The sixteenth-century jurists who originally formulated these principles thought that they followed from the Aristotelian idea that no one should gain at another's expense. The law has always recognised instances of liability without fault in delict and contract. It has generally limited recovery of damages for economic harm in delict and for consequential damages in contract. This paper, first presented on 21 October 1995 at a joint seminar of the Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach of contract, considers the proposed reforms of German law in this area. The paper first surveys some of the problems of the existing law, highlighting its lack of a unitary concept of breach, gaps with regard to liability for breach of pre-contractual duties and contract modification due to change of circumstances, difficulties arising from the special treatment of sales contracts and contracts for work and labour, and the mutual exclusivity of rescission and damages.
Many difficulties arise from the operation of the law of prescription in the field.
It is observed that the Vienna Convention on International Sales of Goods was ratified by Germany in 1991, making it desirable for reform to be consistent with the Convention. The reform proposals put forward in 1992 include a unitary concept of breach, modification of the fault principle, priority for specific implement, adjustment of the rules on termination to permit cumulation with damages and restitution, and changes with regard to the law of sales and contracts for work and labour. If implemented these will bring the BGB into line with case-law developments as well as those in the international law of sales.