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Preface to the Fourth Edition

T the fourth edition—fifth if one counts as a new edition the corrected and with some additions reprint of —of The German Law of Torts and it takes place sixteen years after this work first saw the light of day. This must be a record of sorts for a book, which is substantial in size, not cheap in price, and specialised in nature. The initial proposal to the OUP to publish the book succeeded only because of the unflinching support of my former Oxford colleague and friend Tony Honoré and the tenacity and imagination of Richard Hart who had to fight hard to create an interest in foreign and comparative law. It is thus fitting that the book should now appear in the lists of Hart Publishing; and it does so in a substantially revised, up-dated, and enlarged form. Though the book still bears my own brand of comparative methodology, and I have done much work myself to up-date both its German and Common law parts, the new edition also owes a great deal to my (and Professor Francis Reynolds’) former Oxford student Dr Hannes Unberath. For his brilliant D.Phil. dissertation—Recovery of Third Parties’ Losses in Contractual Actions—a Comparative Study of English and German Law—prepared him well for the task of comparing systems. Indeed, as readers will soon discover when it sees the light of day, it has provided a new benchmark for anyone who wishes to undertake as Dr Unberath did a perceptive, measured, and comparative examination of a foreign legal system. The result of our combined efforts is that very few parts of the book have escaped a substantial re-writing or, at the very least, an updating revision. The number of decisions reproduced in translated form has also increased dramatically from in the first edition to in the present. More will follow in the years to come in the website I have set up at the Institute of Global Law of University College London making the richness of German legal culture more widely available to Common lawyers.

The commercial success of this book has been surpassed only by the critical acclaim that it has received from numerous comparatists. They include such luminaries as (in alphabetical order) Professors Christian von Bar, Hein Kötz and Werner Lorenz from Germany and John Fleming, Kurt Lipstein, Barry Nicholas, Bernard Rudden and, of course, Tony Honoré from our own legal world. In one sense even more important is the judicial approbation that the book has also received from such eminent judges as Lord Bingham, Lord Goff and now Professor Dr Walter Odersky, emeritus President of the Supreme German Federal Court whose case law this book discusses in some detail and who is therefore more qualified than most to judge its contents. His Foreword shows that he has done this carefully; and both of us are deeply in his debt for his generous suggestions and kind endorsement. My own debt to him in fact goes back quite a few years since with his encouragement I repeatedly drew on his immense learning and experience. My German friends have never let me down; nor I them. Of a different nature but equally profound is my debt to Sir Stephen Sedley. For not only did he generously accepted the onerous task of reading the entire manuscript and contributing an “endorsing” Foreword to the book. In his professional life he has also managed to combine the role of judge and jurist, thus doubly (as well as significantly) influencing legal thought in this country.

But how can one explain the success of this book? It would be nice for the author(s) to claim the major part of the credit but I suspect the reasons are wider and thus much more noteworthy.

I suppose the first and foremost reason is that the study of foreign law and the quest of ways of presenting it to British lawyers is growing as we are increasingly coming within the gravitational force of Europe. If a section of the political world refuses to accept this, the City and the legal profession have taken stock of this change. A few years ago, I looked at this phenomenon in my inaugural lecture as Corresponding Fellow of the Royal Netherlands Academy of Arts and Sciences focusing, of course, on the growing impact that the case law of Luxembourg and Strasbourg are having on our own law. But the last decade and a half have also seen our courts (as well as those of Canada, Australia, New Zealand, and South Africa) slowly but steadily entering into the realms of foreign—espe- cially German—law, private as well as public. The citations to this book suggest that its ideas and the material made available by it have facilitated this trend. Certainly, the subsequent appearance of other books or case-books dealing with tort law in a comparative context also shows that the topic this book dealt with first has now almost acquired a niche of its own in the legal curricula of many European Universities.

My own belief is that the “more the merrier”. Yet I have still to convince most writers in this field that our prime target should be judges and practitioners and not academics. For judges, including our own, are increasingly thirsting for new ideas when confronted with problems that do not have obvious or satisfactory answers in the national law. If it becomes known that the judges have an interest in foreign law, as I think they do, practitioners will oblige. Indeed, they are already obliging; and if they go on obliging, the subject will come out of the “ghetto”, as one academic once put it, and acquire a student following that it has not hitherto enjoyed. In the years to come, the growing numbers of law students spending study time abroad will, I am sure, strengthen this trend. It will also increasingly make mature English lawyers aware of the fact that in both the areas of private as well as constitutional law they have a choice to make from different alternatives. For the days when one looked for inspiration to the law of the USA only are, I think, decreasing and the shrewd and intellectually agile lawyer will want to consider not only the American model for, say, federalism or speech rights but also the Canadian, the Australian, and the German. If this book assists this trend it will not only have helped create a new way at making foreign law more user friendly to national lawyers; it will have also helped broaden legal minds. For someone who started and is ending his life as a teacher that can be no mean achievement.

Acknowledgements

A of this size is not written without substantial intellectual debts being incurred towards a host of colleagues and friends who have assisted in its preparation. Thus, first and foremost, I wish to thank my colleagues at the Law Faculty of the LudwigsMaximilians University of Munich in Bavaria. For they hosted my stay with them for five consecutive summers, first as a holder of a Senior Prize awarded by the Deutsche Forschungs Gemeinschaft and then as a Visiting Professor at the famous Law Faculty. It was during this time that this substantial revision took place in the excellent library of the Institute of Comparative Law run so competently by Herr Rols Riss. To the Director of the Institute, Professor Dr Dagmar Coester-Waltjen as well as her predecessor—for many years my mentor in matters of German and comparative law—Professor Dr Dr hc Werner Lorenz I extend my warmest and most profound thanks.

The Munich Law Faculty has always been a hothouse of ideas and, naturally, I benefited greatly from many conversations I have had with some of my colleagues there. It is the nature of such discussions that they do not produce precise debts. Still, I wish to record my thanks to (in alphabetical order) Professors Michael Coester, Dagmar Coester-Waltjen, Claus-Wilhelm Canaris, Andreas Heldrich, Stephan Lorenz, Gerhard Ries, and Peter Schlosser while hastening to add the usual disclaimer that they bear no responsibility for what is contained in this book. Dr Unberath would like to express his gratitude to Professor Joachim Hruschka of the University of Erlangen-Nürnberg to whose chair he was attached while working on this book. Thanks are also due to Professor Reinhard Greger for guidance and advice on the Road Traffic Act regime.

Dr Unberath and I, likewise, benefited greatly from the fact that almost the entirety of our text was carefully read by Professor Dr Wulf-Hennig Roth of the Law Faculty of the University of Bonn. In my experience German scholars excel in the thoroughness with which they scrutinise texts submitted for their comments. Professor Roth did even more. For he corrected with elegance and style and even willingly accepted the possibility that on some matters views could legitimately diverge. He, as well as Dr Jörg Fedtke, formerly of the University of Hamburg and now DAAD/Clifford Chance lecturer in German Law at University College London saved us both of many errors and contributed many helpful additions for which we are both most grateful. We are likewise grateful to Ms Maria Schuster for preparing with exemplary diligence the list of cases that appear at the beginning of this book.

The writing of this book, which started in Germany, was completed in the marvellous Jamail Research Centre of the School of Law of the University of Texas at Austin where its Director Professor Roy Mersky and his helpful staff, notably Jon Pratter and Keith Ann Stiverson, do not know the sentence “this book does not exist”! My debt to Joe Jamail is, however, also a personal one since the Chair I hold at Texas (thanks to the exertions of two Deans—Michael Sharlot and Bill Powers—and my good friend, the late Charlie Wright) is yet another tangible sign of Joe’s uniquely generous spirit. Joe has made for himself a great name as a formidable tort litigator. I hope this book does justice to the subject he has made his own during a lifetime in court.

The second major debt is towards the colleagues and friends who helped with the translations contained in this book. In fact just under half of this book is taken up by translations of German decisions that come from the pens of Kurt Lipsten, Tony Weir, Raymond Youngs, Josephine Shaw, Irene Snook, and the late Harry Lawson (with some help from his late wife Elspeth and myself). The list that follows provides a detailed attribution; but to all these colleagues I wish—yet again—to express my sincere thanks for the professional work they did and the cheerful way they put up with my (occasional) interferences! Harry Lawson, Kurt Lipstein and Tony Weir, of course, deserve additonal thanks since for over thirty years now not only have they helped with translations but also instructed, inspired, intellectually provoked, and even “ticked me off.”

List of Cases Reproduced in This Book and Their Translators