Making Commercial Law: Essays in Honour of Roy Goode

By Ross Cranston; Royston Miles Goode | Go to book overview

1
The Legacy of History on German Contract Law

GERHARD DANNEMANN AND BASIL MARKESINIS

Professor Goode's career is not, generally, seen as one primarily dedicated to the study of foreign and comparative law. Yet he has, arguably, done more than many 'professional' comparatists to encourage the study of this branch of the law. Thus, his Centre for Commercial Law Studies at Queen Mary and Westfield College, London, was always keen to make use of foreign material and to foster greater cooperation between European, American, and Commonwealth lawyers; and his contribution in setting up the Oxford Centre for the Advanced Study of European and Comparative Law, though not yet recorded in public, was crucial. Neither of us in fact would be in Oxford if it were not for his exertions, so both of us feel doubly indebted to the scholar and the legal visionary honoured by this volume. This essay is an inadequate acknowledgment of our debt; and it is offered as a small contribution towards the wider goal of greater understanding between lawyers -- academics and practitioners -- of different countries which Professor Goode has always tried to promote.


A. Preliminary Observations1

In his famous Hamlyn lectures, delivered precisely 40 years ago, the late Lord Devlin argued that 'it is impossible to understand any English institution of any antiquity unless you know something of its history'.2 His

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1
The best accounts of the topics discussed in this paper can be found in the classic works of W. Flume, Allgemeiner Teil des bürgerlichen Rechts, Bd 2, 3rd edn. ( 1979); K. Larenz, Allgemeiner Teil des deutschen bürgerlichen Rechts, 7th edn. ( 1989) and Lehrbuch des Schuldrechts, vol. I, Allgemeiner Teil, 14th edn. ( 1987); and D. Medicus, Allgemeiner Teil des BGB, 6th edn. ( 1994) and Schuldrecht, vol. I. Allgemeiner Teil, 6th edn. ( 1992) and vol. II. Besonderer Teil, 5th edn. ( 1992). From the smaller books one should, perhaps, mention Hans Brox's Allgerneiner Teil des bürgerlichen Gesetzbuchs, 18th edn. ( 1994) since it is short, clear, and will appear more readable to a foreign student. Short but compact (and full of ideas) is also D. Medicus Bargerliches Recht, 16th edn. ( 1994). The literature on German legal history is vast. Heinrich Mitteis' Deutsche Rechisgeschichte ( 1949) 18th edn. (with Heinz Lieberich) ( 1988) and Deutsches Privatrecht ( 1950) 10th edn. (again, with Lieberich) ( 1988), are classics of a sort, though they approach their subject in purely Germanic terms. On the other hand Paul Koschaker's Europa und das ömische Recht ( 1947) 2nd edn. ( 1966) and Franz Wieacker Privatrechtsgeschichte der Neuzeit ( 1952) 2nd edn. ( 1967), (Eng. trans. by Tony Weir titled A History of Private Law in Europe, 1995) place German legal history firmly within the wider context of the development of modern European culture. This is also emphasized by Coing inter alia in his "Das Recht als Element der europäischen Kultur" HZ 238, 1984, 1. See also, Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition ( 1990).
2
Trial by Jury ( 1966 reprint), p. 4.

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