Placed uniquely at the intersection of common law and civil law, mixed legal systems are today attracting the attention both of scholars of comparative law, and of those concerned with the development of a European private law. Pre-eminent among the mixed legal systems are those of Scotland and South Africa. In South Africa the Roman-Dutch law, brought to the Cape by the Dutch East India Company in 1652 was, from the early nineteenth century onwards, infused with and re-moulded by the common law of the British imperial master. In Scotland a more gradual and elusive process saw the Roman-Scots law of the early modern period fall under the influence of English law after the Act of Union in 1707. The result, in each case, was a system of law which drew from both of the great European traditions whilst containing distinctive elements of its own. This volume sets out to compare the effects of this historical development by assessing whether shared experience has led to shared law. Key topics from the law of property and obligations are examined, collaboratively and comparatively, by teams of leading experts from both jurisdictions. The individual chapters reveal an intricate pattern of similarity and difference, enabling courts and legal writers in Scotland and South Africa to learn from the experience of a kindred jurisdiction. They also, in a number of areas, reveal an emerging and distinctive jurisprudence of mixed systems, and thus suggest viable answers to some of the great questions which must be answered on the path towards a European private law.

The emergence of a European private law is a key legal issue today. Set-off and "extinctive" prescription are neglected topics in comparative literature. Reinhard Zimmermann maps out a model for a common European approach, providing practical examples of the arguments that may be employed in the process of harmonizing European private law. The essays originated during his work with the Commission on European Contract Law (the "Lando-Commission"), whose task is the "restatement" of European contract law. This volume is for comparative lawyers and legal historians.

On 1 January 2000 the German Civil Code (BGB) became one hundred years old. It had been remarkably resilient throughout a century marked by catastrophic upheavals and a succession of fundamentally different political regimes. Two years later, however, the most sweeping individual reform ever to have affected the Code entered into force. This was the Modernization of the Law of Obligations Act: triggered by the necessity to implement the European Consumer Sales Directive, but going far beyond what was required by the European Community. The most important practical implication of the Modernization Act is the fundamental reform of the German law of prescription. However, the most remarkable feature of the revised BGB in terms of innovative doctrine is the new regime concerning liability for general non-performance, and for non-conformity in sales law. Radically, the face of the BGB has been changed by the incorporation of a number of special statutes aiming at the protection of consumers. The draftsmen of the new law have thus made an effort to streamline, or harmonize, general contract law and consumer contract law. The four topics covered in Chapters 2-5 of the book are prescription, remedies for non-performance, liability for non-conformity, and consumer contract law. In all these cases a historical or comparative perspective is adopted in order to analyze and assess the new rules of German law. Even in its radically new form the German Civil Code continues to be a characteristic manifestation of German legal culture. At the same time, however, the reform has moved German contract law considerably closer to European thinking patterns. Termed 'a milestone on the path towards a European Civil Code', this book offers a unique and authoritative insight into the new German law of obligations.

By comparison with other areas of private law, the law of succession has been neglected by modern scholars. This volume contributes to its rehabilitation by examining key issues in succession law from a variety of perspectives: national, historical and comparative. In particular it seeks to extend the techniques of legal comparison into an area of law where hitherto they have been little used. The jurisdictions most prominently featured are the mixed jurisdictions of Scotland and South Africa, but there are frequent comparative references, and special attention is given to the Netherlands as the country which has most recently re-written its succession law. The authors of the individual chapters are drawn from Scotland, South Africa, Germany, Italy and the Netherlands. Among the topics covered are freedom of testation, testamentary conditions and public policy, forfeiture clauses and events, revocation of wills by changed circumstances, revocation of mutual wills, fideicommissary substitutions, and succession agreements. The volume opens with an overview of the state of comparative law and with a consideration of compulsory heirship in Roman law.

This book contains the text on which Professor Zimmermann's Clarendon Lectures at the University of Oxford in October 1999 were based.

In this book Franz Wieacker tells how legal thinking, writing and teaching started in Europe and how it developed. He begins in the High Middle Ages and describes how the Glossators laid down the foundations by applying methodical criticism and exegesis to the Digest of Justinian. As Reinhard Zimmermann's foreword shows, Wieacker's way of telling the history of European legal thought from its origins in medieval Bologna down to the present day and of elucidating the intellectual conditions for its development is a stunning achievement. One of the great strengths of the book lies in its demonstration of the constant interaction between the thinking of lawyers and the general philosophical ideas of their time: between Scholasticism and medieval legal science, between the enlightenment and the Law of Reason, between Classicism (and Romanticism) and Savigny's Historical School of Law. It is hardly surprising that so ambitious and erudite a work should have become a classic since 1952, when it was first published in German. Now Tony Weir's brilliant translation makes the seond and final edition accessible to English-speaking scholars the world over.

Intestate Succession is the second volume in the Comparative Succession Law series which examines the principles of succession law from a comparative and historical perspective. This volume discusses the rules which apply where a person dies either without leaving a valid will, or leaving a will which fails to dispose of all of the person's assets. Among the questions considered are the following: What is the nature of the rules for the disposal of the deceased's assets? Are they mechanical or is there an element of discretion? Are particular types of property dealt with in particular ways? Is there entitlement to individual assets (as opposed to money)? Do the rules operate in a parentelic system or a system of some other kind? Are spouses treated more favourably than children? What provision is made for extra-marital children, for adopted children, for step-children? Does cohabitation give rise to entitlement? How are same-sex couples treated? Broader questions also arise of a historical and comparative nature. Where, for example, do the rules in intestate succession come from in particular legal systems? Have they been influenced by the rules in other countries? How are the rules explained and how are they justified? To what extent have they changed over time? What are the long-term trends? And finally, are the rules satisfactory, and is there pressure for their reform? As in the first volume, this book will focus on Europe and on countries which have been influenced by the European experience such as Australia, New Zealand, South Africa, the United States of America, Quebec, and the countries of Latin America. Further chapters are devoted to Islamic Law and Nordic law. Opening with a discussion on Roman law and concluding with an assessment of the overall development of the law in the countries surveyed, this book will provide a wider reflection on the nature and purpose of the law of intestate succession.

Lord Rodger of Earlsferry was a distinguished judge and scholar. He was a Justice of the Supreme Court of the United Kingdom and the author of many high quality law journal articles and two books. Written in memory of Lord Rodger, this collection contains 47 essays by Lord Rodger's friends and colleagues from the UK and Europe. The essays reflect Lord Rodger's role as a leading judge and also his wide-ranging academic interests including Roman law, Scots law and legal history, and a miscellany of other topics. The authors in this volume are leading academics or judges, and a particularly notable feature is the nine essays written by Supreme Court justices. As the highest judges in the UK they provide a unique insight into the work of the Supreme Court, as well as Lord Rodger's work in the Court. The book also includes the memorial tributes to Lord Rodger which explain his remarkable legal career, including his roles as Lord Advocate (Senior Law Officer of Scotland) Lord President of the Court of Session, Lord of Appeal in Ordinary and, finally, Justice of the UK Supreme Court. The essays include personal reminiscences of Lord Rodger, helping the reader to understand why he was so highly regarded and why his untimely death has dealt such a devastating blow to law in the UK.

Launching a major new research project examining the principles of succession law in comparative perspective, this book discusses the formalities which the law imposes in order for a person to make a testamentary disposal of property. Among the questions considered are the following. How are wills made? What precisely are the rules - as to the signature of the testator, the use of witnesses, the need for a notary public or lawyer, and so on? Is there is a choice of will-type and, if so, which type is used most often and what are the advantages and disadvantages of each? How common is will-making or do most people die intestate? What happens if formalities are not observed? How can requirements of form be explained and justified? How did the law develop historically, what is the state of the law today, and what are the prospects for the future? The focus is on Europe, and on countries which have been influenced by the European experience. Thus in addition to giving a detailed treatment of the law in Austria, Belgium, England and Wales, France, Germany, Hungary, Italy, the Netherlands, Poland, and Spain, the book explores legal developments in Australia, New Zealand, the United States of America, and in some of the countries of Latin America with a particular emphasis on Brazil. It also includes chapters on two of the mixed jurisdictions - Scotland and South Africa - and on Islamic Law. The book opens with chapters on Roman law and on the early modern law in Europe, thus setting the historical scene as well as anticipating and complementing the accounts of national history which appear in subsequent chapters; and it concludes with an assessment of the overall development of the law in the countries surveyed, and with some wider reflections on the nature and purpose of testamentary formalities.

Recent years have seen a growing body of literature on the contribution of scientists, historians, and literary and artistic figures who were forced to leave Germany and Austria after Hitler came to power. This volume is the first study of the important contribution of refugee and emigre legal scholars to the development of English law. Those considered in the book are: E. J. Cohn, David Daube, Rudolf Graupner, Max Grunhut, Hermann Kantorowicz, Otto Kahn-Freund, Hersch Lauterpacht, Gerhard Leibholz, Kurt Lipstein, F. A. Mann, Hermann Mannheim, Lassa Oppenheim, Otto Prausnitz, Fritz Pringsheim, Gustav Radbruch, Clive Schmitthoff, Fritz Schulz, Georg Schwarzenberger, Walter Ullmann, Martin Wolff, and Wolfgang Friedmann. The scene is set by two introductory chapters which explore the general background to the exodus of the emigre scholars from Germany and to their arrival in the United Kingdom. The volume then moves on to analyse the scholars' backgrounds, histories, and intellectual bent as individuals, and evaluates their work and its impact on legal scholarship in both England and Germany. In those subjects where the influence of these scholars was particularly strong: public and private international law, Roman law, and comparative law; it considers how far, collectively, these German and Austrian educated refugees and emigres shaped the development of the law. There are also a number of personal memoirs, including one by the surviving member of the group, Kurt Lipstein. These lawyers had received their first legal training in a civilian legal system, but in the UK they were faced by the less schematic, more pragmatic, common law. The differences between these legal traditions made it more difficult for them to adjust and to find suitable professional positions than was the case for refugee scientists, for example. However the differences gave them a unique perspective which is of particular interest today, when the relationships between the common law and the civilian legal systems of Europe are of growing theoretical and practical imporance.

Scotland has a special claim for the attention of comparative lawyers, of legal historians, and of those who seek to identify a common core in European private law or to develop a new jus commune. For Scotland stands at the intersection of the two great traditions of European law-of the law of Rome, received and developed in Continental Europe, and of the law which originated in England but was exported throughout the British Empire. In Scotland, uniquely in Europe, there is to be found a fusion of the civil law and the common law. Law in Scotland has a long history, uninterrupted either by revolution or by codification. It is rich in source material, both printed and archival. Yet hitherto the history of legal doctrine has been relatively neglected. This work is the first detailed and systematic study in the field of private law. Its method is to take key topics from the law of obligations and the law of property and to trace their development from earliest times to the present day. A fascinating picture emerges. The reception of civil law was slow but profound, beginning in the medieval period and continuing until the eighteenth century. Canon law was also influential. This was flanked by two receptions from England, of Anglo-Norman feudalism in the twelfth century and beyond, and, more enduringly, of aspects of English common law in the nineteenth and twentieth centuries. In addition there was much that was home-grown. Over time this disparate mixture was transformed by legal science into a coherent whole.

The emergence of a European private law is one of the great issues on the legal agenda of our time. Among the most prominent initiatives furthering this process is the work of the Commission on European Contract Law. The essays collected in this 2002 volume have their origin within this context. They explore two practically very important topics which had hitherto been largely neglected in comparative legal literature: set-off and 'extinctive' prescription (or limitation of actions). Professor Zimmermann lays the comparative foundations for a common approach which may provide the basis for a set of European principles. At the same time, the essays provide practical examples of the arguments that can be employed in the process of harmonising European private law on a rational basis. They explore topics such as the comparative experiences in the various modern legal systems and the direction in which the international development is heading.

Vortrag, gehalten vor der Juristischen Gesellschaft zu Berlin am 15. Juni 2005, mit dem Thema Europaisierung des Privatrechts als Aufgabe und Herausforderung der Rechtsvergleichung.

For some Western European legal systems the principle of good faith has proved central to the development of their law of contracts, while in others it has been marginalized or even rejected. This book starts by surveying the use or neglect of good faith in these legal systems and explaining its historical origins. The central part of the book takes thirty situations which would, in some legal systems, attract the application of good faith, analyses them according to fifteen national legal systems and assesses the practical significance of both the principle of good faith and its relationship to other contractual and non-contractual doctrines and forms of regulation in each situation. The book concludes by explaining how European lawyers, whether from a civil or common law background, may need to come to terms with the principle of good faith. This was the first completed project of The Common Core of European Private Law launched at the University of Trento.

This third volume in a series on Comparative Succession Law concerns the entitlement of family members to override the provisions of a deceased person's will to obtain money or assets (or more money or assets) from the person's estate. Some countries, notably those in the civil law tradition (such as France or Germany), confer a pre-ordained share of the deceased's estate or of its value on certain members of the deceased's family, and especially on the deceased's children and spouse. Other countries, notably those in the common law tradition (such as England, Canada, or Australia), leave the matter to the discretion of the court, the amount awarded depending primarily on financial need. Whichever form it takes, mandatory family provision is both a protection against disinheritance and also, therefore, a restriction on testamentary freedom. The volume focuses on Europe and on countries influenced by the European experience. In addition to detailed treatment of the law in Austria, England and Wales, France, Germany, Hungary, Italy, the Netherlands, Norway, Poland, Scotland, and Spain, the book also has chapters on Australia and New Zealand, South Africa, the United States, Canada, the countries of Latin America, and the People's Republic of China. Some other countries are covered more briefly, and there is a separate chapter on Islamic law. The book opens with accounts of Roman law and of the law in medieval and early-modern Europe, and it concludes with a comparative assessment of the law as it is today in the countries and legal traditions surveyed in this volume.

This book provides a history of some of the main institutions of South African private law and in so doing explores the process through which integration of the English common law and the continental civil law came about in that jurisdiction. Here is a book aimed at both European and South African audiences. For European lawyers it provides a stimulating insight into the way the process of harmonization of private law has occurred in South Africa and may occur within the European Union. By analysing the historical evolution of the most important institutions of the law of obligations and the law of property the book demonstrates how the two legal traditions have been accommodated within one system. The starting point for each essay is the "pure" Roman-Dutch law as it was transplanted to the Cape of Good Hope in the years following 1652 (and as it has been examined in considerable detail in another volume edited by Robert Feenstra and Reinhard Zimmerman, published in 1992). The analysis focuses on how the Roman-Dutch law has been preserved, changed, modified or replaced in the course of the nineteenth century when the Cape became a British colony; and on what happened after the creation of the union of South Africa in 1910. Each essay therefore attempts, in the field of law with which it is dealing, to answer questions such as: what was the level of interaction between the civil law and the common law? What were the mechanisms that brought about the particular form of competition, coexistence or fusion that exists in that area of law? Is the process complete or is it still continuing? Is it possible to observe the emergence, from these two routes, of a genuinely South African private law? How is the result to be evaluated? In establishing reception patterns at the level of specific areas of law, they go beyond generalization about the compatibility of the two traditions and present evidence of a possible symbiosis of English and Continental law.
For South African readers the principal value of the book is that it offers essays by the most prominent South African private lawyers refelecting on the history of their subjects. It therefore constitutes the first stage in the writing of a history of substantive private law in South Africa. So far the focus has mainly been on the so called "external history" of South African law, and such texts as there are on the development of the institutions of private law are often in Afrikaans and mainly to be found in unpublished theses. Thus this book fulfils a real need for those teaching South African private law and legal history.
Although the volume investigates a specific aspect of the making of modern South African law it is imperative not to lose sight of the fact that private law in that country, as every way else did not develop in a vacuum, but as part of a wider political and social prcess. For this reason the book opens with an essay which contextualizes the contributions that follow, giving a view of the "setting" in which the development of South Africa took place: colonial domination, cultural imperialism, and racial and nationalistic ideologies. Two further introductory essays pay specific attention to the impact of the procedural framework on the substantive private law and to the "architects" of the mixed system.

This is a scholarly survey of the Law of Obligations from classical to modern times. It is a marvellous work of historical synthesis which discusses each contract, tort, and liability based on unjust enrichment with great clarity and traces their development over hundreds of years through the legal systems of Europe. It is not merely a work of Roman legal scholarship. It is a treasure-house of ideas and arguments as well as information and scholarship relating to the Law of Obligations. It will be used by scholars of private law throughout the world for many years to come.

Unjustified enrichment has been one of the most intellectually vital areas of private law. There is, however, still no unanimity among civil-law and common-law legal systems about how to structure this important branch of the law of obligations. Several key issues are considered comparatively in this 2002 book, including grounds for recovery of enrichment, defences, third-party enrichment, as well as proprietary and taxonomic questions. Two contributors deal with each topic, one a representative of a common-law system, the other a representative of a civil-law or mixed system. This approach illuminates not just similarities or differences between systems, but also what different systems can learn from one another. In an area of law whose territory is still partially uncharted and whose borders are contested, such comparative perspectives will be valuable for both academic analysis of the law and its development by the courts.

Unjustified enrichment is one of the most intellectually vital areas of private law. However, little unanimity exists among civil-law and common-law legal systems about structuring this important branch of the law of obligations. This book analyzes a range of key issues which are considered respectively by a representative of a common-law, as well as a civil-law system. The approach highlights similarities and differences between systems, and what each can learn from the other.

This book starts by surveying the use or neglect of good faith in European contract law and traces its historical origins. Its central part takes thirty hypothetical situations that have attracted the application of good faith and analyzes them according to fifteen national legal systems. It concludes by explaining how European lawyers, whether from a civil or common law background, need to come to terms with the principle of good faith.

This book considers, in a comparative perspective, important trends and issues affecting the law on rights of personality in jurisdictions drawn from the families of common law, civilian law and mixed legal systems. The main focus is on the private law of personality rights but due regard is paid to the impact thereon of constitutional legislation and other instruments protecting human rights. Table of cases, table of statures and an index are included.

Christian Thomasius was the founding father of the German enlightenment, and as such initiated a second German "reformation". He was a philosopher, educator and journalist, but above all he was a lawyer. He was extraordinarily successful as an academic teacher and was also a prolific writer. Perhaps best known today for his campaign against witch-hunting, he was, in his day, equally renowned for his study of Roman law, of which the Larva Legis is a single but remarkable example. The text reprinted and translated in this book is notable for three reasons. First because of the eminence and influence of its author; second because of the way in which it illustrates the development of the civilian tradition and its critical assessment by lawyers; and third, because it is a key text within the history of one of the main branches of the European law of obligations. As such it contributed to the establishment of a modern and critical approach towards the law of delict in Europe.

This fully revised and updated second edition of The Oxford Handbook of Comparative Law provides a wide-ranging and diverse critical survey of comparative law at the beginning of the twenty-first century. It summarizes and evaluates a discipline that is time-honoured but not easily understood in all its dimensions. In the current era of globalization, this discipline is more relevant than ever, both on the academic and on the practical level. The Handbook is divided into three main sections. Section I surveys how comparative law has developed and where it stands today in various parts of the world. This includes not only traditional model jurisdictions, such as France, Germany, and the United States, but also other regions like Eastern Europe, East Asia, and Latin America. Section II then discusses the major approaches to comparative law - its methods, goals, and its relationship with other fields, such as legal history, economics, and linguistics. Finally, section III deals with the status of comparative studies in over a dozen subject matter areas, including the major categories of private, economic, public, and criminal law. The Handbook contains forty-eight chapters written by experts from around the world. The aim of each chapter is to provide an accessible, original, and critical account of the current state of comparative law in its respective area which will help to shape the agenda in the years to come. Each chapter also includes a short bibliography referencing the definitive works in the field.

Zwingenden Angehörigenschutz gewährleistet das deutsche Erbrecht durch eine feste Quotenteilhabe: Den Abkömmlingen, den Eltern und dem Ehegatten des Erblassers steht als "Pflichtteil" die Hälfte des Wertes ihres gesetzlichen Erbteils zu, wenn sie durch Verfügung von Todes wegen von der Erbfolge ausgeschlossen sind. Für diese bedarfsunabhängige Beschränkung der Testierfreiheit gibt es keine überzeugenden Gründe. Das vorgestellte Alternativmodell zum Pflichtteilsrecht soll die Reformdiskussion wiederbeleben. Es beruht auf dem Grundgedanken, die Testierfreiheit zu stärken und deshalb die nächsten Angehörigen des Erblassers nur dann zu schützen, wenn sie eines solchen Schutzes tatsächlich bedürfen. Soweit ein solches Schutzbedürfnis allerdings besteht, soll es so weit wie möglich befriedigt werden. Dreh- und Angelpunkt des Reformmodells sind infolgedessen die Unterhaltspflichten des Erblassers, die als Nachlassverbindlichkeiten bestehen bleiben.