UNFAIR COMPETITION IN GERMANY.

[Contributed by JULIUS HIRSCHFELD, ESQ.]

Tardiness of German Legislation.-Contrary to its habitually brisk pace, German legislation had until a comparatively recent date been rather lagging behind other nations in the matter of protecting traders against unfair competition. Professor Dr. Kohler, writing fifteen years ago a treatise on the subject of trademarks, and choosing for his motto Senator Lott's dictum,1 "Honest competition relies only on the intrinsic merit of the article brought into the market, and does not require a resort to false or fraudulent device or token," pathetically exclaimed: "If German jurisprudence would tread the hydra of disloyal competition on the head as vigorously as the English, the Anglo-American, the French, and the Italian do, then will come the time when German industry will raise its head and enter the market as a world power." The learned professor's longing has since then been more than realised—at least as far as the legal aspect is concerned. The Trademarks Act of 1894, in one or two of its sections, had already foreshadowed the firm determination of the Legislature to check unfairness in competition, and it has been followed by an Act of 1896 dealing with the subject in a truly resolute manner.

The Trademarks Act, 1896: Fraudulent Advertisements.-The predominant feature of the new law is its severe treatment of false and fraudulent advertisements (Reclame-Schwindel): "Every person who, in respect of business matters generally, in particular the quality of goods, the mode of their manufacture, exceptional price quotations for goods, or work to be done, the way in which they were bought or the place they came from, the holding of medals, etc., the occasion for or object of the sale, shall, by public advertisements or communications intended for a larger number of persons, make false statements calculated to give the appearance of an especially favourable offer, is liable to an injunction at the instance of any one trading in goods of the same or a cognate kind or of incorporated societies formed for the promotion of commercial interests. Damages may be claimed in cases where the advertiser knew that the representations were false, and damages may also be claimed against editors, publishers, printers, and vendors of periodicals acting mala fide. Illustrations calculated to Taylor v. Carpenter Cox, American Trademark Cases, p. 56.

1

deceive are to be dealt with in the same manner. In addition to such civil proceedings, a mala-fide advertiser is liable to a fine not exceeding £75In case of repeated offences against this Act he may, in addition to the fine, be sentenced to a term of imprisonment not exceeding six months." 1

Employé betraying Secrets.-Another section which may interest 2 English readers is to this effect: "An employé, workman, or apprentice who during the currency of his employment betrays his master's business or trade secrets in the interest of a competitor, or in order to injure his employer, is liable to a fine not exceeding £150 or a term of imprisonment not exceeding one year. Every person who takes advantage of such communications for the purpose of unfair competition, or who becomes possessed of such knowledge by unlawful or immoral means, is equally punishable." 3 Reciprocity towards Foreigners. There is, lastly, the reciprocity principle as regards foreigners, which is hardly ever absent from modern German enactments.

Agreements with Employés in Restraint of Trade: Time Limit.—In conclusion I may observe that the new German Commercial Code contains a provision whereby an agreement between a master and an employé, stipulating for non-competition on the part of the latter, is only valid for three years after the termination of such relationship.

1 A few instances culled from theory and practice will give an idea of the scope of this provision: A hosier displaying in his shop-window weaving implements, implying thereby that he is himself the manufacturer of the article he sells; a dealer in amber having in his window illustrations of amber dredging or digging operations implying that he carries on that industry himself; a tobacconist exhibiting representations of American tobacco plantations, whilst only selling German-grown tobaccos;-all these will come within the pale of the law. Other cases are: Misstatements as regards the extent of the circulation of a newspaper; a dentist advertising painless dentistry; a quack safe cure; misstatements as to patent medicines (Geheimmittel)—performances in hypnotism or magnetism belong to the same category; a tradesman falsely using the attribute "by appointment," or misstating the age of his business. Another class of fraudulent representations would be untrue statements that the stock of a bankrupt, goods from a deceased person's estate, or bought at a compulsory sale by auction are being offered. 2 I limit myself to such provisions as are foreign to English law.

* Even an attempt to induce an employé, etc., to betray secrets is punishable. All the offenders are also liable to damages or fines.

THE

ENGLISH

STATUTE

BOOK.

[Contributed by SIR COURTENAY ILBERT, K.C.S.I.]

WHAT is the English Statute Book? What are its contents? Where are they to be found? How are they arranged? What facilities are there for ascertaining the enactments which have been made on a given subject, and the extent to which they are in force? The object of this chapter is to supply an answer to these questions.

Meaning of "Statute."-The word "Statute" is in ordinary English usage treated as equivalent to Act of Parliament, and the English Statute Book might therefore be expected to include all Acts passed by the Parliament of England, or, since the union with Scotland and Ireland respectively, by the Parliament of the United Kingdom. But the Statute Book includes certain enactments which are not, in the strictest sense, Acts of Parliament, and excludes certain enactments which are. When Parliament was first taking shape as a legislative body, laws were made, not by the King, Lords, and Commons in Parliament assembled, but by the king, with the counsel and assent of the great men of the realm; and the legislation of the reign of Henry III., and most of that of Edward I., was the work of assemblies to which the Commons were not summoned. The line between Royal Ordinances and Acts of Parliament is not easy to draw in the first stages of Parliamentary legislation, and some of the most important among the early enactments in the English Statute Book, including the Statute "Quia Emptores," would not comply with the tests applied to a modern Act of Parliament. On the other hand, the ordinary editions of the "Statutes at large" exclude numerous Acts of Parliament as being either local or private. The line between general and local, public and private, Acts has been drawn variously at different times, and will be referred to hereafter. For the present, the Statute Book will be treated as including only the public general Statutes.

Statutes of the Realm. The first edition of the English Statutes which was at once authoritative and collective was that commonly known as the Statutes of the Realm. The Parliament of 1800 (the Parliament which passed the Act of Union with Ireland) devoted much attention to the condition of the public records, and a Select Committee of the House of 'This phrase appears to occur first in one of the Elizabethan editions of the Statutes, that by Barker.

Commons presented a report on this subject on July 4th, 1800. One of the conclusions arrived at in this report was that it was highly expedient for the honour of the nation and the benefit of all Her Majesty's subjects that a complete and authoritative edition of all the Statutes should be published. The report of the committee was followed by an address to the Crown, which led to the appointment of the first Record Commissioners. The Commissioners at their first sitting resolved, "That a complete and authentic collection of the Statutes of the realm be prepared, including every law, as well those repealed or expired as those now in force, with a chronological list of them, and tables of their principal matters." This resolution led to the preparation of the edition entitled, "Statutes of the Realm, printed by command of His Majesty King George III., in pursuance of an address from the House of Commons of Great Britain, from original records and authentic manuscripts." This edition is in nine folio volumes, of which the first was published in 1810, and the last in 1822, and contains the Statutes from Henry III.'s Provisions of Merton (1235-6) to the last year of the reign of Queen Anne (1713). Prefixed to these Statutes, in the first volume, are prints of certain "charters of liberties," including Magna Charta, and an elaborate introduction, which, though superseded on some points by later researches, contains a large amount of interesting and valuable information on the history and condition of the English Statute Law. The introduction gives an account of the former printed collections, translations, and abridgments of the Statutes, and describes the various plans which had been proposed for an authentic publication or for a revision of the Statutes. Then, after a reference to the Charters, it describes the matters inserted in the collection of the Statutes, their arrangement, the sources from which they were taken, and the methods adopted in searching for, transcribing, collating, noting, and printing the text of the Statutes. The editors found much difficulty in determining what ought to be considered as Statutes; and the conclusion at which they ultimately arrived was to include in their edition "all such instruments as have been inserted in any general collection of Statutes printed previously to the edition by Hawkins" (published 1735), "with the addition only of such matters of a public nature, purporting to be Statutes, as were first introduced by him or by subsequent editors, and of such other new matters of the like nature as could be taken from sources of authority not to be controverted—namely, Statute Rolls, Inrollments of Acts, Exemplifications, Transcripts by Writ, and original Acts." Hence the first volume contains not only Royal enactments which are not, strictly speaking, Acts of Parliament, but sundry documents, of which both the authenticity and the claim to be considered as enactments at all are open to much doubt.1 The Acts down

See, eg, the remarks on the so-called Statute "De Officio Coronatoris," 4 Edw. I., in Pollock and Maitland, Book II., chap. ix., par. 4; and Gross, Introduction to Select Coroners' Rolls (Selden Society), p. 25.

to 1489, when the old practice of making up the Statute Roll ceased, are printed in double columns, one column containing the original Latin or Norman-French, the other the English translation, except that for the session of 1488-9 (4 Hen. VII.) both columns are in English, one printed from the Parliamentary Roll, the other from a different version contained in a book formerly kept in the Court of Exchequer at Westminster. The edition was supplemented by two index volumes. The first of these, which was published in 1824, and was called an alphabetical index, contains an alphabetical list of the subjects dealt with by the Statutes comprised in the nine volumes, giving, in connection with each subject, a short reference to the enactments dealing with it. The other, which was published in 1828, though called a chronological index, also proceeds on the basis of an alphabetical list of subjects, but gives under each subject-heading a list in chronological order of the enactments relating to it. It is really an expanded version of the alphabetical index.

Scottish Statutes.—In pursuance of a resolution passed by the Record Commission in 1807, a folio edition of the Scottish Statutes was prepared on lines resembling the English edition of the Statutes of the Realm. In order to give further time for consideration of the difficulties connected with the earlier Statutes, it was arranged that the first volume should be postponed. Accordingly, vols. 2 to 11, containing the Statutes from 1424 to 1707, the date of the union with England, were brought out in the years 1814 to 1824, whilst the first volume, containing documents of earlier date, did not appear until 1844.

Irish Statutes.-The Record Commission did not bring out any edition of the Irish Statutes, but an edition of them in twenty folio volumes had been previously printed by the King's Printer-General in Ireland, in pursuance of an order made by Lord Halifax in 1762, when he was Lord-Lieutenant of Ireland.

Editions of Statutes at Large for Period since 1713.-For the period since the reign of Queen Anne no collective edition of the English Statutes, containing repealed as well as unrepealed matter, has been published by authority. Of the editions brought out by private enterprise in the eighteenth century, the most important were those by Serjeant Hawkins (1734-5) and by Mr. Ruffhead (1762-4). These editions were regularly continued by subsequent volumes, and as they were printed from the King's Printers' copies of the Statutes their contents for the period since 1707 may be relied on as accurate; but they omit Statutes which are treated as of minor or transitory importance. Queen's Printers' copies of the nineteenth century Statutes have been published in many forms, and an octavo edition of the Acts of each session is now published by the Stationery Office within a reasonable time after the end of the session.

Chitty's "Statutes of Practical Utility."-The edition most commonly used by practising lawyers is Chitty's Statutes of Practical Utility. In this