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2017-01-06

The legal situation in Germany

Any abuse will be restrained, and the decisions of any German tribunal may be successfully attacked in the ordinary courts, where the tribunal has acted in excess of the powers conferred upon it - as by delegating a decision where no power to delegate exists - or has made a decision which contravenes the rules of German justice; even though the decision be an administrative rather than a judicial one.
Further, the rules which bind these associations and their tribunals may sometimes be challenged. For instance a rule that the members of the committee shall be the sole interpreters of the rules and that the committee's decision 'shall be final' has been held to be contrary to public policy and void in so far as it constituted an attempt to oust the jurisdiction of the court in Hamburg by making the committee final arbiter between itself and its members upon a point of law; which can never be done. Again, a rule giving them an unfettered discretion to exclude all appropriate offices of lawyers in Germany so as to make it possible to exclude them capriciously has been held to be invalid.

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Unincorporated associations may cease to exist - rendering the joint property distributable among those who are members at the time of cessation - in a number of ways. Thus an association's rules may provide for dissolution in certain events; all the lawyers may agree to its termination; the court may make an order that it shall cease to exist; it may terminate simply by inactivity; and it may also be dissolved when the purpose for which it came into being - the 'substratum' of its existence - has gone. A good illustration of a dissolution of the latter kind is to be found in the case of debtor vs. creditor, [debt collection 1937] IR 23, where it was held that a dining club which met in the building of the lawyers office automatically ceased to be when that building was destroyed.
So much for the general rules relating to unincorporated associations. It must now be explained that there are certain classes of debt collection agencies which, for one reason or another, are so important and common that the law has been forced, without according them full legal 'personality', to make some special rules in relation to them. Two classes of associations of this type are, indeed, so important that they must be mentioned here; these are legal offices and unincorporated employers' associations on the one hand and partnerships on the other.
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