Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - THE GERMAN LAW OF TORTS: A COMPARATIVE INTRODUCTION (2ND EDITION)
THE GERMAN LAW OF TORTS: A Comparative Introduction (2nd Edition). B. S. Markesinis, M.A., Ph.D., LL.D., Denning Professor of Comparative Law, University of London, Professor of Anglo-American Law, University of Leiden. Clarendon Press, Oxford (1990) xlvi and 743 pp., plus 6 pp. Index. Hardback 60; Paperback £27.50.
The first edition of this highly regarded text was greeted by reviewers not only on both sides of the Atlantic, but also by German scholars, as a ground-breaking work in the study of comparative law. Professor Markesinis stated in the introduction to the first edition that his aim was to render the German law of torts accessible to readers from other legal systems, introducing them to a wealth of material valuable in its own right but also providing an insight into alternative strategies for tackling the many shared problem areas of the subject. That the author has succeeded admirably, combining undoubted erudition with accessibility of style is evidenced by the popularity of this book, which went out of print in just three years and his commitment to the advancement of this area of study is demonstrated by his decision to opt for a second edition rather than a reprint.
The structure of this work is itself commendable, the introductory chapter providing a synopsis of the court system and an invaluable insight into German legal culture which sets the material which follows in a coherent context. The introduction also contains the delict provisions of the BGB and a collection of other relevant articles of the German Civil Code. This material, together with other relevant statute law and the case law which is so central to this work is meticulously and fluently translated, conveying the sense and substance of the law and providing a wider access to primary sources for non-specialists than ever before. The Commentary which follows provides a more analytical and detailed treatment of the rights and interests protected by the aforementioned provisions and of the general features of tortious liability in Germany, setting out the theoretical foundations of the law with admirable clarity.
The bulk of this text is formed by an in-depth treatment of case law in specific subject groupings, where the terse judgments of the German courts are analysed, explained and set against the decisions of their American and British equivalents. The technique adopted enables comparison to be made between the approaches adopted by the different legal systems, the careful selection of cases surmounting the difficulty posed by the absence of the idea of the “leading case” in German law. This process of amplification not only clarifies the import of the German decisions but enables the reader to ground his understanding of these cases on a foundation of familiar domestic material, rendering the evaluation of differences and similarities of approach as simple as it is valuable. Of particular interest is the German treatment of economic loss, particularly in the context of negligent misstatement, treated under the auspices of the law of torts in the U.K., yet covered by the law of contract in Germany because of the strict interpretation adopted by the courts of BGB para. 823, this text showing very clearly that neither approach is entirely convincing. The innovative approach adopted in Germany in respect of protection of privacy as an extension of personality rights through the law of torts is also likely to be of interest to British readers, the whole area having been the focus of such controversy of late in this country.
One of the particularly useful features of this edition is the provision of a substantial amount of bibliographical material, which provides an excellent source of additional information for the interested reader to build upon, his appetite having been whetted by the substantial introduction provided in this book.
In conclusion, as the result of the reunification of Germany this already important legal system seems certain to grow even greater in importance and this book should help the interested lawyer to gain a valuable insight into one of its most important areas. In addition, this
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