Rosenberg’s essay is a comparative legal history of the “Spieleinwand,” the defense that a stock-exchange speculation was only a game or wager because the parties meant to settle differences, not to deliver securities or goods. Its thesis is double: prohibitions of exchange speculation repeatedly fail, yet unrestricted enforcement offends legal conscience when it aids the ruin of inexperienced outsiders. The article therefore moves from history to doctrine to reform, arguing that courts have improvised a protective fiction but that legislation must address the broker-client relation directly.
Die Geschichte der die Börsengeschäfte betreffenden Gesetzgebung ist zugleich eine Geschichte der Nutzlosigkeit dieser Gesetze, soweit sie den Börsenverkehr beschränken wollten.
English translation: The history of legislation concerning stock-exchange transactions is at the same time a history of the uselessness of these laws, insofar as they sought to restrict exchange dealings.
The historical survey supplies the negative premise. Dutch, English, Prussian, and French attempts to outlaw short sales, time bargains, premiums, or difference settlements are shown as ineffective; exchange communities evaded them or settled before their own tribunals. France becomes the central case: after the Law crash, revolutionary anti-agiotage, and the Code’s general rule on games and wagers, courts created a casuistry distinguishing the “opération sérieuse” from the “opération fictive.” The 1885 statute, born of the Union générale collapse, tried to end that casuistry; Rosenberg quotes its liberal rationale as self-help doctrine.
La loi aurait trop à faire à vouloir garantir les humains contre leur propre sottise.
English translation: The law would have too much to do if it wished to guarantee human beings against their own folly.
But Rosenberg’s deeper point is that doctrine follows moral pressure. Even after 1885 French courts tried to reopen the exception by saying that lawful term transactions were only real purchases, not disguised games. This resistance explains why the Spieleinwand returns: judges hesitate to lend state coercion to transactions they regard as socially destructive. Hence the method of inference from signs—disproportion to fortune, repeated difference settlement, prolongations, and absence of real delivery.
die ausnahmslose Klagbarkeit aller Börsengeschäfte dem Rechtsbewusstsein des Volkes und der gelehrten Richter geradezu widerspricht
English translation: the actionability without exception of all stock-exchange transactions runs directly counter to the sense of justice of the people and of the learned judges
Germany and Austria let Rosenberg examine the conceptual machinery. The older German view made only expressly delivery-free difference bargains unklagbar; after the 1891 crisis the Reichsgericht, borrowing from France, inferred tacit exclusion of delivery from circumstances, especially the speculator’s wealth and professional position. Its policy was not hostility to all speculation but a distinction between “berufene” and “Unberufene”: professional speculation may serve capital allocation, while outsiders’ play distorts prices and ruins households.
Das Börsenspiel Unberufener sollte eben hintangehalten werden.
English translation: Stock-exchange gambling by the uninitiated ought precisely to be curbed.
The Austrian discussion turns this into an inquiry into commission practice. The 1875 Börsengesetz had barred the game objection for technical exchange trades, but from 1892 the Oberste Gerichtshof used § 916 ABGB on sham transactions to pierce disguised games, especially where the broker claimed commission status while actually acting as counterparty or refusing to disclose counterparties and prices. Rosenberg does not treat all commission business as suspect: genuine execution for the client excludes the objection. His target is the broker who earns the “Schnitt,” hides the real course, then invokes self-entry.
Das pathologische Börsencommissionsgeschäft beherrscht das Verhältnis zwischen Outsider und Broker in Österreich oft in sehr bedauerlicher Weise.
English translation: The pathological stock-exchange commission business dominates the relationship between outsider and broker in Austria, often in a most regrettable manner.
The final turn is critical and legislative. Unklagbarkeit may nullify recognitions, novations, sureties, and some instruments, yet it neither deters speculation in booms nor helps in crashes; then threatened pleas of gaming deepen panic. Rosenberg therefore calls the jurisprudence a necessary but unstable emergency measure: it is economically motivated, but juristically fragile.
sie arbeitet mit einer Fiction, welche den Thatsachen in der That häufig entgegen ist.
English translation: it works with a fiction that in fact is frequently at odds with the facts.
His reform program shifts from moralized non-enforcement to market-conduct regulation: restrict broker self-entry and Coursschnitt through strict accounting, punish habitual enticement of inexperienced clients, and invalidate speculation manifestly disproportionate to a party’s fortune or profession when the other side knew or should have known. The relevance of the essay lies in this move: legitimate speculation is preserved, but predatory outsider gambling is treated as a regulatory problem.
Eine gute Gesetzgebung muss, zumal hier, sociale Hygiene und nicht Repression treiben.
English translation: Good legislation must, particularly here, pursue social hygiene and not repression.
This work was divided into 7 sections when it entered the library's research corpus—an apparatus for search and citation, not necessarily the author's own table of contents. Each title opens its summary.
Put a question to this work; the Librarian answers from its 7 sections and cites the passage.
Ask the Librarian