nental European tradition. Since the Wills Act of 1837, the English common law and the legal systems influenced by it are regarded as strongholds of the witnessed will.57 In Germany today we recognize the notarial will and the holographwill as regular wills.58 It appears to be a deeply entrenched and self-evident element of a German testator’s private autonomy that anyone who wants to save himself the trouble of consulting a notary is at liberty to write his will himself, within the four walls of his private study. And yet its introduction in 1900 was preceded by a smallscaleKulturkampf. For the holograph will was an import from France and it was regarded, particularly in Northern Germany, as alien to the traditions prevailing on this side of the Rhine, and likely to cause the greatest distress and resistance.59 Itwas, indeed, thewitnessedwill that had been, from the Middle Ages onwards, the only regular private will in the tradition of the ius commune, prevailing in Germany until the advent of the BGB;60 and it was only by a small margin of votes and at the last stage of the deliberations leading to theBGBthat the holograph will was eventually adopted (causing, so it was reported, ‘general rejoicing’ in the Prussian Rhine Province). If something can be learnt from this episode, then it is that legal rules and institutions tend to be placed on the shrine of national cultural heritage once they have been adopted and used for some time, no matter whether they originated elsewhere. It is interesting to see that before the enactment of the Wills Act, the holograph will had been recognized also in England for a long time, and yet it is the witnessed will that is today regarded as a characteristic feature of the English legal tradition.61 57 For details, see the contributions by Roger Kerridge, Nicola Peart, Ronald J. Scalise, Marius J. deWaal, and Kenneth G. C. Reid in Reid et al. 2007, 305–328, 329–56, 357–80, 381– 403, 404–431. 58 § 2231 BGB; for analysis, see Reinhard Zimmermann, ‘Testamentary Formalities in German Law’, in Reid et al. 2007, 175–220. 59 Monika Beutgen, Die Geschichte der Form des eigenhändigen Testaments (Berlin: Duncker & Humblot, 1992) 39–47; Eile Götz Hosemann, ‘Von den Bedenken gegen das Testieren “im stillen Kämmerlein”; Die Geschichte des eigenhändigen Testaments in Deutschland, dargestellt aus Anlass des 200. Geburtstags des Badischen Landrechts’, Rheinische NotarZeitschrift [2010], 520–9; Zimmermann in Reid et al. 2007, 182–7. 60 See, for example, Windscheid & Kipp 1906, § 541. 61 Richard H. Helmholz, The Oxford History of the Laws of England, i: The Canon law and eccleunderstanding the law in a historical and comparative perspective 247
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