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Mixed Legal Systems in Comparative Perspective
Property and Obligations in Scotland and South Africa
Edited by Reinhard Zimmermann, Kenneth Reid, and Daniel Visser
954 pages
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234x156mm
978-0-19-927100-9
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Hardback
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10 March 2005
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This item is printed to order. Items which are printed to order are normally despatched and charged within 5-10 days.
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- A study of mixed legal systems (ie systems which combine common law and civil law), therefore of value for the ongoing project of developing a private law of Europe
- Novel method of comparative law: each topic examined collaboratively by an expert from each jurisdiction
- A comparative study of the law of property and the law of obligations
Placed uniquely at the intersection of common law and civil law, mixed legal systems are today attracting the attention both of scholars of comparative law, and of those concerned with the development of a European private law. Pre-eminent among the mixed legal systems are those of Scotland and South Africa.
In South Africa the Roman-Dutch law, brought to the Cape by the Dutch East India Company in 1652 was, from the early nineteenth century onwards, infused with and re-moulded by the common law of the British imperial master. In Scotland a more gradual and elusive process saw the Roman-Scots law of the early modern
period fall under the influence of English law after the Act of Union in 1707. The result, in each case, was a system of law which drew from both of the great European traditions whilst containing distinctive elements of its own.
This volume sets out to compare the effects of this historical development by assessing whether shared experience has led to shared law. Key topics from the law of property and obligations are examined, collaboratively and comparatively, by teams of leading experts from both jurisdictions. The individual chapters reveal an intricate pattern of similarity and difference, enabling courts and legal writers in Scotland and South Africa to learn from the experience of a kindred jurisdiction. They also, in a number of areas, reveal an emerging
and distinctive jurisprudence of mixed systems, and thus suggest viable answers to some of the great questions which must be answered on the path towards a European private law.
Readership: Academics, practitioners (especially large law firms and members of the Faculty of Advocates in Scotland), and judges.
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Edited by Reinhard Zimmermann, Director of the Max-Planck-Institute of Comparative Private Law and Private International Law, Hamburg; Professor of Private Law, Roman Law and Comparative Legal History, University of Regensburg, Kenneth Reid, Professor of Property Law, University of Edinburgh, and Daniel Visser, University of Cape Town Contributors:
Professor Reinhard Zimmermann (Max-Planck-Institut für
ausländisches und internationales Privatrecht, Hamburg)
Martin Hogg (University of Edinburgh)
Professor Gerhard Lubbe (University of Stellenbosch)
Professor Jacques
du Plessis (University of Stellenbosch)
Professor W W McBryde (University of Edinburgh)
Mrs Justice Carole Lewis
Laura J Macgregor (University of Edinburgh)
Professor Alfred Cockrell (University of Witwatersrand)
Professor Hector MacQueen (University of Edinburgh)
Professor David Johnston (Faculty of Advocates)
Dr Phillip Sutherland (University of Stellenbosch)
Mr Justice Fritz Brand
Dr Douglas Brodie (University of Edinburgh)
Professor Dale Hutchison (University of Cape Town)
Professor Eric Clive (University of Edinburgh)
Professor Robin Evans-Jones (University of Aberdeen)
Dr Alastair Smith (University of South Africa)
Sandra Eden
(University of Edinburgh)
Professor Jopie Pretorius (University of South Africa)
Professor Angelo Forte (University of Aberdeen)
Professor J P van Niekerk (University of South Africa)
Professor Charl Hugo (University of Stellenbosch)
Philip Simpson (Faculty of Advocates)
Professor Daniel Visser (University of Cape Town)
Professor Niall Whitty (University of Edinburgh)
Anton Fagan (University of Cape Town)
Professor Joe Thomson (University of Glasgow)
Professor Max Loubser (University of Stellenbosch)
Elspeth Reid (University of Edinburgh)
Professor Jonathan Burchell (University of Cape Town)
Professor Kenneth Norrie (University of Strathclyde)
Francois du Bois (University of Cape Town)
Elspeth Reid (University of Edinburgh)
Professor John Blackie (University of Strathclyde)
Mr Justice Ian Farlam
Professor Daniel Visser (University of Cape Town)
Professor Niall Whitty (University of Edinburgh)
Saul Miller (University of Edinburgh)
Mr Justice Deon van Zyl
Professor Niall Whitty (University of Edinburgh)
Professor Kenneth Reid (University of Edinburgh)
Professor C G van der Merwe (University of Aberdeen)
Professor David Carey Miller (University of Aberdeen)
Anne Pope (University of Cape Town)
Professor Duard Kleyn (University of Pretoria)
Scott Wortley (University of
Strathclyde)
Professor William M Gordon (University of Glasgow)
Professor Marius de Waal (University of Stellenbosch)
Professor Derek van der Merwe (Rand Afrikaans University)
Scott Wortley (University of Strathclyde)
Professor Gerrit Pienaar (Potchefstroom University)
Dr Andrew Steven (University of Edinburgh)
Professor Marius de Waal (University of Stellenbosch)
Professor R R M Paisley (University of Aberdeen)
Professor George Gretton (University of Edinburgh)
Mr Justice P Nienaber
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"The depth of analysis, the approach and the international scholarly cooperation this book reflects make it a wonderful example of how to do comparative law." - Jan M. Smits, Rabels Zeitschrift Vol 72, 2 "..written with thoughtfulness, care, and enthusiasm.." - Edinburgh Law Review "This splendid volume, the product of some fifty jurists of largely Scottish and South African origins, under the guidance of Reinhard Zimmermann, Daniel Visser and Kenneth Reid, is testimony to the remarkable resilience of major, transnational legal traditions and their ability to survive and prosper in the face of colonialist and nationalist restraints...The book is devoted to substantive private law and is devided into
three Parts, treating successively Contract (the largest Part), Delict and other Obligations arising by Law, and Property...The main interest of the volume for South African and Scottish lawyers..will be in the deailed, comparative reflection on the content of each national law...this book is significant and welcome.." - Thomas Finkenauer
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Professor Reinhard Zimmermann: Introduction
Part 1: Contract
Martin Hogg and Professor Gerhard Lubbe: Formation
Professor Jacques du Plessis and Professor W W McBryde: Defects of Consent
Mrs Justice Carole Lewis and Laura J Macgregor: Interpretation
Professor Alfred Cockrell and Professor Hector MacQueen: Illegality
Professor David Johnston and Dr Phillip Sutherland: Jus Quaesitum Tertio / Stipulatio Alteri
Mr Justice Fritz Brand and Dr Douglas Brodie: Good Faith
Professor Dale Hutchison and Professor Eric Clive: Breach
Professor Robin Evans-Jones and Dr Alastair Smith: Sale
Sandra Eden and Professor Jopie Pretorius: Surety / Caution
Professor Angelo Forte and Professor J P van Niekerk: Agency
Professor Charl Hugo and Philip Simpson: Hire / Lease
Part 2: Delict
Professor Daniel Visser and Professor Niall Whitty: Overview
Anton Fagan and Professor Joe Thomson: Negligence
Professor Max Loubser and Elspeth Reid: Strict Liability
Professor Jonathan Burchell and Professor Kenneth Norrie: Defamation
Francois du Bois and Elspeth Reid: Neighbour Law
Professor John Blackie and Mr Justice Ian Farlam: Disgorgement of Benefits as a Result of Wrongs
Part 3: Obligations arising neither from Contract nor from Delict
Professor Daniel Visser and Professor Niall Whitty: Unjustified Enrichment
Saul Miller: Restitution following Failed Contracts
Mr Justice Deon van Zyl and Professor Niall Whitty: Negotiorum Gestio
Part 4: Property
Professor Kenneth Reid and Professor C G van der Merwe: Overview
Professor David Carey Miller and Anne Pope: Acquisition of Ownership
Professor Duard Kleyn and Scott Wortley: Co-ownership
Professor William M Gordon and Professor Marius de Waal: Servitudes
Professor Derek van der Merwe and Scott Wortley: Good Faith
Professor Gerrit Pienaar and Dr Andrew Steven: Rights in Security
Professor Marius de Waal and Professor R R M Paisley: Trusts
Professor George Gretton and Mr Justice P Nienaber: Cession / Assignation
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The specification in this catalogue, including without limitation price, format, extent, number of illustrations, and month of publication, was as accurate as possible at the time the catalogue was compiled. Occasionally, due to the nature of some contractual restrictions, we are unable to ship a specific product to a particular territory. Jacket images are provisional and liable to change before publication.
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