A Legal Tapestrjr of Many Different Shades and Nuances
We have referred, above, to Scotland and South Africa as 'mixed legal systems', because their development reflects an interaction between the continental civil law and the
■w For a detailed analysis, see McBryde, (1993) 42 ICLQ 54 if.; Sellar (n.
282) sub IV and VI. Generally on the influence of Canon law in Scotland, see J. J. Robertson, ‘The Canon Law Vehicle of Civilian Influence with Particular Reference to Scotland’, in Carey Miller and Zimmermann (n. 3) 117 ff.304 Stair (n. 302) book 1, title 10, 5.
305 See Law of Obligations (n. 40) 43 f.
306 Sellar (n. 282) sub VII.; ci. also Zimmermann and Hellwege, 1998 Zeitschrift filr Rechtsvergleichitng, internal ionales Privatrecht und Eiiroparrcht 139 ff.
307 Sellar (n. 282) sub X.
V3!’ See ibid, sub IX.
■WQ Art. 2:107 I’ECL (on which provision see the comments in Ole Lando and Hugh Beale (eds.), Principles of European Contract Law (2000), 157 f.).
English common law.311’ An examination of the specific experiences of the 'third legal family' should not, however, obscure the fact (and our awareness of it) that all our national private laws in Europe today can be described as mixed legal systems. Characteristically, therefore, David Ibbetson starts the 'prologue' of his history of the law of obligations in England with the sentence: 'The Common law of obligations grew out of the intermingling of native ideas and sophisticated Roman learning.'311 Indeed, the very use of the taxonomic concept of a 'law of obligations' that has been gaining ground in recent years in England,312 evidences the productive adaptation of such Roman learning.313
The same is true of the continental legal systems. None of them has remained 'pure' in its development since the Middle Ages.
They all constitute a mixture of many different elements: Roman law, indigenous customary law, Canon law, mercantile custom, and Natural law theory, to name the most important ones in the history of the law of obligations. Even these five elements themselves are not 'pure' in the sense that they would have developed in splendid isolation from each other. Roman law from the third century ad became 'vulgarized', which means that it absorbed elements of Greek law (in the East) and Germanic customary law (in the West). The laws of the Germanic tribes, in turn, became Romanized the longer they settled within what had been the confines of the Roman Empire.3143,0 On the relationship between Roman-Dutch and Scots law see, from the point of view of modern law, VVhilty, 1996 Tydskrif vir die Suid-Afrikaanse Reg 227 if., 442 if., particularly 455 if.; Rodger (n. 270) 225 ff.; Daniel Visser, 'Placing the Civilian Influence in Scotland: A Roman-Dutch Perspective’, in Carev Miller and Zimmermann (n. 3) 239 ff.; MacQueen, (1997) 5 ZEnP 369 if.; Jacques du Plessis, The Promises and Pitfalls of Mixed Legal Systems: The South African and Scottish Experiences', 1998 Stellenbosch Law Review 338 ff.
3,1 Ibbetson (n. 240) 1.
312 This is evidenced, for instance, by the legal education requirements laid down by the professions, i.e. the Bar and the Law Society.
311 For discussion see Peter Birks, 'Definition and Division: A Meditation on Institutes 3.13', in idem (ed.), The Classification of Obligations (1997), 1 ff.; cf. also Peter Birks, 'More Logic and Less Experience: The Difference between Scots Law and English law', in Carey Miller and Zimmermann (n. 3) 167 ff.
3,4 See the references p. 20, n. 83.
Canon law depended to a large extent upon Roman legal rules and concepts;[500] at the same time, in many respects it influenced the way in which the civil law developed.[501] The medieval lex mercatoria had absorbed specific institutions like general average (based on the lex Rhodia de iactu) or bottomry loan (feints itatiticum)[502] [503] [504] as well as the general notion of bona fides.313 And Natural law theory, too, relied heavily on the Roman-Canon ins commune.3™ The various strands of tradition were very closely interwoven and formed a legal tapestry of many different shades and nuances.[505] 2.
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