All entries for Tuesday 30 March 2010
March 30, 2010
I like the approach of the BGH in the judgement of the 23rd September 1957 "The threatened wife" in determining constitutive elements of unlawfulness of a threat allowing to avoid a contract under § 123 BGB. The BGB reasons according to the very German principle of proportionality (Verhältnismäßigkeitsgrundsatz) in taking into account the values of both sides: the interests of the person whose freedom of action has been taken away and the Schutzbedürftigkeit (extent to what a person deserves protection) of the party issuing the threat. The Court also states that all circumstances which chartacterise the events which occur have to be taken into consideration. There is no rigid definition of the term unlawful threat. There are rather indices that may characterise an unlawful threat. The terms given by the BGH need further interpretation are are flexible to adapt to the actual public opinion. For example the reasonableness of the threat has to be seen "in the view of all fair-minded and right-minded persons". "Considerations of public policy" play a role rather than the question whether the legal order confers an enforceable right to the threatening person or not. Unlawful means contrary to bonos mores (morality). I think that these guidelines allow a case-to-case approach which equates to the Common Law. Thanks to the fact that the definition of "unlawful threat" underlies the content of the actual morality of the society and depends on all unique elements of a case, legal uncertainty arises to some degree, but there is also an important chance to achieve justice between the threatening and the threatened party.
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Mothers and children 1950 and 2010
The case "The young mother" decided by the BGH on the 14th of June of 1951 illustrates how a threat issued by parents against their pregnant daughter can be seen to be relativised by other person`s influence on the threatened person. And how a temporal difference of two weeks between the threat and the signing of the declaration can be the the reason to distinguish an action under § 123 BGB. I agree that in general if there is a laps of time between the two events, one might doubt the causality. But I would critisize this judgment on the basis of wrong evaluation of facts. Because a threat of this nature once spoken out by the parents does not cease to have effects on the daughter during the course of two weeks. In reality the pressure continues until the reason for the threat disappears (the abortion or adoption of the child) unless the parents change their opinion fundamentally.
However, my principal critic against the case is another, although it leads away from the original subject: The question whether the declaration to give the child free to adoption can be avoided or not due to unlawful threat issued against the mother is not the important point (though it is for the sake of an example of where there is no causal unlawful threat). What counts is the well-being of the child! Even if there was unlawful threat and causality, the child would eventually not be returned to the mother. What makes cases where children are involved so complicated is that even the natural principle saying that a child belongs to its biological mother ceases to be an absolute, imperative principle. Morally it seems unholdable to deny a mother the wish to raise her child. But what if the child has already lived for the first couple of months or years with other persons who the child regards as his or her parents? Such an emotional rupture as the complete change of the child`s keyperson in the early childhood can be as cruel as for the mother to renounce her child. The main objective should always be the well-being of the child and not the enforcement of adults`rights (neither the rights of the biological mother nor those of adoptive parents).
The case makes me think of today`s version of "The young mother": the affair "Baby Donna". A conflict between the biological mother, the couple that had been promised the baby and that had given the sperm and the couple that was going through the adoption procedure after having bought the child from its biological mother. This is an interesting case for international civil lawyers in which the norms of Brussels I about juridictional competence play a role as the parties are of different nationalities of the EU (Dutch and Belgian). "Baby Donna" is also interesting in the sense of comparative law. The case shows how citizens of the European Union benefit of their fundamental freedoms in order to derogate more restrictive norms of their Member State of origin and take the advantage of more liberal laws of another Member State. If it is difficult to find common principles of contract law, it is almost impossible for the Member States to agree upon common principles of family law. This is because family law depends directly on the cultural form of a state, on its traditions and morality and historical relationship to the church. Therefore within the EU there is a wide arrange of different legal dispositions -opposing for example conservative Italy and Ireland on the one hand to the liberal Netherlands on the other hand- as to homosexual marriage (NL), abortion (prohibited in Ireland), carrying mothers, in-vitro-fertilization, anonymous accouchement ("accouchement sous x" in F), Babyklappenregelung (D).
Leaving the European frame international comparative family law shows that adoption is prohibited in Islamic Law. At least formally because some scholars think the Qu`ran prohibits it. But adoption does exist in practice. Only not in the form of a European adoption where the child`s familiar rootes are completely replaced by the relationship to its adoptive family. The Qu`ran requires to maintain the original identity of the "adopted" child, mainly its name, as far as possible.