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Gareis: Juridical Nature of Author's Rights (1877)
Source: Digital library of the Max-Planck-Institut für europäische Rechtsgeschichte.
Citation:
Gareis: Juridical Nature of Author's Rights (1877), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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209
VI.
In an extremely important respect, German Imperial law
has recognised the individual right to life and health -
namely, by the Imperial law of 7 June 1871 on the obligation
to compensation for accidental deaths and injuries occurring
in the railway service, in the operation of mines etc. The
actions founded upon this law are of a private legal nature
and are not actually criminal lawsuits: the injured person
or, where the accident was mortal, his surviving relative(s)
may, in the case of Art. 1 sue solely on the basis of the
fact of the damage that has occurred, and even in the case
of Art. 2 no charge of malice or negligence can be made
against the person liable to provide compensation.
Conclusion.
The further elaboration of the theory of individual
rights must be interrupted here, so as not to clash with
the layout and task of this journal. Imperial legislation
hasn't provided any further private legal material which
could be used in an exposition of this category of rights,
but in terms of penal law it has made various provisions
to protect the other individual rights - the right to life,
to wholeness [of body], to the free and exclusive use of
one's faculties, and to honour. Suffice it to point out
here that the theory of private rights must and will
certainly devote much more attention to these rights than
has been the case so far. The latter must be incorporated
into the theory of the impossibility of fulfilment [of an
obligation] in the law of obligations, into the theory of
insurance, but, above all, they must be used as the basis
of the law of delict obligations. They will help to round
off and deepen the system of private law as well as that
of penal law. The theory of necessity [Notstand*] and of
self-defence cannot, in my view, dispense with the concept
of individual rights, and the same holds for the theory of
libel. Then there are a number of other questions which it
would be important to investigate applying the historical
and comparative method, such as, for example
____
[*Translator's note: "Notstand" in German law means "a
state of danger for legally protected interests from which
the person subject to the danger can escape only by doing
injury to the legally protected interests of another" - cf.
E. Haskin, "German Law and New Problems of Legislation in
Germany", Journal of Comparative Legislation and
International Law, vol.14 (1932), no.4, p.179]
No Transcription available.
Source: Digital library of the Max-Planck-Institut für europäische Rechtsgeschichte.
Citation:
Gareis: Juridical Nature of Author's Rights (1877), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
In an extremely important respect, German Imperial law
has recognised the individual right to life and health -
namely, by the Imperial law of 7 June 1871 on the obligation
to compensation for accidental deaths and injuries occurring
in the railway service, in the operation of mines etc. The
actions founded upon this law are of a private legal nature
and are not actually criminal lawsuits: the injured person
or, where the accident was mortal, his surviving relative(s)
may, in the case of Art. 1 sue solely on the basis of the
fact of the damage that has occurred, and even in the case
of Art. 2 no charge of malice or negligence can be made
against the person liable to provide compensation.
The further elaboration of the theory of individual
rights must be interrupted here, so as not to clash with
the layout and task of this journal. Imperial legislation
hasn't provided any further private legal material which
could be used in an exposition of this category of rights,
but in terms of penal law it has made various provisions
to protect the other individual rights - the right to life,
to wholeness [of body], to the free and exclusive use of
one's faculties, and to honour. Suffice it to point out
here that the theory of private rights must and will
certainly devote much more attention to these rights than
has been the case so far. The latter must be incorporated
into the theory of the impossibility of fulfilment [of an
obligation] in the law of obligations, into the theory of
insurance, but, above all, they must be used as the basis
of the law of delict obligations. They will help to round
off and deepen the system of private law as well as that
of penal law. The theory of necessity [Notstand*] and of
self-defence cannot, in my view, dispense with the concept
of individual rights, and the same holds for the theory of
libel. Then there are a number of other questions which it
would be important to investigate applying the historical
and comparative method, such as, for example
____
[*Translator's note: "Notstand" in German law means "a
state of danger for legally protected interests from which
the person subject to the danger can escape only by doing
injury to the legally protected interests of another" - cf.
E. Haskin, "German Law and New Problems of Legislation in
Germany", Journal of Comparative Legislation and
International Law, vol.14 (1932), no.4, p.179]
No Transcription available.