McGill Law Journal ~ Revue de droit de McGill
GRADUATION ADDRESS MCGILL UNIVERSITY
Reinhard Zimmermann*
EDITORS NOTE
MOT DE LA RDACTRICE
Professor Reinhard Zimmermann is
currently the Director of the Max
Planck Institute for Comparative and
International Private Law in Hamburg,
Germany. In 2010 he received an Hon-
orary Doctorate of Law from McGill
University, and the following text is
transcribed from his speech to the
graduating class. Professor Zimmermann
is a leading expert in both the common
law and civil law traditions, and has
taught at many of the worlds finest law
schools throughout his career. His posi-
tion as one of the worlds leading figures
in comparative law gives his words
much weight, and this speech repre-
sents the spirit that has evolved within
the McGill Law Journal, especially
since the inception of the McGill Law
transsystemic program a decade ago.
Le professeur Reinhard Zimmermann
est actuellement directeur du Max
Planck Institute for Comparative and
International Private Law Ham-
bourg, en Allemagne. En 2010, il a re-
u un doctorat honorifique en droit de
lUniversit McGill. Ce texte est la
transcription du discours quil a pronon-
c devant la cohorte de finissants. Le
professeur Zimmermann est un expert
minent de la common law et du droit
civil. Tout au long de sa carrire, il a
enseign dans de nombreuses coles de
droit qui figurent parmi les meilleures
au monde. Sa notorit mondiale en
tant quexpert du droit compar donne
un gage de crdibilit ses paroles. Ce
discours reprsente lesprit qui a volu
au sein de la Revue de droit de McGill,
et ce, surtout depuis la cration, il y une
dcennie, du programme transsystmique
au sein de la Facult de droit.
* Director, Max Planck Institute for Comparative and International Private Law. Ham-
burg, Germany. On 4 June 2010, McGill University awarded Professor Zimmermann
the degree of Doctor of Laws, honoris causa.
Citation: (2010) 56:1 McGill LJ 231 ~ Rfrence : (2010) 56 : 1 RD McGill 231
Reinhard Zimmermann 2010
232 (2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Chancellor Arnold Steinberg, Principal Heather Munroe Blum, Chair
of the Board Kip Cobbett, Dean Daniel Jutras, Mr. Justice Nicholas
Kasirer, distinguished faculty members, parents, friends, and most of all
fellow graduates.
The theme of my graduation address is legal history and comparative
law. Let me very briefly confront you with three characteristic texts and
their impact.
Some grain merchants sail from Alexandria to the famine-stricken
island of Rhodes, where grain has become a very precious commodity.
May the merchant whose vessel arrives first sell his grain to the starving
Rhodians without indicating that various other vessels are about to arrive
with the result that the price of grain will drop dramatically? Or is he
under a duty of disclosure? This is a problem raised by Marcus Tullius
Cicero in his work De officiis and it has been discussed, over the centuries,
by generations of lawyers. Today it is as relevant as it was in Roman
times, in France or Germany as much as in England or Canada.
Situations where we have an asymmetrical distribution of information
occur particularly frequently in business-to-consumer relations. And
European Union legislation has thus established a comprehensive system
of duties to inform in order to redress that imbalance. The extent of such
duties, and whether they also exist in business-to-business relations
remains subject to considerable dispute.
Passons au deuxime texte. Une personne dpose une pe chez un
ami. Quand elle revient trouver son ami aprs quelques semaines, elle est
devenue folle. Ce cas a t discut, lui aussi, par Cicero. Selon Cicero,
lami nest pas oblig de rendre lpe. Cest un texte tudi avec la mme
intensit travers les sicles que mon premier exemple. Le texte de
Cicero constitue lun des points de dpart de la doctrine de la clausula
rebus sic stantibus. Celle-ci prvoit que tout contrat conclu est sujet une
condition tacite selon laquelle les circonstances fondamentales, base
desquelles le contrat a t conclu, nauront pas chang. Cette doctrine a
t renforce par St. Thomas dAquin dun point de vue de la philosophie
morale. En effet, St. Thomas dAquin ne considrait pas comme pcher
linexcution dun contrat lorsque les circonstances avaient chang. Les
rdacteurs du code civil allemand avaient rejet la doctrine de la clausula
rebus sic stantibus. Tout de mme, ce concept a trouv sa place dans le
droit allemand grce la jurisprudence et bas sur le concept gnral de
la bonne foi. Les systmes plus modernes comme les Principles of
European Contract Law proposent des versions intitules change of
circumstances .
GRADUATION ADDRESS MCGILL UNIVERSITY 233
The next case is from a fifteenth century treatise from Naples. A
husband secretly enters the room where his dying wife is engaged in
making her will. He bends his face over hers and entreats and flatters her
into making a legacy of immovable property to him. This legacy was
subsequently held to be invalid, and the Neapolitan jurists, in this
context, resorted to the notion of metus reverentialis, reverential fear,
which had been established in medieval law on the basis of individual
points of departure from the Roman sources. In English law, the doctrine
of undue influence was developed to cope with this type of situation. In
continental legal systems, however, metus reverentialis was forgotten.
Courts and legal writers in Germany were thus confronted with a
difficulty when they had to deal with cases where a husband persuades
his wife to act as surety for his debts vis–vis a bank. A decision by the
Federal Constitutional Court was required to induce the Federal Supreme
Court to invalidate contracts of suretyship far exceeding the means of the
surety, and concluded under the influence of an emotional attachment.
Effectively, therefore, the courts have reintroduced the notion of undue
influence, or metus reverentialis, into German law under cover of the boni
mores provision contained in the Code.
What do these three case studies have to tell us? They all lie at the
intersection of legal history, comparative law, and modern legal doctrine;
that is, of what are usually taken to be three distinct disciplines within
the field of legal scholarship.
Today, particularly in codified legal systems, we are used to regarding
our private laws as comprehensive and closed systems of legal rules
constituting an autonomous interpretational space. Thus, in Germany as
much as in France or Spain, the intellectual horizon of lawyers was
limited by the rules and principles contained in the respective codes. This
is an ideology that has also shaped the research programme of legal
history, for scholarship in legal history has thoroughly historicized itself.
It aims to discover the past purely for its own sake.
Ever since I studied law at the University of Hamburg I have found
this separation of
law, and doctrinal
scholarship unsatisfactory; and one of the central aims of my work is to
overcome what I regard as an unfortunate narrowing of the perspective. A
study merely of the modern legal systems as we find them today will
reveal a long list of commonalities and differences. If one wants to know
how these differences and commonalities can be explained, one has to
adopt, in addition, a historical approach. There may be cultural, social, or
economic differences;
there may be historical accidents and
misunderstanding; lawyers may have latched on to different layers, or
sources, within one and the same tradition; and so on. It is this kind of
comprehension that paves the way for rational criticism and organic
legal history, comparative
(2010) 56:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
234
development of the law. The past, of course, does not justify itself; nor
does it necessarily contain the solutions for present day problems. But the
law constitutes a tradition, and an appreciation of that fact is the first and
essential prerequisite for devising appropriate solutions for the present
day. Duties to disclose and dealing in good faith, change of circumstances,
and the effect of undue influence on wills and contracts: these are all
issues that every modern legal system in the Western world has to
grapple with. We can all learn from each other but we can do this so much
better when we understand how we got where we are now; how, in other
words, the tapestry of our modern legal systems has been created.
At the McGill Faculty of Law you have decided to pull down the walls
that still prevent lawyers in Europe from considering themselves
European lawyers. I think we can learn very much from this encouraging
experience of a legal education that is not essentially tied to the sources of
one legal system only. It widens the perspective horizontally and, at the
same time, provides an ideal opportunity for extending it also vertically:
to look at the common law and the civil law as two traditions and, partly
at least, as two modern manifestations of one and the same, a Western
legal tradition. It is, therefore, a great honour and pleasure for me to
accept an honourary degree from a law faculty with whose approach I feel
so much in harmony. I am profoundly grateful to become an alumnus of
this centre of excellence and I thank you very much, Dean Jutras, for your
exceedingly kind and generous words of introduction. Finally I wish you,
the graduates of this law faculty, well in whatever professional career you
decide to pursue and wherever you decide to pursue it. You are
particularly well equipped to face the challenges of a world whose laws
are no longer kept in neatly isolated national boxes.
