Variations of a Theme
(iii) Any attempt to describe and analyse the Western legal world in terms of a civil law/common law dichotomy is in
Contract biw (1994) (referring to the Unidroit Principles of International Commercial Contracts).
On the American restatements see, most recently, Thomas Schindler, 'Die Restatements und ihre Bedeutung fiir das amerikanische Privat- recht', (1998) 6 ZEltP 277 if.25 The Trento Common Core Project; it has been inspired by Rudolf Schlesinger et al., Formation of Contracts: A Sli/dy of the Common Core of Legal Systems, 2 vols. (1968).
26 See Walter van Gerven et al.. Tort Law: Scope of Protection (1998).
27 For An attempt to summarize the intellectual connections between civil law and common law, see Reinhard Zimmermann, 'Der europaische Charakter des englischen Rechts: Historische Verbindungen zwischen civil law und common law', (1993) 1 ZEnP 4 ff.
28 See supra p. 109, n. 13.
29 Berman (n. 16) 18. For an evaluation of Harold J. Berman’s views of a Western legal tradition, see R. H. Helmholz, 'Harold Berman’s Accomplishment as a Legal Historian', (1993) 42 Emory Line Journal 475 ff.
w R. H. Helmholz, 'Magna Carta and the his commune', (1999) 66 University of Chicago bitt· Review 297 if. (quotation on p. 371). great danger of considerably underrating the diversity existing within the civil law systems. The differences between French and German law may be as great, or even greater, than those between French and English, or German and English law: on the level both of substantive law[320] and legal style.[321] Even where both French and German law are based on Roman law, the solutions adopted by code civil and BGB may be quite different[322] This is attributable to the specific nature of the Roman sources.
Not infrequently do they contain two different sets of rules dealing with one and the same problem, one for the stipulation, another for the consensual contracts; and both have found their way into our modern codifications. In other cases, considerable variations presented in the modern codes are based on the fact that the relevant Roman texts, which have for centuries informed our discussion, are either unclear, or even contradictory. The Digest sometimes still retains different layers of legal tradition. Often we find ambiguities resulting from Justinian's attempts to streamline and interpolate what the classical jurists had written, or to devise a generalized doctrine that was no longer dictated by procedural niceties. Moreover, generalization of rules and institutions, concepts and criteria of Roman law is a characteristic feature of the civilian tradition. Often that process had already been started by the classical jurists, who built on the foundations of the ancient ins civile; it was carried on by Justinian; and it was further advanced by the jurists of the ills commune and the Natural lawyers. Sometimes a reaction occurred against generalizations which subsequently were regarded as t(x) sweeping.The codifications, of course, reflect the results of these developments; or, more precisely, the different stages that these developments had reached, when each codification was drafted. As a result of these specific features of the Roman sources, we have a general provision of delictual liability in France but not in Germany; an institution of mora debitoris in Germany but not in France; the abstract system of transfer of ownership in Germany, the consensual one in France; vicarious liability in France, fault-based delictual liability for others in Germany; set-off operating ipso iure, a uniform concept of 'inexecution' covering all forms of breach of contract, and nemo potest precise cogi ad factum in the one legal system, set-off by notice, a distinction between various types of breach of contract focusing on the concept of 'impossibility', and the general recognition of specific performance in the other.34 Many more examples could be mentioned.
In fact, it is not easy to think of a legal rule derived, directly or indirectly, from Roman law and expressed in exactly the same way in all European codes.35 European private law, one might say pointedly, is characterized by its great variety of rules and solutions—but it is a variety within a fundamental intellectual unity. The same is true as far as a comparison between civil law and common law is concerned. The European legal landscape resembles a painting in many different shades and colours rather than a simple monochrome snapshot.I would like to use the main part of my third lecture to illustrate the way in which I think we may gain a better understanding of private law in Europe and may be able to recreate an awareness of the historical foundations of a new ius commune. I am using the opportunity to present certain conclusions, or preliminary conclusions, of a number of research projects with which I have, in some or other way, been associated. The focus of the following observations is on (i) the vital connection that ties the present to the past; (ii) the intellectual link between legal history and comparative law; and (iii) connections existing between civil law and common law.
M For all references, see tile article mentioned in the previous footnote.
35 Zimmermann (n. 33) 267 f.
More on the topic Variations of a Theme:
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- PREFACE