Piecemeal Solutions v. Overriding Principle
Thirdly, a remark about stereotypes in comparative legal discourse. It is often said that English law develops incrementally; it finds piecemeal solutions in response to demonstrated problems.[540] This is seen as part of the pragmatic tradition of the common law.
Recognition of overriding principles and general legal institutions, on the other hand, are widely regarded as characteristic of the continental approach. But this is an oversimplification. An overriding principle of good faith, as contained in § 242 BGB, in reality, is hardly more than an invitation, or reminder, for courts to do what they do anyway: to develop the law in accordance with the perceived needs of their time.[541] It would neither require English judges 'to give up the time- tested tradition of going cautiously from this case or that case to the next case'[542] nor does it prevent German judges from doing just that. Apart from that it should be kept in mind that the implication of terms in law under the aegis of a standard of reasonableness, as recognized in English law, is a device of considerable generality and flexibility, as unconducive to 'predictability of the outcome of a case'398 as a general standard of good faith. Or we may look at the institution of the trust. It is a unitary conception that is famous for its flexibility and adaptability. Continental legal systems, on the other hand, have to rely on 'a whole panoply of extremely heterogeneous legal institutions'399 in order to satisfy the needs for which English lawyers use the trust.
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