Book Review by Ulrich Magnus
This is another masterpiece of comparative law initiated and written by Sir Basil Markesinis and his co-authors Hannes Unberath and Angus Johnston and further enriched by contributions of Kurt Lipstein, Tony Weir, Raymond Youngs, Irene Snook, and Carola Pfau, who delivered the translations of German court decisions and of the relevant provisions of the German Civil Code. These translations considerably add to the practical value of the book. The German Law of Contract is a second masterpiece because it is the counterpart and necessary addition to Markesinis and Unberath's, The German Law of Torts: A Comparative Treatise, the fourth edition of which appeared in 2002. Both volumes—all in all more than 2000 pages—form a comprehensive comparative treatise on what European continental, and especially German, lawyers call the law of obligations. The now published second edition of The German Law of Contract has been almost entirely rewritten, mainly due to the fact that the German law of contract underwent major changes in 2002.
But why a masterpiece? This judgment needs some explanation. First, there is the method to the book. Since Ernst Rabel, it has become the habit of comparatists to follow a functional approach to comparative law. Very broadly described, this means the following procedure: one has to start from a social problem—for instance, that a person erred when expressing his or her intention. In the first step, one must identify as clearly as possible the factual background and reasons for such mistake or error and then identify the legal problem of whether and when, if at all, this person should be bound by such a mistaken declaration. The next step is the description of the legal solution to the problem in different legal systems. Here it is essential to take into account all the legal instruments that can be used to resolve the problem identified, irrespective of their dogmatic or systematic classification in the respective legal system; only their function in solving the investigated problem is decisive. The final step is the comparison of the various solutions in the different legal systems. The whole exercise aims at better knowledge of possible solutions to a social problem, perhaps even to find the “best” legal solution, and at least to get some stimulating insights and suggestions for one's own law.
About the Author
Ulrich Magnus. Professor, Faculty of Law, University of Hamburg; Chair for Civil Law, Private International Law, and Comparative Law; Judge, Court of Appeal of Hamburg; Executive Vice-Director, European Centre for Tort and Insurance Law, Vienna; Germany's National Correspondent, UNCITRAL; Co-speaker, International Max-Planck-Research School for Maritime Affairs, Hamburg; Member, German Council for Private International Law, European Group on Tort Law and European Acquis Group.
Citation
81 Tul. L. Rev. 565 (2006)