Heinz Kötz, Europäisches Vertragsrecht

Date01 May 2018
Pages317-319
DOI10.3366/elr.2018.0494
Author
Published date01 May 2018

A book on European contract law may be compared to a book on American contract law: books about subjects that exist only in the pages of academic text. Neither reflects a system of law applied by national or state courts. And yet it is the work of the pre-eminent scholars in these fields, whether Professor Kötz or Professor Farnsworth, that often contains more insight than works focussed on a single national system. In the world of European private law, the name of Professor Kötz is a kite-mark of quality. The publication of the first edition of Hein Kötz's peerless book in 1996 marked an epoch in the development of European private law. The success of the original may be due, in part, to Kötz's rare ability to present incisive commentary, reflecting exceptional labour, in highly readable German prose; and perhaps also in part due to his most fruitful collaboration with the inimitable intellectual and stylistic powers of the late Tony Weir for the purposes of presenting his scholarship to the English-speaking world. Indeed, this dilatory review has now been overtaken by the publication of the second edition in English, by Oxford University Press, of European Contract Law (2017), translated by Gill Mertens. In what follows, however, all page references are to the German edition.

The very title of the German book was itself a challenge to orthodoxy. For until Kötz's follow-up book dealing with domestic German contract law in 2009 – Vertragsrecht (2009; second edn 2013) – the German law student would not encounter a book on Contract Law (learned, instead, in the Allgemeiner Teil and in Schuldrecht I and II). In adopting his title, therefore, Kötz can be seen to have practised what he preached: cherished national concepts, in Germany as in France or England or Spain or, for that matter, in Scotland, do not always pass muster when exposed to the acid test of international and comparative scrutiny. Characteristic of the Kötz approach is his ability to interrogate the detail of national laws, examining the tools that the major European systems – the German, English and French in particular – deploy to tackle the legal problems of practice. The discussion often broadens out to encompass the approach found in the Austrian, Dutch, Italian, Spanish and Portuguese codes, as well as of that archetypal European, but non-EU system, Swiss law.

In conception, Kötz's book was to be the first of two volumes; the second, by Axel Flessner, was to cover performance...

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