1 In Cox v. Troy (1822) 5 B & All. 474, at 480; E.R. 1264, Best J. boldly asserted that the authority of Pothier's Treatise on the Low of Obligations was “the highest that can be had, next to a decision of a court of justice in this country”. Pronouncements such as this continued throughout the 19th century, and by its close Savigny (and other Germans, such as Gierke) were exercising a considerable intellectual influence on both English and American jurists.

2 See Lipstein, K., “The History of the Contribution to Law by German-speaking Jewish Refugees in the United Kingdom” in Mosse, W., Co-Ordinating Editor, Second Chance: Two Centuries of German-speaking Jews in the United Kingdom (1991) 221–227Google Scholar and, more recently, Der Einfluß deutscher Emigranten auf die Rechtsentwicklung in den USA und in Deutschland (Lutter, M., Stiefel, E.C., Hoeflich, M. H., eds.) (1993)Google Scholar.

3 Gedichte, Zahme Xenien, (Berliner Ausgabe), Vol. V, p. 687Google Scholar.

4 In this paper my comments will focus mainly on English and German law, not only because these systems have, in recent times, represented my own prime interests, but also because they formed the basis of the legal learning of many of the comparatists whose work I admire. But most of my observations also apply to other legal systems (e.g., the French) which have just as much to offer to the English lawyer.

5 A good discussion, in the context of pure economic loss, can be found in Norsk Pacific Steamship Co. Ltd. v. Canadian National Railway Co. [1992] 1 S.C.R. 1021 (Supreme Court of Canada), discussed by Fleming, (1993) 1 Tort L. R. 68–74Google Scholar; Markesinis, (1993) L.Q.R. 5-12.

6 See, for example, Lord Bridge in D & F Estates Ltd. and Others v. Church Commissioners for England [1988] 1 A.C. 177, at 210. Cf. Hayes, , “After Murphy: Building on the Consumer Protection Principle” (1992) 12 O.J.L.S. 112CrossRefGoogle Scholar.

7 Among recent studies describing the influence of German scholars on American legal thought see Hoeflich, , “Savigny and his Anglo-American Disciples” (1989) 37 Am. J. Comp. L. 17CrossRefGoogle Scholar; Kegel, , “Story and Savigny” (1989) 37 Am. J. Comp. L. 29CrossRefGoogle Scholar; Whitman, , “Commercial Law and the American Volk: A Note on Llewellyn's German Sources for the Uniform Commercial Code” (1989) 37 Am. J. Comp. L. 156Google Scholar; Grossfeld, and Winship, , “The Law Professor Refugee” (1992) 18 Syracuse J. of Int'l L. and Commerce 3Google Scholar — all with rich further references. Reimann, , “The Historical School Against Codification: Savigny, Carter, and the Defeat of the New York Civil Code” (1989) 37 Am. J. Comp. L. 95CrossRefGoogle Scholar. See, also, the more recent literature quoted in n. 2 above.

8 Steffen, , “Die Bedeutung der “Stoffgleichheit” mit dem “Mangelunwert” für die Herstellerhaftung aus Weiterfresserschäden” (1988) VersR 977Google Scholar. For a German-American discussion of the topic, see Bungert, , “Compensating Harm to the Defective Product Itself — A Comparative Analysis of American and German Products Liability Law” (1992) 66 Tulane L. R. 1179Google Scholar. One must not assume, however, that English judges are incapable of very sophisticated analyses of doctrinal issues. For a recent illustration of my point, see Sir Michael (now Lord) Mustill's, “Anticipatory Breach”, Butterworth Lectures 1989-1990 (1990) 1–78Google Scholar.

9 Faust, II, 2038-9 (“Grey, my dear friend, is all that theory is, and green the golden tree of Life”).

10 Holmes, O. W., The Common Law (1881) 1Google Scholar.

10a Discussed in my inaugural lecture at University College London under the title “A Matter of Style”, to be published in the October 1994 issue of the Law Quarterly Review.

11 Barak, Aharon, “The Israeli Legal System — Tradition and Culture” (1992) 40 HaPraklit 197Google Scholar.

12 The institution of Ombudsman, and its reception by English law, offers a good illustration of this process.

13 As Professor David has done (English Law and French Law (1980) 50)Google Scholar since: (a) judges at the Conseil d'Etat are not, strictly speaking, magistrats and (b) the magistrature includes the parquet (which is another distinctive French institution). Here David is right in translating magistrature as the bench.

14 Though Professor Rudden, in [1987] C.L J. 162, was inclined to call this a “bold” (too bold?) anglicisation of the German term. The Wörterbuch für Recht, Wirtschaft und Politik, II, (4th ed., 1992)Google Scholar by Dr. Erika Dietl, Professor Egon Lorenz (and others) renders the term as a “duty to safeguard traffic; duty (or obligation) of occupier to make land or premises safe for persons or vehicles”. In my opinion classic monographs such as Professor von Bar's Verkehrspflichten (1980) suggest that the dictionary definitions may be too narrow and that nowadays “duties” in multifarious situations (beyond traffic and premises) can be brought under the heading. Incidentally, the use of the term in the plural is also indicative of the fact that German law, like English law, does not accept that the latin-phrased exhortation neminem laedere constitutes a legal principle.

15 For example, the Wörterbuch für Recht, Wirtschaft und Politik by Dr.Dietl, Clara-Erika, Professor Egon Lorenz (and others) (1956)Google Scholar. The expanded and revised 4th edition of 1992 defines the term as “damage which has spread [into] the defect-free portion of purchased property from a defective part”.

16 “The Comparative Aspects of Legal Terminology” (1938) 12 Tulane L. R. 401, at 403Google Scholar (emphasis added). Weston's, MartinAn English Reader's Guide to the French Legal System (1991)Google Scholar makes, especially in its first three chapters, some very interesting points about the difficulties of overcoming conceptual differences.

17 (1987) 35 Am. J. Comp. L. 857, at 858Google Scholar reviewing the first edition of my book The German Law of Torts (1986). The third edition will appear in 1994.

18 BGH NJW 1965, 1955; JZ 1966, 141 note Lorenz.

19 Ross v. Counters [1980] Ch. 297.

20 To n. 18, supra, add: BGH NJW 1977, 2073.

21 Biakanja v. Irving 320 P.2d 16 (1958); Lucas v. Hamm 364 P.2d 685 (1961); Heyer v. Fleig 449 P.2d 161 (1969).

22 In my “An Expanding Tort Law — The Price of a Rigid Contract Law” (1987) 103 L.Q.R. 354Google Scholar I gave my reasons why I think the proper characterisation of the cause of action has practical significance. See, also, my “Doctrinal Clarity in Tort Litigation: A Comparative Lawyer's Viewpoint”, (1991) 25 The International Lawyer 953Google Scholar. If my approach is heretical, I am happy to know that I shall burn in good company since similar views have been expressed by Professor Kötz, in his “The Doctrine of Privity of Contract” (1990) 10 T.A. Studies in L. 195Google Scholar.

23 Prosser, , Handbook of the Law of Torts, (4th ed., 1971) 634Google Scholar.

24 Para. 831 BGB. For further details in English see Markesinis, , The German Law of Torts: A Comparative Introduction (2nd ed., 1990) 499-502; 576–606Google Scholar.

25 For example, Zweigert, and Kötz, , An Introduction to Comparative Law (2nd ed., 1987) vol. II, 145et seq. (translation by Weir, Tony.)Google Scholar

26 Lawson, and Markesinis, , Tortious Liability for Unintentional Harm in the Common Law and the Civil Law (1982) vol. II, p. 98Google Scholar.

27 Exemplified by Murphy v. Brentwood DC [1991] 1 A.C. 398.

28 [1980] Ch. 297. Ross was, in fact, recently challenged in White v. Jones (1993), [1993] 3 WLR 730, as having become untenable after Murphy v. Brentwood D.C. [1991] 1 A.C. 398; but the Court of Appeal refused to accept this argument. This English decision, factually similar to BGH NJW 1965, 1955=1966 JZ 141, is discussed by Lorenz and Markesinis in (1993) 56 MLR 558-563. An appeal against this decision will be heard by the House of Lords on March 7, 1994.

29 “Privity of Contract: Contracts for the Benefit of Third Parties”, Consultation Paper No. 21 (1991).

30 “Contract Beneficiaries in German Law”, chapter three in Markesinis, B. S., gen. ed., The Gradual Convergence: Foreign Ideas, Foreign Influences and English Law on the 21st Century (1994)Google Scholar.

31 “The Doctrine of Privity of Contract”, supra n. 22.

32 “Liability for Information and Opinions Causing Pure Economic Loss to Third Parties: A Comparison of English and German Law”, chapter three in B. S. Markesinis, gen. ed., The Gradual Convergence, chap. 2, supra n. 30.

33 Markesinis, supra n. 24, at 43-51; 233-239.

34 For example, Professor von Bar, in B. S. Markesinis, gen. ed., The Gradual Convergence, supra n. 32, believes that Lord Haldane, who studied in Göttingen, may have been influenced by Germanic ideas in his judgment in Nocton v. Lord Ashburton [1914] A.C. 932. In his Autobiography (3rd ed., 1921) 21Google Scholar, he certainly admits to studying the works of influential jurists like Jhering. See, also, Honoré in his comments on Hedley Byrne v. Heller published in (1965) 8 J.S.P.T.L. 284, at 295.

35 Eyck, E., Bismark and the German Empire (1968) 17Google Scholar.

36 Krell v. Henry [1903] 2 K.B. 740.

37 Zivilrechtsfälle ohne Entscheidungen (4th ed., 1881), case no. LXX, p. 145Google Scholar. In his introduction to the book, especially p. 5, Jhering argues that he has “always believed that [he] could introduce his students more effectively to the law by paying special attention in his lectures to its casuistry”. He continues: “Nobody who has had any experience as an examiner will doubt that a student is only able truly to comprehend those ideas which he can conceptualise in the concrete form of actual cases”. I strongly believe that, in the comparative context, his reference to students can be taken to refer even to mature lawyers. To put it differently, the best way to introduce them to a foreign system is through the medium of cases dealing with factual situations with which they are familiar. Von Jhering's book reached its ninth edition by 1901 — surely a sign that his case law method had struck a sensitive chord, even though nearly one hundred years later this little book is unknown to most contemporary German lawyers.

38 First appeared in the 1862 edition. See, now, Winscheid (-Kipp), (6th ed., 1900) para. 97 et seq.

39 Die Geschäftsgrundlage (1921). The theory has, nowadays, lost its appeal but another academic, Larenz, Karl, in his Geschäftsgrundlage und Vertragserfüllung (1963)Google Scholar, has come up with a more modern alternative.

40 Grossfeld and Winship, supra n. 7, suggest a number of reasons why Llewellyn (and the Realists) were not always willing to refer openly to the German parentage of some of their ideas.

41 (1930) 178.

42 (1989) 37 Am. J. Comp. L. 1, at 6Google Scholar.

43 Karl Llewellyn's words are particularly apposite. Over sixty years ago he wrote: “What is striking and mysterious in comparing two legal systems is the ways they are similar and the ways they are different. Much of what follows will be of immediate use to German lawyers only insofar as the contrasts between German and American law make them more sharply aware of the fundamental character of their own legal system. By seeing how another … advanced culture can make entirely different arrangements for things they have always supposed to be matters of course — things that obviously must be this way and not the other — they also may gain a critical outlook and an expanded capacity for adapting their own system's traditional institutions to the practical needs of real life as they evolve. On the other hand, much in this book addresses problems that are virtually identical in both systems. Recognising and solving a problem becomes remarkably easier when it shows up wearing a peculiar foreign costume”. Gewirtz, P. and Ausaldi, M., The Case Law System in America, (English ed., 1989) 1Google Scholar.

44 An interesting example involving the donation of human organs discussed by American, Canadian, and German courts but not yet tackled by English courts is given in Markesinis, The German Law of Torts, supra n. 24, at 461-469 and 486-488. In Professor Glendon's, Mary Ann words (Abortion and Divorce in Western Law: American Failures, European Challenges (1987) 1)Google Scholar: “The hope is that history and comparison will give us insight into our own situation and that they may occasionally help us find, as John P. Dawson once put it, ‘our own paths through the forest’” (the quotation from Dawson comes from his Unjust Enrichment: A Comparative Analysis (1951) 111).

45 Fleming's, main thesis in his excellent The American Tort Process (1988) viGoogle Scholar.

46 E.g., Markesinis, and Deakin, , Tort Law (3rd ed., 1994) chap. 8Google Scholar.

47 I coined this term (and discussed the phenomenon in the context of German family law) in the Shimizu Lecture delivered at the L.S.E. under the title “Comparative Law — A Subject in Search of an Audience” and published in (1990) 53 M.L.R. 1, esp. 7–13Google Scholar.

48 (1866) LR 1 Ex. 265; (1868) LR 3 HL 330.

49 See Lawson and Markesinis, Tortious Liability for Unintentional Harm in the Common Law and the Civil Law, supra n. 26, pp. 57 et seq.

50 “Generally the jury is not informed that plaintiff's attorney will receive a large portion of the plaintiff's recovery in contingent fees or that personal injury damages are not taxable to the plaintiff and are normally deductible by the defendant. Hence the [plaintiff] rarely actually receives full compensation for his injuries as computed by the jury. The collateral source rule partially serves to compensate for the attorney's share and does not actually render “double recovery” for the plaintiff … In sum, the plaintiff's recovery for his medical expenses from both the tortfeasor and his medical insurance programme will not usually give him “double recovery”, but partially provides a somewhat closer approximation to full compensation for his injuries”. 2 Cal. 3rd 1, 12-13, 465 P. 2d 61 (1970) (Emphasis added).

51 See, for example, Mr. Justice Neely's comments in How Courts Govern America(1981). The point is discussed in a more scholarly manner by Fleming, supra n. 45, at chap. 2.

52 The comparison with England is interesting: and I have attempted it briefly in my “The Constructive and Destructive Role of the Comparative Lawyer” (1993) 53 RabelsZ 438–448Google Scholar.

53 Professor Fleming's masterly description of this trend deserves careful reading. He states: “…the new ideology betrays little concern for the cost of its judicial welfare programme, in the insouciant or naive belief that insurance and deep pockets will have taken care of the problem. The tort system has thus become about the only segment of the economy not subject to the discipline of prudent resource allocation: it is a programme without a budget”. Supra n. 45, at 13.

54 See supra n. 52, above. Fleming, supra n. 45, at 38-40, rightly suggests that this “judicial interpretation” of the legislator's role may, in part at least, be due to legislative inertia.

55 For further statistical details see my “Litigation Mania in England, Germany and the U.S.A.: Are We So Very Different?” (1990) C.L.J. 233–276Google Scholar.

56 Aharon Barak, supra n. 11.

57 Murphy v. Brentwood DC, supra n. 27, criticised by Professor Fleming, , “Requiem for Anns” (1990) 106 L.Q.R. 525, at 530Google Scholar; SirCooke, Robin, “An Impossible Distinction” (1991) 107 L.Q.R. 46, at 58–63Google Scholar.

58 For example in (1993) L.Q.R. 5-12. Equally critical of the House of Lords and admiring of the Canadian Supreme Court's decision is Fleming, , (1993) 1 Tort L. R. 68–74Google Scholar.

59 And acknowledged in the opinion of Advocate General Warner in case 17/74, Transocean Marine Paint Assn. v. Commission [1974] ECR 1063 and the opinions of Advocates General Warner and Slynn in case 155/79, A.M. & S. Europe v. Commission [1982] ECR 1575, at 1619 and 1642.

60 Jowell, and Lester, in Jowell, and Oliver, , eds., “New Directions in Judicial Review”, (1988) Current Legal Problems 51Google Scholar.

61 The Character of the Long Parliament, reproduced in The Works of John Milton, (1938) vol. XVIII, p. 254Google Scholar.

62 SirBingham, Thomas, “There is a World Elsewhere — The Changing Pattern of English Law” (1992) 41 I.C.L.Q. 513CrossRefGoogle Scholar.

63 In (1921) 34 Harv. L. R. 227, at 228Google Scholar.