Legal systems as such - Case Law vs Statute Law - Court system - Judges - Lawyers

I have only a rough understanding of the English and American legal systems, but I feel that it suffices to point out some of the striking differences of the german legal system in comparison to these. At least those differences and to a degree that I feel neccessary or at least useful to put the content of this page into a legal context.

I reserve judgement on which system is "better" (--> better for *what*?), both are easily abused and can (and too often *will*) lead to spectacularly stupid results.

Legal systems, jurisprudence, as such
The first thing one must comprehend, and this goes for all legal systems, is rather profundly disillusioning, is that any legal system devised is not aimed at serving or producing justice as such, but merely that the legal system presents a process to reach a decision. This decision will be right in the sense that it will conform to the criteria and rules set fourth by its legal system, NOT right in the sense that it will be a just or even merely smart result. The best one can hope for is legal certainty, i.e. that a given legal system will reproducibly lead to the same results given the same set of facts. Again in both systems legal certainty is achieved only mostly at best, they will produce foreseeable results often but far from reliably.
Sorry for this initial general philosophic eye-opener, after you have passed this initial rant let's take a look at the different legal systems at hand.

Case Law vs Statute Law
Public knowledge has it that American and English law is a case law, and that German law is a statute law. Both legal systems are based on the law, but in the former case the law is made up of previous court decisions, and in the latter by codified, written law text.
Is this true?
Now, when people say that the American and English legal systems are case law systems then this is true in so far as they rely *primarily* on leading cases and only partly and secondarily on written legal rules, statutes. And indeed it is just the other way around in the German legal system: it is a statute law that has a clear structure of legal rules, with a set hierarchy and covering every aspect of life. However it cannot do completely without judges and therefore case law. Judges interpret the word of the law, simply because they must fit the actual facts under the abstract wording of the law, giving meaning to the often rather abstract terminology. Often (too often? - remember Montesquieu's idea of the judge who as a nondemocratic element of the state must not do more then literally apply the law text created by the democratically elected legislature) they go far beyond that and interpret the law extensively beyond (or even against) the literal meaning of the legal text.
This btw has been an increasing trend over the last years in my observation (at the same time, there is an increasing trend to have statutes and codes esp. in the English legal system thanks in a large part to the European Union and its directives that require codification for the sake of harmonized legal rules within the EU – even though this mostly merely codifies legal principles already established within the case law system).

Anyhow, in daily practice in a case law system the lawyer might cite decision so and so, "as the respected Lord Chief Justice Dredd has opined in the case of Simpson v Obama in 1948 we must …". In the German legal system the parties to a legal argument, their lawyers and ultimately the judge(s) will look up the respective statutes for their case and refer to them when arguing their case: "According to § 433 II BGB the buyer must …" 
Still, the individual words and elements of the legal text leave room for interpretation by the judge. Also a previous court decision lends weight to an argument, and in fact lower hierarchy courts are bound by the previous decisions of higher hierarchy courts, so some sort of case law and stare decisis also exists in the German legal system. Still, there is room for interpretation and argument over whether a previous court decision and hence interpretation of the law is applicable to the case at hand with its own set of facts (much as similarly an angloamerican court can deviate from stare decisis under certain circumstances).

German civil law is a law of abstraction, its civil code (BGB ) uses an abstract system that starts with general rules down to specialized rules for certain legal areas.
For example, §§ 13 and 14 BGB define the legal entities of consumer and entrepreneur. These definitions will then be used throughout the rest of the civil code.
A bit later § 278 BGB lays down the principle that the obligor is responsible for any third parties he uses to fulfill his obligations. This principle then will rule throughout the rest of the civil code, and a car vendor will be just as liable for the salesman that accidentally injures the customer by closing the door with the latter's fingers still in place, as will the master craftsmen electrician be held responsible for his employee knocking over the Chinese Ming vase while repairing the electrical wall socket.
Since in theory everything is provided for in the statutes, German contracts are typically rather short by comparison. However they are usually supplemented by generalized preformulated terms and conditions of trade ("Allgemeine Geschaeftsbedingungen" - standard business terms) used by one of the parties (usually the commercial business party) to the contract. These "terms and conditions" too have to be understandable and not too demanding of the customer against whom they are used.
The endless contract texts typically found in the American and English system would be considered unwieldy and bulky by german jurists. In fact, they border on invalidity based on their sheer volume and hence the lack of clarity and conciseness demanded by the german statutes governing the use of preformulated contractual terms, compare § 307 I 1, 2 BGB:
"Provisions in standard business terms are ineffective if, contrary to the requirement of good faith, they unreasonably disadvantage the other party to the contract with the user. An unreasonable disadvantage may also arise from the provision not being clear and comprehensible."

The respective legal sources governing the travel package contract ere foremost sections §651a to § 651m of the german civil code (BGB). You are invited to read them here.

(waiting for you to read them)

...

dum de dum...

Court system
ok, back? Let's move on then to the topic of courts. Since travel law is a civil law issue, we find ourselves within the civil jurisdiction of the ordinary courts. General entry level are the district courts (but see below). Appeals go to the regional court, a further appeal based on points of law can be made to the higher regional court.
Claims with a value in excess of 5,000 EUR initially enter at the regional court level, with appeals going to the higher regional court and yet another appeal possible based on points of law to the Federal High Court of Justice.
Beware, there is an important detail issue: if your claim is entered at the district court and the value of your claim or at least of your grievance (i.e., how much your lawsuit was not successful) is below 600 EUR, then no appeal is possible, your case ends right then and there, unless it is decided that you should be given the right to an appeal. And oh well that right can be granted solely by ... the very same district court (i.e., single judge) that has negated your claim in the first place.

!

Ok, since this value of 600 EUR is often not exceeded in travel law cases, let's take a closer look:

Judges
Now, German civil judges are basically appointed based on the grade reached in the final exam, and depending on the number of judges needed by the state (the required grade is lowered to reach the number of new judges needed in a certain year). After an initial phase of three years they are then appointed for life. German judges are independent. This means they cannot be ordered to reach a certain decision, and cannot be sanctioned or punished for whatever decisions they reach.
They can, however, be administrated, which means they can be assigned a different jurisdiction, locally or thematically. And a bad record of decisions overturned in appeals does not help to further their career to become a higher hierarchy judge (however their superiors are much more interested in a clean desktop, i.e. it is much more important to finish cases fast and not have a lot of backlog than it is to make sophisticated decisons reached through careful consideration). So there is some sort of however light incentive to at least not do an exceptionally bad job as a judge.
But if you happen to have a grumpy old district court judge who is already situated in an unpopular jurisdiction and simply doesn’t care then indeed you might have a problem. It does not suffice that the judge's decision is simply evidently wrong for everyone to see ( it wouldnt even help if the judge himself later realizes he made a wrong decision). It would have to be both blatantly wrong AND you would have to prove that the judge didn't simply make a (gross) mistake but knew his decision is wrong and knowingly made the wrong decision on purpose. Good luck with that.
In essence, below 600 EUR you are dependent on the judge's good will to do a good job. Since judges are independant this is a matter of character and how the judge sees himself. The grade reached in a final exam consisting of technically solving legal tests in my opinion does not give a reliable insight into the character of the candidate, his ethics and his willingness to reliably do a good job all his life as a judge. And just because someone passes the exam with a good grade that does not make him a better person. Luckily, most judges do have a high work ethic. But the potential fault in the system is there.


Last but not least:
Lawyers
Another major point where both systems differ considerably is the matter of lawyers, and the most important fact to remember is that basically German lawyers are essentially paid regardless of how much they work or whether they are successful or not successful at all.
Sound strange?
Well, in Germany lawyers do not work for a set proportion of the successful claim. In fact, this would have been highly illegal until just a short time ago (that rule was softened in a case of a foreign client who was from a different legal system where such agreements were usual and who had no money to hire a lawyer and hence no way to pursue his claim if he couldnt hire the lawyer with a pro rata agreement).
Instead, there are statutes regulating how much a lawyer is paid. To put it simple (in reality it isn't quite that simple actually), these statutes have tables giving certain increasing fees for certain values of the claim the lawyer has to work on. He will get a certain factor of that sum for pre-trial handling of the case, another additional one for representing the case in court, yet another one for reaching a settlement etc. - mind you, he gets that fee independent of whether he is successful or not, and basically also independent of how much work he invests, whether he writes one or two letters in preparation, or whether he will participate within the trial very actively and question the witness at length or doesn't really say a word.
To explain, the lawyer is both an attorney for his client and yet at the same time an organ within the legal system. It is felt that if the lawyer would have his fee dependant on success of the lawsuit, as a pro rata partial amount of the successful claim, he would become involved too much and be tempted to manipulate the court proceedings in an unhealthy way to ensure success instead of helping to ensure a fair and just trial. It is felt that with the current system there is a better chance that the parties' involved lawyers and the court will find out the truth and reach the right decision.
Aside from its drawbacks, which include the tendency to frivolous lawsuits, the angloamerican custom of pro rata attorney fees has the distinct advantage of being self-regulating to ensure the lawyer's interest in a success of the lawsuit and hence his commitment to the case. The German system is very much more a matter of trust, namely in the lawyers abilities and willingness to commit himself to your lawsuit. Obviously, the lawyer still has an interest to be popular with his clients by delivering solid work so there is a certain incentive at least in the long run to strive for success, he needs a good reputation to successfullystay in business. But the potential fault in the system is there, and choosing your lawyer is very much a matter of trust.

Basically anyone who passes the final exam can register with the respective bar association of his place of residence to have his license and thus become a lawyer, no further tests or exams necessary. A licensed lawyer can represent in all fields of law, independent of his knowledge or experience in that certain field of law.

Travel law cases are generally not very popular among lawyers since they are hardly cash cows; the claim values and hence respective fees are usually low compared to the work involved. They are often accepted as an entry or accompanying service within a client relationship, while the real money is made with the client's other legal issues (divorce, inheritance, business counseling, unlawful dismissal from the job, building construction faults or some such).
And while many lawyers proclaim themselves to be experts for travel law, very few lawyers actually specialize exclusively in travel law. Often they will combine this field of legal activity with another one such as traffic or employment law.