Tradition, Codification and Unification

200 years ago many civil law jurisdictions adhered to exclusive national codifications of private law, and abandoned the old Ius Commune. Other jurisdictions in the civilian tradition did not engage in codifying private law, and continued along lines of authoritative opinions, case law and fragmented legislation. In our contemporary days the shades of national law slowly melt away, and we imagine a future where new common laws will continue to take shape. This book deals with this mirror image and explores the law in its everlasting tension between tradition and change. Historic and comparative analyses from European, Latin-American and South-African jurisdictions provide us with perspectives on the role of substance, methodology, institutions as well as individuals in developments of law towards the future.

TABLE OF CONTENTS Preface ... v J.M. Milo, J.H.A. Lokin and J.M.Smits Tradition, Codification and Unification - an Introduction ... 1 J.H.A. Lokin Two Paradoxes on Codification ... 13 C.J.H. Jansen The Study of Roman Law in the Netherlands in the Early 19th Century ... 17 A.J. van der Walt The Civil - Law Tradition in Constitutional Perspective ... 29 P. van den Berg Constitutive Rhetoric: the Case of the "European Civil Code" ... 45 Dirk Heirbaut Is Germany's Past Europe's future? Unification and Codification of Private Law in 19th Century Germany and Today's Europe ... 71 Elspeth Reid An Older Convergence: the Scots Law of Delict ... 101 Ross Gilbert Anderson Scots Law and the UK Codification of Bills of Exchange... 121 J.M. Milo The First Codification in the Netherlands: Legal Development Through Channels of Tradition and Change ... 145 Table of Contens Janwillem Oosterhuis Convergence and Unification of 19th Century European Commercial Sales Law - why the CESL might just be an Intermezzo in the Game of Unifying European Commercial Sales Law ... 159 Bernhard Kresse Contractual Equivalence and Compensation in Case of the Delivery of non - Conforming goods in Harmonised German Sales and European Consumer Law ... 175 Agustin Parise Civil Law Codification in Latin America: Understanding First and Second Generation Codes ... 183 Rodrigo Momberg Harmonisation of Contract Law in Latin America: Efforts and failures ... 195 C.B.P. Mahe Re - Codification Attemps of French Tort Law: Traditional and Comparative Arguments in the Terre Tort Draft... 209 F. Willem Grosheide Tradition, Codification and Unification of Intellectual Property Law ... 233 Jan Smits Of the Vocation of our Age Against Codification: on Civil Codes in the Information Society ... 245