Introduction

The end of WWI led to the redrawing of European borders. Many empires collapsed and, as a result of this happening, the territories of some states were enlarged (e.g. France), some states that had been wiped out from the political map in the past were reborn (e.g. Poland) and yet some new states were created (e.g. Czechoslovakia). All of these states then faced a problem – which private law to apply on their territory. Naturally, in all of these jurisdictions, existing private law remained in use, but there was also a common tendency to unify private law (L. Górnicki, Prawo prywatne międzydzielnicowe z 1926 r., In: Okresy przejściowe – ustrój i prawo, ed. by J. Przygodzki Wrocław 2019, p. 179; R. Jastrzębski, Prawo prywatne międzydzielnicowe. Zarys problematyki, “Krakowskie Studia z Historii Państwa i Prawa”, Volume 8, Issue 3, 2015, p. 282; M. A. Zimmermann, Mezinárodní právo soukromé, Brno 1933, p. 114.). This was not exclusive to private law – it might also be said that to some extent it was valid about public law, which, however, lies beyond the limits of this blog piece. In the course of our inquiry, we focus on the development and influences of Czechoslovak private law – namely, how and why Czechoslovakia inherited and embraced Austrian and Hungarian law while trying to build its unified legal system around the first one. Czechoslovak private law  was also infused with German, Swiss, French, and Polish principles within narrow limits.  

A New State is Born

“The independent Czechoslovak state came into existence,” proclaimed the preamble of the first law of the Czechoslovak state (Law No. 11/1918 Coll.). Other than that, not only nothing was said about a Czechoslovak state and its state form, but  borders remained also undefined. However, article 2 of the said law stated that all existing local and imperial laws and regulations remained in force for the time being. This, on its own, shows the importance that the founding fathers of Czechoslovakia ascribed to law.

In comparison to Poland, Czechoslovakia was not a reborn state, but a brand new one. Exactly because of that, one would expect that it would seek to create a new legal order for itself by closely observing developments in other European states and adopting some of the solutions devised by them. However, as we shall see below, this was not the case. In spite of its position in the very centre of Europe, the Czechoslovak state sought to develop the law that it inherited from the Austrian part of the Austro-Hungarian Empire rather than to rely on contemporary developments (See S. Dnistrjanskyj, Die Rezeption des österreichischen Privatrechts in der Tschechoslowakei und in Jugoslavien, “Zeitschrift für osteuropäisches Recht”, vol. 1, iss. 9., pp. 468–470). In parallel, we shall also see that this law, by virtue of circumstances, was transplanted onto territories, which were previously part of the Hungarian Kingdom.

Czechoslovakia was a new creation formed mostly by a Czech part, which had a long history of independent statehood, but had been a part of Austria for nearly 400 years, and a Slovak state, which had never really existed as an independent entity and, for most of its history, had been a part of Hungary. These two entities formed a common state mostly due to the agreement between  representatives of their diasporas which was then supported mainly by the US and France (See The Pittsburgh Agreement). The Hungarian government, especially since the Austro-Hungarian compromise of 1867, had pursued a policy of Magyarisation (also sometimes called Hungarisation), which mostly amounted to forced assimilation of non-Hungarian minorities into Hungarian society. Only those who spoke Hungarian might have attained positions in the public administration which severely limited the opportunities for members of the other ethnic groups. Even dealing with public administration in a language different from the  Hungarian language was uncommon (For the Slovak context, see e.g. N. Jurčišinová, Context of the Slovak candidacy for members of the Hungarian parliament in the district of Giraltovce in 1906, Annales Scientia Politica, Vol. 9, Iss. 1 (2020), pp. 29–44). This naturally complicated the socio-economic as well as the cultural and political development of Slovakia as it mostly possessed only Hungarian-speaking elites. The Czechs, on the other hand, were able to use their own language vis-a-vis public administration as early as 1880 (Cf. state regulations LGBl. Böhmen Nr. 14 / 1880 and LGBl. Mähren Nr. 17 / 1880). Moreover, Slovakia was economically underdeveloped, mostly agrarian, and there were fewer Slovaks in Czechoslovakia than Germans (Cf. Article published by the Czech Statistical Office: https://www.czso.cz/csu/stoletistatistiky/cechoslovakismus-klic-k-narodnostni-strukture-noveho-statu [accessed 17 October 2023]). All these factors may explain why the role of the Slovaks in the new state, not only in general, but also when it came to recodification of law, was less pronounced than that of the Czechs.

Czechoslovakia included the Czech part, which used to be part of Austria, as well as Slovakia and Carpathian Ruthenia which both used to be parts of Hungary (for the sake of brevity, we shall further refer to both of them as Slovakia. For a short history of Carpathian Ruthenia cf. e.g., https://pravo21.cz/spolecnost/podkarpatska-rus-predstavovala-po-dve-desetileti-svebytnou-soucast-ceskoslovenska [accessed 17 October 2023]). When it came to the first part, Austrian law applied there. This was primarily the Allgemeines bürgerliches Gesetzbuch (ABGB) from 1811, the official language of which was German. There was no official Czech translation. In the second part, the applicable law was Hungarian law which was mostly customary. As a result of the treaty of Versailles (Art. 83), Czechoslovakia also received the Hlučín region of Silesia from the Reich, where German law applied. This was, however, quickly replaced by Austrian law prevailing in the rest of the Czech part (M. Starý, Právní trializmus Československé republiky: k otázce recepce německého práva, In: 100 rokov od vzniku ČSR: zborník príspevkov zo IV. ročníka medzinárodnej vedeckej konferencie “Banskobystrická škola právnych dejín”, konanej v dňoch 22.-23. marca 2018 na pôde Právnickej fakulty Univerzity Mateja Bela v Banskej Bystrici, ed. by Z. Mičková, Bánská Bystrica 2019. p. 70 and ff.). Thus, there were two, and, for a short period, three, distinctive areas where different private law applied. This constituted a problem which Interwar Czechoslovakia tried to resolve primarily by adopting a new unified civil code.

Recodification Attempts

The very second article of the above-mentioned law No. 11/1918 stated that the existing laws remained in force only for the time being, thus clearly indicating the political will to replace them with new legislation. Yet, it took until March 1920 for the first meeting on the topic to be held by the ministry of justice (P. Salák et al. Historie osnovy občanského zákoníku z roku 1937: Inspirace, problémy a výzvy, Brno 2017, p. 18). The purpose of this meeting was to decide which of the following approaches should apply:

1. A simple official translation of the ABGB into Czech and extension of its applicability to the whole of Czechoslovakia (J. Kuklík, Pokus o přijetí československého občanského zákoníku 1918–1948. In: 200 let Všeobecného občanského zákoníku, Prague 2011, p. 93; Salák, op. cit., p. 17);
2. An official translation of the ABGB into Czech with minor revisions consisting of removing obsolete provisions and taking into account the law applicable in Slovakia;
3. A brand-new civil code.

In the end, the second option was chosen (Sněmovní tisk 844. Vládní návrh zákona, kterým se vydává občanský zákoník. (Důvodová zpráva), Prague 1937, p. 236 – (Explanatory memorandum to the draft of the bill No. 844), https://digi.law.muni.cz/handle/digilaw/7035, further just “EM”). The main reason for this choice was the belief that that approach could be implemented relatively quickly (Salák, op. cit., p. 18).

From June to November 1920 five subcommittees were formed which were to revise the parts of the ABGB. The first one was tasked with revising the general part of the whole code and the general part of the obligations, the second dealt with special provisions concerning obligations, the third one with family law, the fourth one with right in rem, and the fifth one with inheritance law. Only when the work of these subcommittees was completed, a special subcommittee of Slovak lawyers was created which was supposed to review the proposals from the perspective of Slovak, or rather Hungarian law as Slovak lawyers previously refused to participate in the works for practical reasons (Salák, op. cit., pp. 19–20).

As the outcomes of the works were published in 1924 and 1925, it became clear they were rather divergent due to the different scope of changes undertaken by respective subcommittees (cf. Salák, op. cit., pp. 20–21 which also gives precise bibliographical citations of the works published). This led to the establishment of an audit committee which was supposed to somewhat unify the text. This committee submitted its draft only after five years and it became known simply as the “Draft of 1931”. Then, a public discussion followed – only in 1934 was it submitted to the government. Interministerial proceedings lasted for a year and a final redaction followed. This so-called “Draft of 1937” was then submitted to parliament on 15 April 1937, which means the work on the “minor revision” of the civil code had already lasted for more than seventeen years! The bill passed only the first reading but did not get any further due to the Munich agreement of 1938 and the subsequent collapse of Czechoslovakia on 15 March 1939.

The works then resumed after the war with the Draft of 1946 which was not adopted mainly due to the communist coup d’état in February 1948. The new communist government then passed a new civil code which became effective on 1 January 1950, finally uniting most of the Czechoslovak private law (Salák, op. cit., pp. 26–27).

Sources of Inspiration

Let us now have a look at the main sources of inspiration of the Draft of 1937 as a final product of the development described above. Since the recodification process was designed as a minor revision of the ABGB, it is obvious that the main source of inspiration was the Austrian civil code itself. Hungarian law, by contrast, played a minor role, although it was expressly the objective of the revision to include it in the new version of the code. Why was this the case? In my opinion, it has primarily to do with the composition of the subcommittees.

As already stated above, Slovakia was economically less developed than Czechia and it lacked intellectual cadres including jurists. Many Slovak lawyers were Hungarians who did not speak Slovak. In fact, there were so few of them that Czech lawyers had to be sent to Slovakia to work there as judges despite their meagre knowledge of Hungarian law (Salák, op. cit. pp. 28–30; Kuklík, op. cit., p. 93). Furthermore, as the subcommittees usually met every week and always in Prague, it was impractical for Slovak lawyers to travel there as they would also be missing on their substantially more profitable careers as practising lawyers, so those who were invited to participate in the process declined the invitation (Salák, op. cit., pp. 28–30). This also applied to professors from the second Czech university in Brno. Thus, only lawyers from Prague took part in the works. However, it is a testament to the multinational character of Czechoslovakia that two of the five subcommittees were chaired by professors from the German University of Prague, though these two naturally were fluent in Czech. It is an interesting piece of trivia that one of them was Bruno Kafka, uncle of the famous writer Franz Kafka. This national and language composition of the committees explains why the main sources of inspiration for the Draft of 1937 came from the German-speaking areas, mostly from Austria, because all the Czech lawyers who studied before the dissolution of monarchy in 1918 were essentially Austrian lawyers as they had studied in the Austrian part of the Empire. Hardly any of them would go to Hungary as it had a different legal system and even language so such studies would be useless for them.

According to Horák (O. Horák, Dějiny kodifikace soukromého práva v českých zemích. In: Občanský zákoník – velký komentář. Svazek I – § 1–117 Obecná ustanovení, ed. by F. Melzer and P. Tégl, 2013, p. XLII.) and Salák (op. cit., pp. 38–39), the explanatory memorandum lists these sources of inspiration for the revised code (the number after the hyphen indicates the number of inspirations):

Domestic regulations:

• Austrian regulations (except the ABGB) – 38
• Czechoslovak regulations – 12
• Hungarian law – 2 (according to K. Rebro, Právo obyčajové vo vládnom návrhu občianskeho zákoníka, Prague1938, vol. 19, p. 162 there were more of them)
• Hungarian outline of the Civil Code from 1913 – 7.

Foreign legislation:

• The German Civil Code (the BGB) – 23
• The Swiss Zivilgesetzbuch (ZGB) – 9 (according to L. Voslař, Dědické právo v osnově občanského zákona, “Časopis pro právní a státní vědu”, 1938, vol. 21, pp. 347–370, there were eight more in the area of inheritance law)
• The French Civil Code – 1
• Polish law –1.

Due to the limitations of length, let us have a look at only few examples. One always needs to keep in mind that the Draft of 1937 was intended just as a minor revision of the ABGB. Therefore, the systematics, terminology and most of the provisions remained the same or were just slightly altered, which means that the ABGB was the single most influential source of inspiration for the draft. Some other laws of the Austrian provenance were also taken into consideration.

The explanatory memorandum also alludes to the German Civil Code relatively often. It sometimes does so though only to show that its provisions were taken into consideration, but not followed in the end. Such is the case when it is mentioned that the draft shall not contain detailed provisions dealing with juristic persons, as the BGB does in § 21 and ff., because this issue was already addressed by other regulations (EM, p. 256). Also, the transfer of ownership according titulus and modus based on Austrian and Roman law was to be preserved instead of the principle of abstraction contained in the BGB (EM, pp. 268–269). By contrast, German law influenced the regulation of superficies rather heavily (EM, pp. 272–274).

When it comes to the Swiss Civil Code, an interesting innovation concerning easements (servitudes) was borrowed from its art. 733 according to which the owner of a property may create an easement on a property in favour of another property which he or she also owns (EM 274). This then also served as a source of inspiration for the current Czech Civil Code of 2012 which contains a similar provision in § 1301.

When it comes to other sources of inspiration, the French Code civil only inspired minor changes to the provision concerning the strict liability of an innkeeper for the goods of his guests (receptum cauponum)(EM, pp. 336–337). One might think Polish law might have served as a good source of inspiration since Poland faced similar challenges as Czechoslovakia and was more successful in solving these issues by unifying the law of obligations in 1933 (Cf. A. Grebieniow and J. Rudnicki, “A Mixed Jurisdiction in the Middle of Europe? Poland’s Interwar Experience 1918-1939”, BACL blog ). However, that was not the case. Only a single provision of the Draft of 1937 was inspired by Polish law and only in relation to terminology as it adopted a new term for a multiple pledge (EM, p. 283).

De-facto Unification

Still, some factors led to the gradual unification of the Czech and Slovak jurisdictions. First, some laws applicable only to Slovakia contained the same provisions as those of the Czech part, which led to material, yet not formal unification. Such was the case of law No. 244/1922 Col., which regulated relations between employers and employees in Slovakia and Carpathian Ruthenia (V. Dvorský, Mezioblastní právo soukromé: hranice uvnitř státu na příkladě meziválečného Československa a Polska, in: DNY PRÁVA 2019 – DAYS OF LAW 2019 Část V. – Hranice – spolupráce, spory, přesahy, ed. by L. Vojáček, P. Salák, J. Valdhans, Brno 2020, pp. 30–31, 53529 (muni.cz) [accessed 23 October 2023]). Second, Czech judges, who were sent to Slovakia, did not know much about Hungarian law and they often simply judged according to the ABGB (Kuklík, op. cit., p. 93). However, already in 1919, a new University was established in Bratislava, the capital of Slovakia, so from mid-1920s onwards, Slovakia gained a steady source of local lawyers. Despite this, in 1930, there were still nearly as many Czechs working in public administration and the judiciary as Slovaks (See J. Rychlík, Češi a Slováci ve 20. století: česko-slovenské vztahy 1914-1945, Bratislava 1997, p. 87). This naturally led to some resentment among Slovaks.

Conclusion

In the Interwar period, Czechoslovakia was unable to unite its private law, not even partially like e.g., Poland. Therefore, interregional private law was widely used (cf. Dvorský, op. cit. and V. Dvorský, Międzydzielnicowe prawo prywatne w międzywojennych Polsce i Czechosłowacji, Forum prawnicze, Volume 11, Issue 5, 2020, 9. 69–78. ISSN 2081-688X, Dvorsky.pdf (forumprawnicze.eu) [accessed 23 October 2023]).

The high watermark of the codification attempts was the Draft of 1937, which was never implemented due to external circumstances. This draft was mostly based on the Austrian Civil Code (the ABGB) which is understandable as most of its authors were Czech lawyers who were raised in Austrian times. Due to complex contextual factors highlighted above, Hungarian law had a negligible impact on the common state and its legal order – in fact, Austrian law was partially transplanted in the former Hungarian part.

As seen above, influences by foreign jurisdictions, such as Germany, France, Switzerland, and Poland, were limited. This is probably mainly due to two factors. First, the recodification was meant as a mere slight revision of the ABGB, so there was no will to introduce new foreign-inspired legal principles. Second, the absolute dominance of the knowledge of Austrian law among those who had a say in the process of recodification led to a disinterest in other possible legal solutions available through legal transfers.

Posted by Václav Dvorský, Faculty of Law of Charles University; Faculty of Law of KU Leuven. He is currently writing his doctoral thesis entitled “Depositum Irregulare and Similar Types of Deposit Contracts in Roman Law and in Later Historical Development”.

This piece belongs to Season 2 of the “Cross-jurisdictional dialogues in the Interwar period” series dedicated to less-known legal transfers which have had a palpable impact on the advancement of the law. The Interwar period was a time of disillusionment with well-established paradigms and legislative models, but also a time of hope in which comparative dialogue and exchange of ideas between jurisdictions thrived. The series is edited by Prof Yseult Marique (Essex University) and Dr Radosveta Vassileva (Middlesex University). To access the other pieces from this series, either select the ‘Interwar Dialogue’ category or click on the #Series_Interwar_Dialogue tag on the BACL Blog.

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Suggested citation: V Dvorský, ‘A House Divided: Czechoslovakia’s Long Way to United Private Law’, BACL Blog, available at https://british-association-comparative-law.org/2024/01/26/a-house-divided-czechoslovakias-long-way-to-united-private-law-by-vaclav-dvorsky.