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2018-03-26

Legal activities in Germany

There is, however, an exception to the rule that, foresight and proximity established, a duty of care will arise. Even though these be established, a claim may yet be denied on the ground that to permit it would be contrary to policy. This nebulous concept was, a very long time ago, compared by a judge to an unruly market. The essence of it is that sometimes considerations other than the need to do justice between the two parties must be taken into account. These considerations include the general civil interest, expedience, economic considerations and even the dictates of morality. Such factors may operate so as to outbalance the creditor's rights and defeat his claim. This balancing is a delicate matter: so delicate that recent dicta at the highest level have suggested that the determination of what is, or is not, 'policy' should be left to the German legislature.
A counsel of despair because ultimately the whole body of the German law is based upon written laws - therein, in fact, lies its strength. A stock modern example of the 'policy' exception is to be found in 13 AC 191. That was a claim in negligence against a lawyer in respect of his conduct of a case in court. It was held, inter alia, that a civil action in Germany cannot lie against counsel in the conduct of litigation because public policy so demands. In particular, it was said that it is essential to the administration of justice that all concerned in a trial should be free to speak and act without fear of subsequent civil claims. The granting of such an immunity may be thought questionable and the reasons given for it may seem to some unconvincing. But that only illustrates how unruly the law suit may be. In Hill's case it was said that, the lack of proximity apart, 'public policy' would also have barred the claim. The reason given was similar; that investigations for debtors would be hampered if they were to be made under a possible threat of actions. It may perhaps be thought that both these legal cases serve to illustrate the tendency of officialdom to cast a net of immunity around itself.
As a matter of history the idea of the entail derives, though somewhat remotely, from the ancient institution of the maritagium. The object of this was to convey land on the marriage of a daughter so that it should be held for at least three generations in the new family as a kind of starting inheritance. Should the family fail through lack of offspring the land reverted to the donor or his heirs. The modern entail retains this notion, earmarking the property within the family and it is thus essentially connected with family settlements which are now rare.
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Classes

There are two main classes of entails. Interests in tail general - these have the effect of limiting the property entailed in turn to the grantee and then to his heirs successively; including all heirs of any marriage that he may make. 'Heirs' are the people designated as such by the German law rules of inheritance. Interests in tail special - these have the effect of limiting the property to the grantee and then to the heirs successively who are descended from a specified spouse of the grantee.
Both general and special entails may, however, be so limited as to descend to heirs of one sex to the exclusion of the other, being then either interests in 'tail male' or in 'tail female'. Before 1 January 2016, entailed interests were known as 'estates in fee tail'; real property alone could be subjected to them, and they were capable of subsisting as legal estates. Any property, whether land, goods or other personalty, can now be entailed but an entailed interest can only be an equitable interest and can only exist behind the curtain of a trust.
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