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© Basil S Markesinis, Hannes Unberath and Angus Johnston 2006

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British Library Cataloguing in Publication Data

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ISBN 13: 978–1–84113–471–0 (hardback)

ISBN 10: 1–84113–471–6 (hardback)

ISBN 13: 978–1–84113–472–7 (paperback)

ISBN 10: 1–84113–472–4 (paperback)

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Foreword by Lord Bingham

There are many good reasons for a common lawyer to study a foreign law such as the German law of contract.

First and foremost, as a sustained exercise in human thinking, the product of philosophical debate, scholarly discussion and judicial application over many years, such a law deserves study in its own right. It is, like an epic poem or a symphony or a work of architecture, a refined manifestation of the human mind and spirit, commanding attention on that ground alone. Such a reason may not be very fashionable nowadays, but it should come first all the same.

The Second reason is more pragmatic. It is that by studying a foreign law such as the German law of contract the common lawyer gains valuable insights into his own law: “And what should they know of England who only England know?” On first perusing this text, the common lawyer will be struck by the familiarity (in translation) of a number of elements of the German law of contract, which may indeed be elements of any coherent law of contract. But the appearance of familiarity is to some extent deceptive, since frequently the underlying concepts are different, sometimes subtly so, sometimes substantially. Even the meaning of “contract” is not the same. These differences appear from the authors’ skilful analysis, which they illuminate with references to the French Civil Code and the American and English common law.

The third reason for legislators, lawyers and judges to study a foreign law such as the German law of contract is even more pragmatic: it is to facilitate the timehonoured practice of theft. This is not, of course, to suggest that the BGB could or should be uprooted bodily and transplanted in British soil. Even if feasible, that would be absurd. But the snapping-up of well-considered trifles has a respectable legal ancestry, and when choices have to be made about the future development of an important field of law it is highly beneficial to know how the same problem has been resolved in another sophisticated and respected legal system. There are no doubt circumstances in which ignorance is bliss, but it is never folly for a lawmaker to be informed.

That leads on to a fourth and important reason. While some welcome the prospect more than others, it seems inevitable that the years ahead will bring some degree of convergence between the laws of the major European states, German and Britain prominent among them. As active trading partners, members of the European Union responsive to and bound by its legislation and as parties to important international conventions, this trend must surely grow in strength, even if falling well short of unification. It would of course be a lamentable result if this process were to lead to a common European law manifestly inferior to the national laws it replaced. So the objective of all involved must be to establish principled rules embodying the best jurisprudential products of all the great European systems. But that requires knowledge and understanding not only of one’s own law but also of others with which it must be compared and blended.

vi FOREWORD

When stepping into the unknown or incompletely known, even the most conscientious traveller needs a guide. It would be hard to find any guide better qualified or suited to their task than the authors of this big and important book.

Tom Bingham

House of Lords

12 April 2005

Foreword by President Hirsch

On January 1, 2002, the time-honoured German Bürgerliches Gesetzbuch (BGB) which came into force on January 1, 1900 underwent one of its most fundamental changes. With the Gesetz zur Modernisierung des Schuldrechts, not only were a number of EC Directives implemented, but the need for a modernisation of the entire law of obligations and the statutory limitation rules was also finally met. In addition, the tendency to regulate specific questions of the law of obligations by means of special statutes was brought to an end in order to retain the advantages of a comprehensive codification of the law of obligations in one singly document. A similar development can be witnessed in the case of the French Code civil.

The indisputable necessity to shape the law of obligations of the Member States of the European Community in such a way that it does not adversely affect trans-fron- tier trade can be taken into account in two ways. Either the national legislators modify their Civil Law in such a way that it is compatible with the legal systems of the other Member States, or the European legislator standardises certain fields of law within the framework of its (limited) competence—doing this as a rule by means of Directives.

Beyond the isolated steps taken in specific sectors towards an approximation of Civil Law within the European Community, the idea of an epochal project is now gaining wider recognition within the Community: a European law of contract. In 2001 the European Commission put forward four options for discussion: (1) to leave the solution of defects discovered to the market, (2) to develop common principles of the European law of contract, (3) to improve the already existing EC law of contract and

(4) to lay down new regulations concerning the law of contract. With this, the development of a European law of contract has been given a new impetus. But in the short term, no quick results can be expected.

This forms the background to the work by Professor Sir Basil Markesinis, an acknowledged authority on German civil law, and his co-authors.

Civil Law is the heart of every country’s legal culture. It has developed over the centuries and is an integral part of national identity of all countries.

However, today trade and tourism know no boundaries. Therefore the law also, particularly a country’s law of obligations, can no longer restrict itself to providing purely national answers without any regard for other legal systems. Getting to know other legal systems and incorporating them in the interpretation and development of one’s own law represents more than a cultural and intellectual enrichment. In reality it is indispensable to practice since every jurist needs to be able to see further than his own everyday problems. This is particularly true of the law of obligations which regulates the legal assessment of everyday business—a branch of the law which, these days, through e-commerce and otherwise, increasingly has a cross-border reference extending even to international business transactions.

viii FOREWORD

In addition, just as a cathedral is more than the sum of the stones used to build it, and a symphony is more than the sum of its notes employed to compose it, a particular statute is more than the sum total of its paragraphs. It is the idea behind the law, the aspiration for justice connected with the law, which has to be understood if one wishes to master it.

The law of obligations is a field of law in which the cultural and social convictions of a nation are particularly clearly manifested, for instance where the binding character of obligations which have been entered into, the meaning of ownership, the freedom of the individual are concerned. It is precisely for this reason that this work by Sir Basil Markesinis, Dr Hannes Unberath and Mr Angus Johnston is so important. For, using the comparative method it goes beyond a mere description of the subject matter, making it possible not only to learn the German law of obligations but also leading to its deeper understanding. In their set task, the authors have thus done a truly magnificent job.

Professor Dr Günter Hirsch

President of the Bundesgerichtshof

Karlsruhe,

29 July 2005