”).
Some federal state constitutions – like those of Baden-Württemberg (Art. 2 Landesverfassung) and Saxonia (Art. 5 Abs. 1 S. 1 Sächsische Verfassung) – establish a “right of home”. While in Baden-Württemberg it is not formed as a subjective right but as a political programme the Saxonian constitution grants a subjective right of a concrete home “Recht auf die Heimat.” It is questionable whether this “right of home” has any enforceable content. When in Saxonia some villages had to be relocated for expanding brown coal mining areas the inhabitants could get some financial compensation and a new “home” nearby their old “home”. But they were not entitled to keep their old “home.[13]
While the German constitution denies a “right of home” it establishes the right of personal mobility within the German territory in Art 11 GG. On first sight this right confirms the model of geographical and cultural uprooting. Personal mobility means also not to rest in a specific place, most important our home. But the right of personal mobility constitutes not the duty to constant move. Instead, the right of personal mobility integrates also the renouncement of mobility, the immobility. This negative side of mobility is also protected by the constitution.[14] Immobility as a right leads to a right of residence as permanent immobility. But the right of residence in Art 11 GG does not necessarily mean residence in your (collective) home. And whether your residence is felt as “home” is more an emotional than a legal question.
The idea of home designates also the International Private Law. The International Private Law tries to find the most relevant tying moment for cross-border legal relationships. These tying moments are either the nationality of the parties – mainly for family law and the law of personal status – or their geographic residence – mainly for contracts and torts. The relevance of the geographic residence – again not the individual house but the home country – shows that people should enjoy the protection of their “home” law in cross-border relationships. The parties know their “home” law. Therefore, the tying rule of the International Private Law provides them the kind of feeling of security that can be seen as “home”.
The International Private Law provides another starting point for the concept of “home” in law. For the geographic effect of rights we distinguish the principle of universality and the principle of territoriality. The principle of universality that is applicable only to a limited number of human rights means that a right is effective all over the world.[15] The application of this principle is discussed also for copyright as the intellectual effort that is incorporated in the copyright is valid through out the world.[16] But – as a result of the territorial separation of the world according to national states – in the modern world the geographic scope of the copyright is as well as for most other rights limited to the territory of a state.[17] Herein again the idea of “home” is reflected in a legal context. Nearly every right has a “home” as it is limited to a specific territory. As a right is allocated to a person the owner of a right has a “legal home” where his rights can be located.
The cultural, social and economical separation of the world is reproduced in the system of nationally – and sometimes regionally, seldom supra-nationally – restricted laws. The geographically restricted laws are products of their society[18] and each shows specific influences of its society, culture and economic society. Some of the specifics of a law are influenced by the geographic localisation of its society. Although the cultural and geographical influences are not measurable within a law it is clear that the “collective home” is one of the pillars of the individual law. In fact, the specific cultural, social, economic and geographic influences make the difference between the laws. Only these influences that can be summarised as “home” of the society make a law system individual.
Although the German law does not establish a general “right of home” we can find the idea of individual home in some but limited legal contexts. Most prominent the German case law gives one spouse the right to exclude the lover of the other spouse from the marital home and to forbid any adultery in the marital home.[19] The spouse has no right to forbid a sexual relationship of the other spouse with a third party. Protected is only the spacious area of the marriage (“räumlich-gegenständlicher Bereich”).[20] In this spatial protection the idea of the individual home is clearly integrated.
Another example for the importance of the individual home in German Civil Law is the strong position of the lessee in contrast to the lessor of a house or a flat. The lessee is entitled to rent abatement for any defects of the house or flat (Sec. 536 BGB) and the lessor is obligated to remedy any deficiencies (Sec. 535 para. 1 BGB). Thus, the inhabitant of a flat or home should in the view of the law always have a “home, sweet home”. The lessor is not entitled to limit the contract when he wants to sell the house or flat (Sec. 566 BGB). The law gives the lessee a very strong right to remain in a house or flat he does not own.
Besides this obvious “home protection” in German law the written law itself provides some geographic concepts in which the idea of “individual home” reflects. In Sec. 269 BGB the contractual duties have to be performed at the residence of the obligor. Here the rule of Sec. 7 BGB is relevant: residence is not the individual house or flat but the political community where the residence is situated. Sec. 269 BGB describes the “place of performance” (“Leistungsort”). With this rule any contract can be located at a specific community. The obligee can not demand that the duties are performed at his place. In doubt the obligee has to move to the obligor’s place to obtain his performance. Of course the rule of Sec. 269 BGB is not applicable to any kinds of contracts. In a distant selling contract for example the dispatching of the goods to the obligee’s place is a duty of the obligor.[21] The place of performance is normally different to place of fulfilment (“Erfolgsort”) as the fulfilment of a contract is the moment when all contract duties are fulfilled (see Sec. 362 BGB). For fulfilment of all contract duties it is necessary that the obligee gets the good at his place. Meaning, the obligor has to act for the contract at his place but for fulfilment of the contract the goods or performance has to reach the obligee’s place. Therefore, in numerous cases the place of performance and the place of fulfilment diverge. The obligee’s place is relevant for the contract if according to the contract the obligor has to bring (“Bringschuld”) or to send (“Schickschuld”) the good to the obligor or to perform a service at his place. In all other cases the obligor’s place is relevant for the contract duties. In this differentiated contractual space concept we can find that the home – again home as home town – of the both sides of the contract can be the contractual place. On the other side this finding makes it clear that no other place has any relevance for a contract unless the parties have agreed otherwise.
This idea can also be found in Art 27 EGBGB where the parties of a cross-border contract can freely decide which national law should be applicable to the contract. With this choice of law the parties of the contract decide not necessary on the relevant place for the contract but normal parties will only decide on a national law that has at least a minimum contact with the contract. In the case law it is sometimes decided that the choice of law is only valid when the opted law has at least a minimum contact to the contract.[22] That decision praxis implies that the opted law must have a geographical relation to either one of the parties of the contract or to the contract object (good or performance). Although this case law is intensely dissented[23] as the relevant code does not know such restrictions it shows a deep uneasiness with contracts that cannot be legally located at a specific place.
A different geographical concept can be found in the tort law. The tort law itself does not name specific places. But the nature of most torts requires a physical relation between the protected good (e.g. life, health, personal freedom, physical property) and the violation. This physical relation must take place at a specific place (“Tatort”). Tatort can be the Handlungsort and the Erfolgsort. Handlungsort is called only the place where the violating action can be located. This is unproblematic as so far as the protected good and the violating action are at the same place as in most cases. But the protected good can also be violated by actions that take place at a greater distance. In this situation we can distinguish the Handlungsort from the Erfolgsort as the place of the effect of the violation. The differentiation is important for violations of absolute rights that have a ubiquitous nature such as the personal reputation that can be violated at any place for example by the press or in the internet.
Other geographic concepts can be found in trademark and anti trust law. Trademarks are either protected due to a registration in a national register or due to their business usage. In the first case the trademarks are geographically protected throughout the entire country where they are registered. The geographical range of protection can be wider if the registration country has concluded treaties with other states about the mutual authentication of nationally registered trademarks. As there is nowadays an intense system of bi- and multilateral treaties registered trademarks are usually protected globally. Thus, we cannot speak of a “legal home” of registered trademarks anymore. In fact this legal situation is according to the economic global usage of trademarks. For other trademarks the legal situation is totally different. They are protected solely in that geographic region (“Verkehrskreis”) where they are used in a specific business way (see Sec. 5 Nr. 3 MarkenG).[24] If a company uses its trademark only in a restricted geographical region the trademark can get protection without registration only in this region. Therefore, not registered trademarks are geographically bound to a specific region, their “home”.
In anti-trust law the geographic dimension is a key requirement for all merger cases and for all abuse of dominant position situations. This geographic dimension is marked by the economic term market (“Markt”). A merger can have anti-competitive effects only in a specific market that is defined by product and geographical criteria. A company can abuse its dominant position only in a specific market to the harm of consumers and competitors (see Sec. 19 para. 1, 2 GWB)[25]. Without a proper definition of the relevant product and geographical market it would be impossible to measure the anti-competitive effect. No company has a dominant position throughout the world. Thus, without separating the world into economical markets there will be no market dominance at all and no merger would harm the competition – competition had to be thought geographically unlimited. The dominance or the effect of a merger has to be measured from the perspective of the company in question. As normally companies start their business geographical from their domicile and their production sites and enlarge their business from this point the definition of the market leads to an individual “home market”.
But most prominent, the idea of “home” is reflected in the rules of geographical jurisdiction in Sec. 12-38 ZPO.[26] With a bunch of exceptions the general rule is that every person has to be sued at the court of their residence (see Sec. 13, 17 ZPO) which means again the political community where the individual residence is situated (Sec. 7 BGB). The defendant should have a favour defensionis.[27] He should not have the disadvantage to act at a non-resident court. The favour defensionis is necessary to construe a balance between plaintiff and defendant as the plaintiff has the opportunity to decide about when and to what extend he sues the defendant. This rule on geographical jurisdiction goes back to the Roman law principle actor sequitor forum rei. The exceptions to this rule are justified due to more expedience or prior geographical connections between the court and the case. Examples for the latter are tort law cases: the infringement – for example an accident – may not have any connections to the residences of the plaintiff or the defendant. Therefore it is more useful to let a court at the place of the accident decide (see Sec. 32 ZPO): this court has an easier access to the accident’s side, to witnesses and therefore the costs for the process at this court are lower than a process at the court at the defendant’s residence if it is different to the first.
In this outlines the connections and contacts between the idea or concept of home and the German Civil Law are only briefly illuminated. Although the entire German Law seems to be most sceptical about the emotionally laden idea of home at least in the protection of the marital house and in the general rules of geographical jurisdiction (Sec. 12, 13, 17 ZPO) the social importance and individual value of the individual home for the social integration and the personal well-being is clearly recognized. In both cases the legislator respectively the courts have seen the emotional significance of home for the individual. The other named geographical concepts in German Civil Law show also reflections of the idea home although these concepts are not obviously construed on this idea. Nevertheless, the legal localisation of a person and the geographical centralisation of its rights and legal interests are evidently intended by the German Civil Law (Sec. 7, 269, 270 BGB).
It is questionable whether a concept of legal localisation and geographical centralisation is still workable in a globalised world with growing individual mobility and decreasing local and regional ties as well of the society as of the individuals. The world-wide communication and sale of goods via the Internet seems to deny any relevance of “home” in modern law. Therefore it would be first necessary to work out the home-related concepts of the Civil Law and to analyse their impact in the modern economy and society. In a second step, it would be useful to examine the necessary impact of “home” in the Civil Law for a mobile, world-wide acting society that – as it is to assume – still will be national law. Law will only be accepted by a society as long as the society and its individuals feel comfortable with the law and safe within the law system. This feeling of comfortableness and safety is a part of “home”. Therefore, every living law needs influences by the culture and geography for which it is designated. To be short: law is a part of “home” and “home” is a necessary pillar for the individual law.
[1] "(A) house, apartment, or other shelter that is the usual residence of a person, family, or household." http://dictionary.reference.com/browse/home (last accessed August 19, 2009).
[2] "(T)he place in which one's domestic affections are centered; the place or region where something is native or most common; a person's native place or own country." http://dictionary.reference.com/browse/home (last accessed August 19, 2009).
[3] See Bürgerliches Gesetzbuch [German Civil Code]: sec. 94, para. 1 [Henceforth abbreviated as BGB].
[4] See only Palandt/Heinrichs, BGB (68th ed. 2009), § 7 para. 1.
[5] GG = Grundgesetz (German constitution).
[6] See also BGHZ 44, 46, 49-50; Friedman, Zeitschr. f. Rechtssoziologie 6 (1985), 191; v. Münch, NJW 1993, 1673 f
[7] Engel, Globale Netze und lokale Werte, in: Archiv für Presserecht 33 (2002), S. 119-128 sowie ders./u.a. Globale Netze und lokale Werte. Eine vergleichende Studie zu Deutschland und den Vereinigten Staaten, Baden-Baden (2002).
[8] See Simmel, Soziologie (1992), p. 698.
[9] For example Art. 2 Landesverfassung von Baden-Württemberg (constitution Baden-Württemberg); Sec. 1 Schulgesetz Sachsen-Anhalt (School law of Sachsen-Anhalt); Saarländisches Gesetz zum Schutz der Natur und der Heimat (Law for the protection of nature and home of the Saarland).
[10] Kimminich, Das Recht auf Heimat, 3. Aufl. Bonn 1989, S. 11-37.
[11] See Carpi, The Law Firm as the House or Home of Law in P.D. James's A Certain Justice", in: Stiersdorfer (ed.), Constructions of Home, New York (2010), p. 23-31.
[12] See for a historic analysis Schimpff/Partsch, LKV 1994, 47, 49..
[13] For this situation under Art. 11 GG Baer, NVwZ 1997, 27.
[14] See Durner, in: Maunz/Dürig, Grundgesetz, Kommentar (Stand: Aug. 2012), Art. 11 Rn. 88.
[15] See Kropholler, Internationales Privatrecht (6th ed. 2006), p. 156.
[16] Schack, Urheber- und Urhebervertragsrecht (4th ed. 2006), para. 806.
[17] Ulmer, Die Immaterialgüterrechte im internationalen Privatrecht (1975), S. 9, 38 f.; Troller, Immaterialgüterrecht Bd. I (1983), S. 134-138.
[18] See extensively Luhmann, Das Recht der Gesellschaft (1993).
[19] BGHZ 6, 360, 363 ff.; BGHZ 34, 80, 87; BGH NJW 1990, 706, 708.
[20] See also BGHZ 23, 215, 217; Smid, NJW 1990, 1344.
[21] OLG Frankfurt, NJW-RR 1989, 957; OLG Stuttgart, NJW-RR 1999, 1576.
[22] LG Düsseldorf IPRspr 1997, Nr. 32; LG Karlsruhe, IPRspr. 1999, Nr. 32A.
[23] Von Hoffmann/Thorn, Internationales Privatrecht (9th ed. 2007), § 10 para. 27; Reithmann/Martiny/Martiny, Internationales Vertragrecht (6th ed. 2004), para. 63.
[24] MarkenG = Markengesetz (Trademark Law).
[25] GWB = Gesetz gegen Wettbewerbsbeschränkungen (Anti-trust Law).
[26] ZPO = Zivilprozessordnung (Civil Process Order).
[27] BGHZ 88, 331, 335.
Reflections of “home” in German Civil Law
Your house is not your home – at least according to German Civil Law. Although it is rather difficult to infer a general concept of home for the German Law or at least Civil Law it is obvious that the distinction between house and home is necessary. To make it more difficult, this distinction is in law different to that between individual and collective home.
This article cannot illuminate all aspects of the interrelation between the idea or concept of home and the law. Up to now there is no scientific research on this topic; only restricted aspects of the relation are examined. In the context of this article some basic aspects should be highlighted with examples from German Law, especially German Civil Law. But for an intensive look on the interrelation, on the meaning of Law for “Home” and of “Home” for the law are broader projection is needed than this article could provide. Due to the limited existing research on the topic the references are rudimentary.
A. House and Home in German Civil Law
The concept of home is nebulous in every regard. The English word “home” includes (a) the own private house[1] as well as (b) the town or country where you live or to which you are ethnically, culturally and/or emotionally bound.[2] In German we distinguish for these two meanings between Heim and Heimat. Irrespective the conceptual differentiation “home” is at least a feeling of security and affiliation which you can find in your own or your parent’s house or in greater entities like your home (!) town or home (!) country. But “home” can also be based on ethnical, cultural or religious connections between people and a territory. “Home” is a complex and diverse concept. To go further, home is more an esoteric idea than a tangible good or concept. Therefore it is difficult, or: impossible to put “home” in a uniform legal concept.
Wisely, the German Law at all does not try to form a uniform concept for “home”. At first, there is no legal definition of “home”. At second, the law clearly distinguishes the house and the home. Moreover, the Civil Law does in most cases not accept the individual house as object of the law. The house is only seen as part of the land on which it is situated. You can own land and than you own a house as part of the land, but you cannot own a house without owning the land [3]. Therefore in German we speak of the “eigene Scholle” (“the own clod”). Only in a few provisions the house itself as building is object of legal rights or – more important – duties: essential parts of a building (Sec. 94 para. 2 BGB), liability of the building possessor (Sec. 837, 838 BGB), and personal property in parts of a house (“Wohnungseigentum”), mostly property of flats (Wohnungeigentumsgesetz).
But the German Civil Law not even has a uniform idea of Heimat. In fact, “home” is also no object of the written law. A concept of home can be seen within the entity of the Civil Law (see under C. and D.). However, some provisions show clearly that if there is “home” in German Civil Law, it is not the private house but your home town. Sec. 7 BGB reads:
“A person who settles permanently in a place establishes his residence in that place.” It is unquestioned that in this connection “place” (in German: “Ort”) is the (smallest) political community where one resides.[4] Meaning, the legally relevant residence is not your house but your community.
Nevertheless, the private house is strongly protected within the German Law. The constitution grants the inviolability and privacy of the home (Art. 13 GG[5]) as well as the property of the house (Art. 14 GG). “My home is my castle.” The Civil Law protects the property of your land (the “eigene Scholle”) and consequently your house in Sec. 903 BGB and forbids any introduction of significant imponderable substances in Sec. 906 BGB. Altogether this standard of protection can produce the feeling of security and affiliation that constitutes “home”. But it is not the legal home.
B. Home and Law
Not only is the concept of “home” itself unclear. The connection between Home and Law is unexamined at all and therefore obscure and confusing. While the importance of law for the concept of home seems quiet clear any impact from home to law is unrecognisable on first sight.
1. Law as basis for home
The law system is seldom considered when we think of home. We have our own or parents house in mind (individual home) or we think of landscapes, friends, Stars and Stripes or Schweinebraten (collective home). But if we realize the feeling of uneasiness and uncomfortableness that is growing at places with unknown and different law systems than in our “home country” we can guess what the knowledge of the effective law means for our feeling of security.
Home can be traced mainly to geographical and cultural roots. Thinking of home we think of places – the geographical element – to which we feel affiliate and safe. This affiliation and security is produced by cultural sameness – the cultural element. At this point the law comes in: it is one major factor in producing cultural sameness like the same language, the same religion, and the same economy for example.[6] Moreover, the law is important for the feeling of security as having a stabile legal system and being familiar with the effective legal standards is essential for feeling comfortable in a specific law system and thus in a specific place. The law system is one of many commonness of a society; the uniform law standard eases the economic and social contacts within one society. A society forms its own law system to establish it as one of its commonness.[7]
The law is important for the esoteric concept of home also in a second regard. Home is not so much a specific landscape but a specific political community or country. What makes us German, English or French is in part that we feel cultural affiliated to German, English or French culture. At least equally important is the geographic place where we are born or have our residence. The geographic element of home is naturally formed by geology and ecology for example; but in modern society geography is immanently influenced by law. Law defines the borders of countries and towns that we define as our home. Home – at least in its collective sense – is contrasted by abroad. What is “home” and what is “abroad” is separated by borders,[8] sometimes natural borders like rivers or mountains, but more and more by legally defined borders. Thus, demarcation of our “home” is more a legal than an emotional question.
2. Integration of Home in the law
As we have seen “home” is less an empiric than an emotional phenomenon. Therefore, law that deals with factual events and processes shows a somehow natural distance to the concept of “home”. Law cannot define what “home” is neither for the individual nor for the society. Thus, an influence of “home” is nearly immeasurable within the law. The term “Heimat” is – with a few exceptions in the laws of some federal states[9] - not used in German law. Particularly, law does not work with the vaguely structure figure “home” but with the more concrete and less complex units “state” and “nation”. Especially in international law, most notably in International Private Law not the affiliation to a “home” but the citizenship and the nationality are the tying moments for legal rules. All legal concepts are based upon state and nation. The emotional and spiritual dimension of “home” has no relevance for the law.
a. The negotiation of “home” in German law
Furthermore it can be said that German law negotiates expressively the relevance of “home” for legal purposes. Contrary to the constitutions of some federal states the German constitution does not declare a “right of home”.[10] In fact, the German constitution forbids to the government, administration and courts to make any difference due to the “Heimat und Herkunft” of anyone (Art. 3 para. 1 GG, equality before the law). “Herkunft” describes as well the geographical provenance as the cultural origin. “Herkunft” as provenance and origin is mostly based on verifiable personal or familial connections between a person and a territorial region or specific culture. Thus, it is a more concrete concept than “Heimat” which means the subjective identification with a place, culture etc.
The founders of the constitutions used this duality in terms to express their suspiciousness against the deep ties between people from the same region and tribe (Landsmannschaft) that are seen as dangerous for the federal character of the German Republic. Therefore, the constitution repeats the idea of equality before the law in Art. 33 GG where it declares equal access to civic rights, duties and jobs for every German in every federal state. The suspiciousness roots in the German history: mainly in the 19th century Germany was divided in a lot of states, some of same rather small. Nevertheless, the landsmannschaftliche connections between the people from the people of the same state were rather strong and the states did not necessarily grant rights to Germans from other states.[11] In the Third Reich the Aryan “Herkunft” was necessary to get access to public jobs and – later – to hold all rights. The National Socialism overemphasised the “Home”. The fathers and mothers of the Grundgesetz tried to break up with these traditions.[12] On one hand side, the negotiation of Heimat and Herkunft in the constitution had a positive effect for the integration of the refugees of the former German countries Silesia and East Prussia in the West-German society. Nowadays the negotiation can help for the integration of immigrants in the society. On the other side, the renunciation of home in the German constitution follows a concept of geographical and cultural uprooting (“Entwurzelung”).
Some federal state constitutions – like those of Baden-Württemberg (Art. 2 Landesverfassung) and Saxonia (Art. 5 Abs. 1 S. 1 Sächsische Verfassung) – establish a “right of home”. While in Baden-Württemberg it is not formed as a subjective right but as a political programme the Saxonian constitution grants a subjective right of a concrete home “Recht auf die Heimat.” It is questionable whether this “right of home” has any enforceable content. When in Saxonia some villages had to be relocated for expanding brown coal mining areas the inhabitants could get some financial compensation and a new “home” nearby their old “home”. But they were not entitled to keep their old “home.[13]
b. Legal reflections of “home”
While the German constitution denies a “right of home” it establishes the right of personal mobility within the German territory in Art 11 GG. On first sight this right confirms the model of geographical and cultural uprooting. Personal mobility means also not to rest in a specific place, most important our home. But the right of personal mobility constitutes not the duty to constant move. Instead, the right of personal mobility integrates also the renouncement of mobility, the immobility. This negative side of mobility is also protected by the constitution.[14] Immobility as a right leads to a right of residence as permanent immobility. But the right of residence in Art 11 GG does not necessarily mean residence in your (collective) home. And whether your residence is felt as “home” is more an emotional than a legal question.
The idea of home designates also the International Private Law. The International Private Law tries to find the most relevant tying moment for cross-border legal relationships. These tying moments are either the nationality of the parties – mainly for family law and the law of personal status – or their geographic residence – mainly for contracts and torts. The relevance of the geographic residence – again not the individual house but the home country – shows that people should enjoy the protection of their “home” law in cross-border relationships. The parties know their “home” law. Therefore, the tying rule of the International Private Law provides them the kind of feeling of security that can be seen as “home”.
The International Private Law provides another starting point for the concept of “home” in law. For the geographic effect of rights we distinguish the principle of universality and the principle of territoriality. The principle of universality that is applicable only to a limited number of human rights means that a right is effective all over the world.[15] The application of this principle is discussed also for copyright as the intellectual effort that is incorporated in the copyright is valid through out the world.[16] But – as a result of the territorial separation of the world according to national states – in the modern world the geographic scope of the copyright is as well as for most other rights limited to the territory of a state.[17] Herein again the idea of “home” is reflected in a legal context. Nearly every right has a “home” as it is limited to a specific territory. As a right is allocated to a person the owner of a right has a “legal home” where his rights can be located.
c. “Home” and the individuality of law
The cultural, social and economical separation of the world is reproduced in the system of nationally – and sometimes regionally, seldom supra-nationally – restricted laws. The geographically restricted laws are products of their society[18] and each shows specific influences of its society, culture and economic society. Some of the specifics of a law are influenced by the geographic localisation of its society. Although the cultural and geographical influences are not measurable within a law it is clear that the “collective home” is one of the pillars of the individual law. In fact, the specific cultural, social, economic and geographic influences make the difference between the laws. Only these influences that can be summarised as “home” of the society make a law system individual.
C. Home in the geographic concepts of the Civil Law
Although the German law does not establish a general “right of home” we can find the idea of individual home in some but limited legal contexts. Most prominent the German case law gives one spouse the right to exclude the lover of the other spouse from the marital home and to forbid any adultery in the marital home.[19] The spouse has no right to forbid a sexual relationship of the other spouse with a third party. Protected is only the spacious area of the marriage (“räumlich-gegenständlicher Bereich”).[20] In this spatial protection the idea of the individual home is clearly integrated.
Another example for the importance of the individual home in German Civil Law is the strong position of the lessee in contrast to the lessor of a house or a flat. The lessee is entitled to rent abatement for any defects of the house or flat (Sec. 536 BGB) and the lessor is obligated to remedy any deficiencies (Sec. 535 para. 1 BGB). Thus, the inhabitant of a flat or home should in the view of the law always have a “home, sweet home”. The lessor is not entitled to limit the contract when he wants to sell the house or flat (Sec. 566 BGB). The law gives the lessee a very strong right to remain in a house or flat he does not own.
Besides this obvious “home protection” in German law the written law itself provides some geographic concepts in which the idea of “individual home” reflects. In Sec. 269 BGB the contractual duties have to be performed at the residence of the obligor. Here the rule of Sec. 7 BGB is relevant: residence is not the individual house or flat but the political community where the residence is situated. Sec. 269 BGB describes the “place of performance” (“Leistungsort”). With this rule any contract can be located at a specific community. The obligee can not demand that the duties are performed at his place. In doubt the obligee has to move to the obligor’s place to obtain his performance. Of course the rule of Sec. 269 BGB is not applicable to any kinds of contracts. In a distant selling contract for example the dispatching of the goods to the obligee’s place is a duty of the obligor.[21] The place of performance is normally different to place of fulfilment (“Erfolgsort”) as the fulfilment of a contract is the moment when all contract duties are fulfilled (see Sec. 362 BGB). For fulfilment of all contract duties it is necessary that the obligee gets the good at his place. Meaning, the obligor has to act for the contract at his place but for fulfilment of the contract the goods or performance has to reach the obligee’s place. Therefore, in numerous cases the place of performance and the place of fulfilment diverge. The obligee’s place is relevant for the contract if according to the contract the obligor has to bring (“Bringschuld”) or to send (“Schickschuld”) the good to the obligor or to perform a service at his place. In all other cases the obligor’s place is relevant for the contract duties. In this differentiated contractual space concept we can find that the home – again home as home town – of the both sides of the contract can be the contractual place. On the other side this finding makes it clear that no other place has any relevance for a contract unless the parties have agreed otherwise.
This idea can also be found in Art 27 EGBGB where the parties of a cross-border contract can freely decide which national law should be applicable to the contract. With this choice of law the parties of the contract decide not necessary on the relevant place for the contract but normal parties will only decide on a national law that has at least a minimum contact with the contract. In the case law it is sometimes decided that the choice of law is only valid when the opted law has at least a minimum contact to the contract.[22] That decision praxis implies that the opted law must have a geographical relation to either one of the parties of the contract or to the contract object (good or performance). Although this case law is intensely dissented[23] as the relevant code does not know such restrictions it shows a deep uneasiness with contracts that cannot be legally located at a specific place.
A different geographical concept can be found in the tort law. The tort law itself does not name specific places. But the nature of most torts requires a physical relation between the protected good (e.g. life, health, personal freedom, physical property) and the violation. This physical relation must take place at a specific place (“Tatort”). Tatort can be the Handlungsort and the Erfolgsort. Handlungsort is called only the place where the violating action can be located. This is unproblematic as so far as the protected good and the violating action are at the same place as in most cases. But the protected good can also be violated by actions that take place at a greater distance. In this situation we can distinguish the Handlungsort from the Erfolgsort as the place of the effect of the violation. The differentiation is important for violations of absolute rights that have a ubiquitous nature such as the personal reputation that can be violated at any place for example by the press or in the internet.
Other geographic concepts can be found in trademark and anti trust law. Trademarks are either protected due to a registration in a national register or due to their business usage. In the first case the trademarks are geographically protected throughout the entire country where they are registered. The geographical range of protection can be wider if the registration country has concluded treaties with other states about the mutual authentication of nationally registered trademarks. As there is nowadays an intense system of bi- and multilateral treaties registered trademarks are usually protected globally. Thus, we cannot speak of a “legal home” of registered trademarks anymore. In fact this legal situation is according to the economic global usage of trademarks. For other trademarks the legal situation is totally different. They are protected solely in that geographic region (“Verkehrskreis”) where they are used in a specific business way (see Sec. 5 Nr. 3 MarkenG).[24] If a company uses its trademark only in a restricted geographical region the trademark can get protection without registration only in this region. Therefore, not registered trademarks are geographically bound to a specific region, their “home”.
In anti-trust law the geographic dimension is a key requirement for all merger cases and for all abuse of dominant position situations. This geographic dimension is marked by the economic term market (“Markt”). A merger can have anti-competitive effects only in a specific market that is defined by product and geographical criteria. A company can abuse its dominant position only in a specific market to the harm of consumers and competitors (see Sec. 19 para. 1, 2 GWB)[25]. Without a proper definition of the relevant product and geographical market it would be impossible to measure the anti-competitive effect. No company has a dominant position throughout the world. Thus, without separating the world into economical markets there will be no market dominance at all and no merger would harm the competition – competition had to be thought geographically unlimited. The dominance or the effect of a merger has to be measured from the perspective of the company in question. As normally companies start their business geographical from their domicile and their production sites and enlarge their business from this point the definition of the market leads to an individual “home market”.
But most prominent, the idea of “home” is reflected in the rules of geographical jurisdiction in Sec. 12-38 ZPO.[26] With a bunch of exceptions the general rule is that every person has to be sued at the court of their residence (see Sec. 13, 17 ZPO) which means again the political community where the individual residence is situated (Sec. 7 BGB). The defendant should have a favour defensionis.[27] He should not have the disadvantage to act at a non-resident court. The favour defensionis is necessary to construe a balance between plaintiff and defendant as the plaintiff has the opportunity to decide about when and to what extend he sues the defendant. This rule on geographical jurisdiction goes back to the Roman law principle actor sequitor forum rei. The exceptions to this rule are justified due to more expedience or prior geographical connections between the court and the case. Examples for the latter are tort law cases: the infringement – for example an accident – may not have any connections to the residences of the plaintiff or the defendant. Therefore it is more useful to let a court at the place of the accident decide (see Sec. 32 ZPO): this court has an easier access to the accident’s side, to witnesses and therefore the costs for the process at this court are lower than a process at the court at the defendant’s residence if it is different to the first.
D. Conclusions and Outlook
In this outlines the connections and contacts between the idea or concept of home and the German Civil Law are only briefly illuminated. Although the entire German Law seems to be most sceptical about the emotionally laden idea of home at least in the protection of the marital house and in the general rules of geographical jurisdiction (Sec. 12, 13, 17 ZPO) the social importance and individual value of the individual home for the social integration and the personal well-being is clearly recognized. In both cases the legislator respectively the courts have seen the emotional significance of home for the individual. The other named geographical concepts in German Civil Law show also reflections of the idea home although these concepts are not obviously construed on this idea. Nevertheless, the legal localisation of a person and the geographical centralisation of its rights and legal interests are evidently intended by the German Civil Law (Sec. 7, 269, 270 BGB).
It is questionable whether a concept of legal localisation and geographical centralisation is still workable in a globalised world with growing individual mobility and decreasing local and regional ties as well of the society as of the individuals. The world-wide communication and sale of goods via the Internet seems to deny any relevance of “home” in modern law. Therefore it would be first necessary to work out the home-related concepts of the Civil Law and to analyse their impact in the modern economy and society. In a second step, it would be useful to examine the necessary impact of “home” in the Civil Law for a mobile, world-wide acting society that – as it is to assume – still will be national law. Law will only be accepted by a society as long as the society and its individuals feel comfortable with the law and safe within the law system. This feeling of comfortableness and safety is a part of “home”. Therefore, every living law needs influences by the culture and geography for which it is designated. To be short: law is a part of “home” and “home” is a necessary pillar for the individual law.
[1] "(A) house, apartment, or other shelter that is the usual residence of a person, family, or household." http://dictionary.reference.com/browse/home (last accessed August 19, 2009).
[2] "(T)he place in which one's domestic affections are centered; the place or region where something is native or most common; a person's native place or own country." http://dictionary.reference.com/browse/home (last accessed August 19, 2009).
[3] See Bürgerliches Gesetzbuch [German Civil Code]: sec. 94, para. 1 [Henceforth abbreviated as BGB].
[4] See only Palandt/Heinrichs, BGB (68th ed. 2009), § 7 para. 1.
[5] GG = Grundgesetz (German constitution).
[6] See also BGHZ 44, 46, 49-50; Friedman, Zeitschr. f. Rechtssoziologie 6 (1985), 191; v. Münch, NJW 1993, 1673 f
[7] Engel, Globale Netze und lokale Werte, in: Archiv für Presserecht 33 (2002), S. 119-128 sowie ders./u.a. Globale Netze und lokale Werte. Eine vergleichende Studie zu Deutschland und den Vereinigten Staaten, Baden-Baden (2002).
[8] See Simmel, Soziologie (1992), p. 698.
[9] For example Art. 2 Landesverfassung von Baden-Württemberg (constitution Baden-Württemberg); Sec. 1 Schulgesetz Sachsen-Anhalt (School law of Sachsen-Anhalt); Saarländisches Gesetz zum Schutz der Natur und der Heimat (Law for the protection of nature and home of the Saarland).
[10] Kimminich, Das Recht auf Heimat, 3. Aufl. Bonn 1989, S. 11-37.
[11] See Carpi, The Law Firm as the House or Home of Law in P.D. James's A Certain Justice", in: Stiersdorfer (ed.), Constructions of Home, New York (2010), p. 23-31.
[12] See for a historic analysis Schimpff/Partsch, LKV 1994, 47, 49..
[13] For this situation under Art. 11 GG Baer, NVwZ 1997, 27.
[14] See Durner, in: Maunz/Dürig, Grundgesetz, Kommentar (Stand: Aug. 2012), Art. 11 Rn. 88.
[15] See Kropholler, Internationales Privatrecht (6th ed. 2006), p. 156.
[16] Schack, Urheber- und Urhebervertragsrecht (4th ed. 2006), para. 806.
[17] Ulmer, Die Immaterialgüterrechte im internationalen Privatrecht (1975), S. 9, 38 f.; Troller, Immaterialgüterrecht Bd. I (1983), S. 134-138.
[18] See extensively Luhmann, Das Recht der Gesellschaft (1993).
[19] BGHZ 6, 360, 363 ff.; BGHZ 34, 80, 87; BGH NJW 1990, 706, 708.
[20] See also BGHZ 23, 215, 217; Smid, NJW 1990, 1344.
[21] OLG Frankfurt, NJW-RR 1989, 957; OLG Stuttgart, NJW-RR 1999, 1576.
[22] LG Düsseldorf IPRspr 1997, Nr. 32; LG Karlsruhe, IPRspr. 1999, Nr. 32A.
[23] Von Hoffmann/Thorn, Internationales Privatrecht (9th ed. 2007), § 10 para. 27; Reithmann/Martiny/Martiny, Internationales Vertragrecht (6th ed. 2004), para. 63.
[24] MarkenG = Markengesetz (Trademark Law).
[25] GWB = Gesetz gegen Wettbewerbsbeschränkungen (Anti-trust Law).
[26] ZPO = Zivilprozessordnung (Civil Process Order).
[27] BGHZ 88, 331, 335.
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