Foreword to the Second Edition

I honoured to be invited to contribute a Foreword to the Second Edition of this remarkable and, certainly to me, most valuable book.

The theoretical case for the study of comparative law has long been made out. The problem now is not whether comparative law should be taught in our universities, and studied by our law students. The problem is rather how it should be presented, not merely as an aspect of legal culture, but as a subject which is capable of influencing our work, whether as scholars or as practising lawyers in the development, exposition and application of legal principles, in the context of our own domestic legal system.

It must never be forgotten, by those who teach and write about law, that, for those who study it and those who practise it, our own domestic law bristles with difficulties which are hard to master, and problems which are difficult to solve. In working through a heavy university curriculum, and in the helter-skelter of professional life (whether in practice or on the bench), it is not at all easy to accommodate the introduction of material from other legal systems, and especially from civil law systems with which we are unfamiliar. Even in appellate tribunals, it is hard enough to master and to reconcile existing English material—statutes, cases and academic writings. Moreover, in the great majority of cases, the point is a relatively narrow one which is subjected to intensive examination; and it is the practical implications of any particular solution which exercise, perhaps, the greatest influence.

It is only by grasping the practicalities of university study, of professional lawyers’ practices, and of work in the courts, that it is possible to conceive an appropriate vehicle for bringing comparative law to bear, as a useful tool, and as an effective influence. For these purposes, books on comparative law which are general in nature, however admirable in themselves, however educational in a cultural sense, are of little direct use. To be influential in a more practical way, comparative law material has to be far more closely focused; and, not only that, it has to be readily comprehensible, practically orientated, and thoroughly reliable, by which I mean both accurate and up to date.

It stands to Professor Markesinis’ great credit that he has fully grasped the realities of the situation in which the comparative lawyer finds himself. He understands how necessary it is that work on comparative law should be closely focused, for it to be of practical benefit to English lawyers. He understands how necessary it is that such work should be thoroughly reliable, demonstrating the author’s deep and genuine understanding of this subject, set in the practical and theoretical context of its own legal system. He understands how necessary it is that it should be readily comprehensible; for example, despite his own mastery of languages, he recognises the need to present the primary sources in copious and felicitous translation for the English lawyer. He understands, too, the need for it to be practically useful, by travelling far beyond the provisions of codes to the real cases which trouble the courts and by including reported judgments from those cases, set in their theoretical context as seen by indigenous lawyers.

It is perhaps even more to Professor Markesinis’ credit that he is not only capable of mastering fully a substantial topic from a foreign system of law demonstrating his expertise to the satisfaction of leading lawyers from that legal system; he also has the courage

to embark upon so exacting a task as the critical exposition of such a topic, and the determination and industry to carry that task through to its fulfilment.

I speak, of course, of the present book, his Comparative Introduction to the German Law of Torts. It came as no surprise to me that the first edition of the book was so successful and was so warmly received. I know of no more directly useful book on comparative law than this. It is a book which can not only be usefully consulted by creative lawyers in this country; it is one which is capable of influencing directly the solution of problems with which we have to grapple in our own domestic law. Too often, German law is presented to us as over-theoretical and ridden with concepts. Here, however, we can see German judges at work, tackling the same problems as we have to tackle, coming up with solutions sometimes the same as ours, sometimes different—and, when they are different, sometimes (it may be thought) better than those which we have chosen. It has truly been said that the most beneficent effect of the study of other systems of law is that we learn more about our own. In this book, Professor Markesinis has taught us all how comparative law is best presented to achieve that admirable objective.

I gladly commend this new edition. As with all new editions of successful law books, it has grown in size. But, as the reader will soon discover, this is no mere update; it has involved substantial rewriting, as well as the incorporation of much new and valuable material, from Anglo-American law as well as from German law. In the result, it will be even more useful to us than its predecessor; and I am bold enough to predict that it will be even more successful.

Foreword to the First Edition

W I was invited to write a few words of introduction to this book I accepted immediately and without any hesitation, even though at that time I had not yet read the manuscript. Lawyers usually are cautious people, but in this case there was no risk involved. Since I knew the author’s previous publications dealing with the law of tort on a comparative basis, I had no doubt that his project of a Comparative Introduction to the German Law of Tort would be a great success. There were two further reasons why I gladly accepted this invitation. For many years the author co-operated most fruitfully with the late Professor Lawson, who some decades ago was my tutor in Oxford. Both Dr Markesinis and I owe this great comparatist very much, for he had the rare gift of illuminating difficult problems by quick and penetrating observations. The other reason is the author’s connection with Cornell Law School, which encouraged and supported this book. This brings back to my memory the wonderful time I spent there working in Rudi Schlesinger’s team exploring the common core of legal systems in the area of formation of contracts—a project of comparative law conducted under the auspices of the Cornell Law School which has been favourably received by scholars all over the world.

The present book, I am sure, will not merely serve its immediate purpose of introducing the reader to the German law of tort; no doubt it will also open many new perspectives for the general understanding of this legal system belonging to the civil law. Apart from family law, which has undergone rapid changes in most countries since , the law of liability is an area where many important developments have taken place. Even a superficial look at the index of any of the ninety volumes of the official collection of civil cases decided by the Federal Supreme Court will suffice to confirm this impression: the number of reported cases on problems of civil liability is remarkable. Many of them have given rise to vivid discussion in German legal literature, thus confronting the courts with new ideas. This had led to a fruitful exchange of ideas between bench and scholars unknown in most of the other legal systems. The care with which the Federal Supreme Court considers critical views put forward against its opinions is sufficient evidence of this.

The importance of the law of liability and its special value for academic teaching in the Federal Republic of Germany is further stressed by the somewhat complicated interaction of contract and tort which has reached the point where the boundaries between these two areas of the law have become blurred. The different approaches taken by the German Civil Code in regard to vicarious liability in contractual relations on the one hand, and in the law of tort on the other, have certainly contributed much to the tendency to enlarge the field of contractual liability, thus filling gaps found to exist in the law of tort. However, the much disputed § of the Civil Code dealing with the responsibility of employers for tortious acts committed by their employees in the course of employment which used to be a stumbling-block for plaintiffs in former times has lost much of its significance in actual legal practice, because increasingly the courts have shifted the emphasis on the basic rule contained in § I Civil Code. This means that they will look into the relevant business organisation rather than try to establish the employer’s fault in the selection or supervision of an individual, thereby depriving the employer of the chance to

exculpate himself. The burning problem nowadays is whether purely economic loss must be made good in ordinary negligence cases, where the parties have not been in contractual relations stricto sensu. Liability for negligent misstatements is but one group of cases in which this problem has arisen. Here as elsewhere in this book Dr Markesinis has succeeded completely in selecting those cases which are most instructive. Therefore the reader obtains all the information he needs in order to find out how the law stands in such important fields as, for instance, products liability, medical malpractice, and traffic accidents. However, it is the thorough, comparative discussion accompanying each group of cases that makes reading this book a great pleasure even for one already familiar with the material. Although this book was written for students belonging to the AngloAmerican legal family I would, therefore, like to recommend it to students of other legal backgrounds as well, because the problems dealt with are of a universal nature in the sense that each developed legal system has to deal with them.

Faculty of Law