knowledged today that undue influence is both subtler and better adapted to dealingwith the suretyship cases than the contra bonos mores rule, for it rightly focuses on the process of contract formation rather than the result agreed upon by the parties.12 It is not surprising, therefore, that we find the device in all model rules on European contract law developed since the 1980s by international groups of academics.13 Disputes about the law of succession in England were long decided by another set of courts than transactions inter vivos, which explains why the approach towards undue influence differs from that in contract law. The probate courts are more reluctant to apply the doctrine, even if it is recognized that ‘a person in the last days or hours of his life may become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result’.14 Whether English law fails to offer an adequate measure of protection is subject to dispute. Remarkably, over the twentieth century the English courts have established a ‘suspicious circumstances rule’ covering cases where a person involved in drawing up a will has benefited under that will.15 In Germany we have § 14 Heimgesetz (Nursing Home Act) prohibiting wills in favour of the testator’s nursing home or of persons employed in it; apart from that, however, there are no protective devices such as undue influence, metus reverentialis, or suspicious circumstances. Nonetheless, also in Germany, testators in an aging society require specific protection against being subject to undue influence. There has therefore been a recent proposal to restrict the tes12 See, for example, Nils Jansen, ‘Seriositätskontrollen existentiell belastender Versprechen: Rechtsvergleichung, Rechtsgeschichte und Rechtsdogmatik’, in Reinhard Zimmermann (ed.), Störungen derWillensbildung bei Vertragsschluss (Tübingen:Mohr Siebeck, 2007), 125– 62. 13 See, for example, Art. 4:109 Principles of European Contract Law. For comment, see Sebastian Lohsse, ‘Art 4:109’, in Nils Jansen & Reinhard Zimmermann (eds.), Commentaries on European Contract Laws (Oxford: OUP, 2018). 14 Wingrove vWingrove and Others (1885) LR11P & D81 (82 f). For amore detailed discussion, see Reinhard Zimmermann, ‘‘Nemo ex suo delicto meliorem suam condicionem facere potest’’, in Stefan Grundmann (ed.), Festschrift für Klaus J Hopt (Berlin: De Gruyter Recht, 2010), 287–8. 15 See Roger Kerridge, inParry and Kerridge: The Law of Succession(13th edn, London: Sweet & Maxwell, 2016), 84–99. part v • comparative legal history • reinhard zimmermann 236
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