At the beginning of the twentieth century, the German-speaking lands were dominated by two states both of which presented, and still present, considerable difficulties for those attempting to understand them. In the north, the German Reich had been formed in 1871 in the wake of a successful war against France. Its formation was also the final stage in a prolonged struggle for power between the dynastic house of Prussia and the Habsburgs. The Franco-Prussian war was accompanied by the invocation of German unity. In speeches, newspapers and subsequently in memoirs, the war was presented as a justified defence of German honour, supposedly insulted by the French. Extensive analogies were drawn between 1870 and 1813, when Prussia had risen against Napoleon after a series of defeats and humiliations.

Yet there were problems with this triumph of German unity, for the separate states, including Prussia, continued to exist within the new Reich. Indeed, the historian Friedrich Meinecke later recalled how he had become aware of a latent problem, namely the ‘defensive struggle’ of the ‘Prussian state personality’ against the rising tide of national unity. The difficulty was compounded by the fact that formally the Reich was the creation of the German princes, and, in principle at least, considerable authority was held by the council, to which all member states sent delegates. Shortly after the creation of the Reich, Otto von Bismarck had declared to the parliament of the Reich: ‘Sovereignty does not lie with the Kaiser; it lies with the totality of the united governments’.

The unconditional surrender of Germany and Allied assumption of full sovereign power raised the question of whether Germany had ceased to exist as a state. According to the old international concept of debellatio or subjugation, total defeat and the disintegration of all indigenous political institutions entitled the victor to assume full sovereignty and to annex the defeated nation. Although the Allied powers explicitly disavowed any intent to annex Germany, they acted in other respects as if the doctrine of subjugation was applicable. They recognised no principled limit on their authority, not even Hague Regulations governing the law of occupation, for those Regulations enjoined respect for existing laws, and the Allies obviously did not intend to respect the laws of the Third Reich. They assigned some parts of German territory to other states and eventually established two separate states on the bulk of German territory. It is not surprising that most German legal and political theorists reacted to this situation by asserting the continuity of a German state in the hope that this might give them some leverage vis-à-vis the occupying powers. After the effective division of Germany, it served as part of the basis for the desire for reunification.

Occupation, revelations about the crimes of the Third Reich, and division also inevitably raised questions about the nature of German identity. Reservations about the supposed deficient national self-consciousness of Germans surfaced in opinion polls. The politician Ernst Reuter asked: ‘Have we Germans really been a true nation?’

‘German unity came like a thief in the night – no one had expected it.’ This was, of course, not the first time in German history that the unexpected had happened. The apparent stability and permanence of the Cold War division of Germany turned out to be no more firmly rooted than the monarchical principle that had dominated the lands of the Germans until defeat at the end of the First World War. There were, however, enormous differences between the two transitions. After 1918, new constitutions had to be written and implemented against a background of political turbulence, including violence, and the shock of defeat and a detested peace settlement. After 1989, it proved possible to incorporate East Germany into the constitutional order of the Federal Republic without the formation of a new constitution despite the fact that the latter had clearly been envisaged by the Basic Law.

The apparent ease of reunification was deceptive in several senses. In the first place, the rapid process of reunification unsettled some observers. Indeed, the prospect of reunification had not seemed attractive at all to those who still saw the kleindeutsch Germany of Bismarck as a more or less unmitigated disaster. Thus, Joschka Fischer warned that ‘The German national state of Bismarck, the German Reich, had twice overrun the world with wars, which brought with them unspeakable suffering’. The fact that it took place without a fundamental debate about the future state of the Germans compounded the reservations of those with strong attachments to the achievements of the Federal Republic.

Any attempt to survey German political thought in the twentieth century is bound to be influenced by awareness of the turbulence of German political history and especially by the shadow of the Third Reich, the crisis and collapse of the Weimar Republic that preceded it and the division of Germany that followed it for almost half a century. If one considers the historical context of German political thought a little more widely, that impression of turbulence is enhanced, at least for the first half of the century. At the beginning of the twentieth century, German political theorists inhabited not only the recently formed German Reich to the north but also the multi-national Habsburg Empire to the south. Many of the theorists prominent in the early chapters of this account were born in or influenced by the peculiar nature of that empire. Its collapse at the end of the First World War left behind a largely homogeneous German Austria that was subsequently incorporated into the Third Reich and then re-established as an independent state at the end of the Second World War. Not surprisingly, this political discontinuity is reflected in many accounts of the development of German political thought.

According to Wilhelm Hennis, despite what he described as the ‘German misery’ of the preceding centuries, the German lands had not seen anything comparable to the crisis of legitimacy experienced in France and England in the religious wars of the sixteenth and seventeenth centuries until 1933. Only in the twentieth century did Germany, the ‘belated nation’, experience an analogous crisis ‘with all that goes with it: exile on a massive scale, “internal emigration”, fanaticism, collapse of civil order, finally ethically motivated resistance’.

This volume set out initially to test the claim that, as combinations of Civil and Common Law influences, the mixed systems of contract law in Scotland and South Africa have in some sense anticipated the content of the Principles of European Contract Law (PECL) concluded and published in 2003 by the unofficial Commission on European Contract Law presided over by Professor Ole Lando (Copenhagen). In a way, therefore, the volume was supposed to build on the foundations laid by a trilogy of historical and comparative studies on Scots and South African law, culminating in a volume affectionately dubbed Double Cross, but in reality entitled Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004). At the Edinburgh conference where the papers were first presented in December 2004, however, it became clear that the studies could and should go much further. For example, how far might the Scots and South African contract laws benefit from reform along the lines proposed by PECL? And given that PECL appeared likely to become the basis for some sort of European contract law (see further below), what criticisms might be made of it in the light of experiences made in Scotland and South Africa? Nor is PECL the only possible model for a European – or indeed global – contract law. Account has also to be taken of such projects as the (also unofficial) Code of Contract Law prepared by the Academy of European Law under the leadership of Professor Giuseppe Gandolfi (Pavia) and of the Principles of International Commercial Contracts (PICC) first published by UNIDROIT in 1994 and issued in a second edition in 2004.

GOOD FAITH AND FAIR DEALING IN PECL

Good faith is a powerful concept in PECL. Almost from the outset, Article 1:201 PECL declares that “each party must act in accordance with good faith and fair dealing”, and that this “duty” may not be excluded or limited by the parties. Comment A says that the Article “sets forth a basic principle running through the Principles”, while Comment B adds: “Its purpose is to enforce community standards of decency, fairness and reasonableness in commercial transactions.” Even the recognition of parties' freedom to enter into a contract and determine its contents is made “subject to the requirements of good faith and fair dealing” (Article 1:102 PECL). Amongst the various purposes for which the Principles are to be interpreted and developed, “the need to promote good faith and fair dealing” is listed first, ahead of “certainty in contractual relationships and uniformity of application” (Article 1:106 PECL).

The constant conjunction in PECL of good faith with fair dealing indicates that overall an objective standard is intended, rather than a subjective one of simple honesty. Comment E to Article 1:201 PECL says:

There are links to other concepts in PECL. Comment A says that Article 1:201 PECL is a companion to the Article on usages, which makes binding between the parties agreed, established or generally applicable and reasonable usages and practices (Article 1:105 PECL). In this way are ideas about “community standards”, as well as the standards the parties set themselves, articulated in the actual text.

BACKGROUND

A third-party contract is concluded where one person, the debtor or promisor, agrees with another, the promisee, to perform an obligation to a third party. Third party contracts are now enforced in most jurisdictions. Under the influence of the Civil Law, they are recognised in the two mixed legal systems of South Africa and Scotland as well as in Article 6:110 PECL.

In the past the doctrine of privity of contract combined with the doctrine of consideration stood in the way of recognition of such contracts in England. Both mixed legal systems have been contrasted with English law in this respect. If the law in England had continued on this path, it would have been difficult to find the type of common ground that is necessary for a proper comparative analysis. However, English law underwent radical change in 1999 and it now recognises a highly sophisticated third-party contract in terms of a new statute which is the product of a comprehensive comparative investigation of Continental as well as Commonwealth sources. Suddenly the mixed legal systems are playing catch-up. In this contribution the rules on third-party contracts in Scotland, South Africa, PECL and England will be compared from the perspective of a lawyer whose home system is a mixed one.

WHY SHOULD THE LAW ALLOW THIRD-PARTY CONTRACTS TO BE ENFORCED?

According to the principle of privity of contract, a contract may create rights and obligations only for the parties who conclude it. Hence, a person who is not a party to a contract cannot derive rights, duties or contractual remedies from it. A third-party contract negates this principle. The promisor undertakes to the promisee to perform an obligation to the third party and the third party then receives rights by virtue of the contract between promisor and promisee.

INTRODUCTION

Chapter 7 of PECL deals with the performance of obligations. The focus of this contribution is on the performance of a particular type of obligation, namely the obligation to pay money, or, in other words, on payment. Two questions relating to payment dealt with in PECL are considered here in comparative perspective namely: (1) the form and manner of payment; and (2) payment by a third party.

FORM AND MANNER OF PAYMENT

South African and Scots law

The point of departure in both South African and Scots law is that payment must be in legal tender, i.e. notes and coins. The amount that the creditor is compelled to accept in coin is, however, statutorily limited. A creditor may reject payment in foreign currency unless otherwise agreed in the contract. Despite being widely accepted in Scotland, Scottish bank notes are not legal tender, whether in Scotland or elsewhere in the United Kingdom. They are promissory notes widely accepted and negotiated.

Payment in cash, however, is very often unpractical and unusual. Various other manners of payment have developed in the course of time such as payment by cheque, credit card, and, mainly for payments in international contracts, letters of credit. Due to the widespread use of such alternative methods of payment it is somewhat divorced from reality to regard them as the exception and legal tender or money as the rule.

Aldous Huxley writes that ‘nations are to a very large extent invented by their poets and novelists’ (1959: 50). Although by talking about ‘invention’ Huxley may have exaggerated the nature of the link between nation building and literature, this book subscribes to the broad thrust of his statement by examining the role literature plays in constructing, articulating or challenging interpretations of national identities in the Middle East. Thus, most of the chapters in this book are devoted to Arabic literature – here broadly defined as literature in Arabic by Arab writers – owing to the demographic dominance of the Arabs in this part of the world. The remaining chapters delve into Hebrew literature, Arabic literature in translation and Arab literature in its trans-national mode as expressed in a language other than Arabic, in this case English. In terms of genre, the book covers poetry and the novel in their capacity as the prime examples of high culture, as well as oral or ‘folk literature’ in the modern period as an expression of the localisation of the lived socio-political experience of a national group in a ‘here’ and ‘now’ that invokes the heroism of the past. In terms of provenance, a few chapters deal with the literary expression of Palestinian nationalism as the enunciation of a ‘stateless’ or ‘refugee’ nation, while other chapters cover the construction of national identity in Egypt, Sudan, Lebanon and Israel, thus providing an array of geographies and sociopolitical contexts that can add to our understanding of the interaction between literature and the nation in the Middle East.

Literature is a highly effective vehicle of expressing national energies, conflicts and aspirations. Literary translation may help to get them across to another nation where they will be received and interpreted according to the state of political and inter-cultural contacts between source and target literatures at the time when a particular translation is made and published. In fact, it is precisely the nature of these contacts that rules two complementary elements critical to both the creation and reception of literary translations. It is responsible for answering, first the question of whether a particular text is to be translated at all, and if so – why, by whom, where it will be published – and next, the question of how it will be received by target readers – whether ignored, praised or rejected.

The present chapter will try to answer these questions with regard to two important segments of translation, of both classical and modern Arabic literature into Hebrew, representing two opposite poles from the advent of Zionism in Palestine to the present day (1868–2005). The first pole demonstrates the way translations from Arabic into Hebrew were used to help consolidate Jewish identity during the earliest stage of Jewish nation building in Palestine (late nineteenth and early twentieth centuries). The second demonstrates the earliest stage of recognition of the Palestinian national identity by Israeli Jewish culture (1970). Thus the two politically opposed sides of the Jewish (later Israeli)-Arab conflict in Palestine found within the same literary system some support for their respective national claims of their right to exist, though separated by almost a century and under completely different political circumstances.

The subject of this study was inspired by the seemingly unanswerable question asked by a colleague at a conference. ‘Where is Palestine, then?’ she wanted to know. The more thought I gave it, the more I realised Palestine has remained a question whose answer was like the Hindu meditational practice called ‘neti, neti’. Whenever a thought comes into the mind, you negate it by saying to yourself ‘neti, neti’, meaning ‘not this, not this’. Thus Palestine is not the West Bank, and it is not Gaza; and it is not the West Bank and Gaza combined. It is not the Palestinian Authority; and it is not Israel. It is not even historic Palestine except as a dream. Palestine exists in exile as a signifier whose signified does not match its shape or magnitude. To a large extent then, this nation exists in the dream of signification projected on it by its members because the historical process that would create a correspondence between signifier and signified seems to be endlessly postponed. Like the Buddhist Self, it is something that is, and is not; it is both present and absent. More than anything else, it is perhaps a metaphysical condition resembling Hamlet's dilemma. ‘Nothing is left for us,’ says Mahmoud Darwish, ‘except the weapon of madness [al-junun].

Late twentieth-century Palestinian literature is generally divided into two periods, that between 1948 and 1967, and that after 1967. Within these two major divisions, however, the period of the early 1960s stands out. It is in this extended moment that the idea of returning to Palestine is given narrative form: in the first visible stirrings of broad political organisation and armed struggle, through the establishment of the Palestine Liberation Organisation, and in literature. The exemplary literary expression of this narrative may be found in two novels by Ghassan Kanafani, Rijal fi al-Shams (Men in the Sun), published in 1962, and Ma Tabaqqa Lakum (All That's Left to You), which appeared in 1966. Kanafani was arguably the key Palestinian literary intellectual of the 1960s and his literature played a significant role in shaping how the post-1948 Palestinian experience has been understood. This chapter argues that gender is intrinsic to the narratives established in these novels, and that in them new forms of masculinity are constructed in relation to national loss and national restoration. Moreover, a fuller analysis of the mutual construction of masculine and national identity reveals a dynamic and historically specific symbolism at work in the well-known association between land and woman.

Born in Acre in 1936, Kanafani left with his family for Lebanon in 1948. Following his attendance at Damascus University, he went to teach in Kuwait. He returned to Lebanon in 1960 and worked for several newspapers.

INTRODUCTION

Throughout Europe, assignment is understood as involving a transfer of a personal right of a creditor to a third party (the assignee), the latter, replacing the former (the assignor) as creditor in respect of the related obligation. Common also is an understanding of assignment as an institution that straddles both the law of property and the law of obligations. As a disposition by a creditor of an incorporeal asset, assignment is an institution of the law of property. Because it in addition effects a substitution of creditors, assignment also reveals affinities with the law of obligations. It is accordingly not surprising that although national solutions might differ in matters of detail, comparative treatments are readily able to deal with assignment in the European context by means of a common conceptual vocabulary. The assignment regimes of the various national systems also address common concerns of policy. The need to ensure that rights are freely disposable without having to obtain the consent of the debtor is balanced by a shared concern to ensure that the debtor's position is not rendered more burdensome by the assignment. The interests of would-be assignees must also be protected against subsequent disposals by the assignor and balanced against those of creditors seeking to attach the assets of the assignor and parties interested in his insolvency. There is, accordingly, some basis for a presumptio simulitudinis in respect of the broad outlines of the European understanding of this part of law.

The assignment provisions of PECL (in Part III, Chapter 11) endeavour to provide a framework of basic, general doctrinal concepts (Grundregeln) to address similar concerns.

INTRODUCTION

This paper will focus on a key document within the process of the Europeanisation of private law legal scholarship, the Principles of European Contract Law. I would like to demonstrate that these Principles can be seen as a contemporary manifestation of a genuinely European tradition – a tradition which used to be labelled ius commune. And I would like to argue that they can serve as a catalyst for a Europeanisation of private law “from within” and “from below” (as opposed to European legal unification by means of legislation, i.e. unification “from outside” and “from above”). In a way, therefore, the Principles mark the contours of a new European ius commune and can fulfil a function resembling that of its historical predecessor. Before these arguments can be developed a few words have to be said about the Principles of European Contract Law and about the old ius commune. It should also be noted, at the outset, that this paper does not deal with private law in general but merely with one of its constituent elements: the law of contract. One reason for this is immediately obvious: the Principles of European Contract Law constitute the most advanced and internationally most widely noted academic project aiming at the Europeanisation of private law. Similar sets of Principles for other areas of the law are only just beginning to be published. This is hardly accidental. For, on the one hand, the law relating to commercial contracts has often tended to be the pace-maker for legal harmonisation.

Prepared by the Commission on European Contract Law

CHAPTER 1: GENERAL PROVISIONS

Section 1: Scope of the Principles

Article 1:101: Application of the Principles

1. (1) These Principles are intended to be applied as general rules of contract law in the European Union.

2. (2) These Principles will apply when the parties have agreed to incorporate them into their contract or that their contract is to be governed by them.

3. (3) These Principles may be applied when the parties:

1. (a) have agreed that their contract is to be governed by “general principles of law”, the “lex mercatoria” or the like; or

2. (b) have not chosen any system or rules of law to govern their contract.

1. (4) These Principles may provide a solution to the issue raised where the system or rules of law applicable do not do so.

Article 1:102: Freedom of Contract

1. (1) Parties are free to enter into a contract and to determine its contents, subject to the requirements of good faith and fair dealing, and the mandatory rules established by these Principles.

2. (2) The parties may exclude the application of any of the Principles or derogate from or vary their effects, except as otherwise provided by these Principles.