understanding the law in a historical and comparative perspective 239 a very special situation in which Roman law had indeed recognized the enforceability of an informal, unilateral promise. Similar problems have arisen regarding promises with which a creditor intends to release his debtor from liability in German law. After all, § 397BGBappears to entrench the contractual principle when it recognizes the contract of release. It is interesting to see German courts resorting to the same strategies as their English counterparts when they construe a contract where, according to the normal principles of interpretation, no such contract has in fact been concluded.27 This has often been criticized. Essentially, the position in modern German law corresponds to that in Roman law, in natural law theory, and nineteenth-century pandectist writing; it was based, inter alia, on the idea that an obligation created by way of contract could only be extinguished by way of contract (‘actus contrarius’). This is not a convincing argument, and neither are any of the others usually advanced in favour of the contractual principle.28 Legal practice in the eighteenth century appears to have got rid of what effectively constituted an unnecessary restriction of the creditor’s freedom to dispose over claims to which he is entitled.29 A return to that kind of pragmatism does not even require legislative intervention, but can be accomplished by courts and legal writers arguing that the contractual release as laid down in § 397 BGBis just one of two types of release recognized in German law.30 27 See Jens Kleinschmidt, Der Verzicht im Schuldrecht:Vertragsprinzip und einseitiges Rechtsgeschäft im deutschen und US-amerikanischen Recht (Tübingen: Mohr Siebeck, 2004), 44–66. 28 Ibid. 262–312. 29 See Jens Kleinschmidt, ‘§ 397. Erlass’, in Mathias Schmoeckel, Joachim Rückert & Reinhard Zimmermann, Historisch-kritischer Kommentar zum BGB, ii/2 (Tübingen: Mohr Siebeck, 2007), no13; for a comparative discussion, seeTheMax Planck Encyclopedia of European Private Law, ed. Jürgen Basedow, Klaus J. Hopt & Reinhard Zimmermann (Oxford: OUP, 2012), 1446–9 s.v. ‘Release’ by Jens Kleinschmidt. 30 Zimmermann 2005, 483; Kleinschmidt 2004, 316–23.
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