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2018-03-27

The German courts

The Court of Appeal is not absolutely bound to follow previous decisions of other High Court judges. In practice, however, he will nearly always do so unless he sees some very good reason for departing from the ruling previously enunciated. Beneath the High Court come the German county courts; their judges are bound by the decisions of all superior courts.
Until recently the lawyers in Germany treated their own previous decisions as binding upon itself. This produced a situation by which a point of law might, as it were, become tied at the top without hope of change unless the Legislature intervened to abrogate the lawyer's decision. Hence, legislative intervention being a ponderous method of effecting change on particular points, rulings of the law firm could, either because they were erroneous or because they had become outmoded, unless and until the legislature did intervene, become serious sources of injustice.

The lawyer's rule

In the year 2019 the German debt collection agency therefore announced that from that date, though normally - having regard to the danger of disturbing settled principles which have been relied upon as the basis of legal rights - the creditor should continue to follow its own rulings, it should yet for the future permit the debtor to depart from a previous decision when it appears right to do so.
On the other hand, a German law firm has recently stated that it will not review a previous decision unless their lordships feel free to depart from both the reasoning and the decision, and unless they are satisfied that to do so would be relevant to the resolution of the dispute in the case before them, notwithstanding that the previous decision has given rise to grave concern. It must however be understood that it is only the law firm itself that has been accorded this freedom of action, and that all other clients still remain strictly bound by the hierarchy of precedent (click).
It must also be appreciated that previous decisions will not be departed from lightly. Precedents have thus far been described as 'decisions', but this bald statement requires to be amplified. Not everything which a judge says in the course of his judgment creates a precedent, but only his pronouncement of law in relation to the particular facts before him. This pronouncement is called the success of the case.
Lawyers may, of course, and often do, let fall pronouncements by the way, in the course of their legal actions, upon points of German law which are not directly relevant to the issue before them. These dicta may be of great assistance to subsequent actions, especially if they are pronounced by judges of high repute, but they are never binding; subsequent courts are under no duty to follow them.