Tony Weir

Scots Law News has learned with sadness of the death on 13 December 2011 of the distinguished legal academic Tony Weir of Trinity College, Cambridge.  Tony was a Scot, born in 1936 and brought up and schooled in Edinburgh.  He made a major contribution to English law (especially the law of tort) and to comparative law.

Tony Weir had been a Fellow of Trinity since 1962.  At the time of his death he was an Emeritus Reader in Law.  He was probably best-known to law students through his Casebook on Tort, first published in 1967 and subsequently in nine further editions, the last appearing in 2004.  This was rather more than a collection of extracts from leading decisions and became famous for its mordantly witty comments on the situations with which the law had to deal and on the ways in which the judges saw fit to carry out their task and justify their decisions.  As one of your correspondent’s colleagues remarked in recent days, Tony Weir showed that the study of tort law could be fun; but he had serious points to make as well.  One of the epics which your correspondent will long remember is an Edinburgh debate in the David Hume Institute about the “compensation culture”, where, under the urbane chairmanship of Lord Mackay of Clashfern, Tony went head-to-head with Frank Maguire of Thompsons.  Wit and scepticism on one side collided in verbal violence with passion and belief on the other, and the chair only just about kept the peace; yet dinner afterwards was a marvellous occasion where each combatant accepted the other’s virtues while maintaining his own position, despite provocations from mischievous others present.  The death of the two protagonists within months of each other is irony indeed.

Tony was the acknowledged master of the case note in academic journals (above all, the Cambridge Law Journal): terse offerings of sharp legal insight along with the ever-present dry humour which in combination none could rival.  An example can be found at (2002) 6 Edinburgh Law Review 244, but many others are cited in Nick McBride’s provisional bibliography below.  By all accounts coming out of Cambridge in recent days, he was a wonderful teacher and a devoted supervisor of his students, for whom his pastoral care was also profound.  The one occasion on which your correspondent heard a Weir lecture was both deeply instructive and extremely entertaining.  It inaugurated a series on environmental law in Edinburgh and was an assessment of the then recent House of Lords decision, Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264.  The lecturer’s assault on the idea that liability for water pollution should be strict left an audience of largely green persuasion first unbelieving at what they were hearing, then deeply shocked, and finally, and rather guiltily, highly amused even if still un-persuaded.  But at least a brilliant performance had made them think again about their assumptions.  Sadly the lecture was never published, so far as your correspondent is aware; but something of its flavour can be picked up from two case notes in the Cambridge Law Journal at the time of the Cambridge Water case [see (1993) vol 52, 17; (1994) vol 53, 216].

In the world of academic legal research, however, Tony Weir’s international and considerable fame was as a comparative lawyer.  There were perhaps not quite so many articles as case notes, but a number of the former remain well-known decades after their first publication, as for example the classic four-parter in the Tulane Law Review, “Delict and Torts: A Study in Parallel”, co-authored with Pierre Catala and published between 1962 and 1965.  Sir Basil Markesinis, no mean comparatist himself, describes this mighty paper as “one of the most stimulating pieces on foreign law and comparative methodology ever to be written.”  Perhaps, however, Tony’s greatest contribution to comparative law, at least so far as the Anglophone world is concerned, is his translation of Zweigert and Kötz’s Einführung in die Rechtsvergleichung (Introduction to Comparative Law), which has had a remarkable impact from the time of its first appearance in 1977.  Zweigert and Kötz themselves paid Tony this handsome compliment: “Indeed, one American professor of law who is fluent as a native in both German and English went so far as to say that the translation was better than the original, rare though that is, and acceptable, he was kind enough to add, though the original in this case was.”   In a possibly unconsciously Scottish reference, another comparative law great, John Fleming, described Weir’s work on Zweigert and Kötz as making him the Boswell of the German comparatists.  Your correspondent uses the book to this day, even if the use cannot always be readily footnoted.  And Zweigert and Kötz is not the only such essential translation: the conversion of Franz Wieacker’s legal history classic, Privatrechtsgeschichte der Neuzeit, into A History of Private Law in Europe (OUP, 1995) is another boon to those whose lack of German would otherwise disable them altogether from true trans-national scholarship in European legal history.  There were other such unselfish contributions, from the French as well as the German language; it is difficult to think of anyone else who did more to link different linguistic scholarly traditions in Europe.

Yet Tony Weir remained a Euro-sceptic who rejected any idea that the rise of the European Union entailed the development of a European private law.  Perhaps the most interesting instance of this from an Edinburgh perspective was "Divergent Legal Systems in a Single Member State" [1998] Zeitschrift für Europaisches Privatrecht 564-585, an Anglo-Scottish comparison the purpose of which was set out in an early passage: "At a time when there are proposals to unify the private law of the different multilingual components of the European Union … it may be useful to consider how very different, after nearly three centuries of political unification in an unquestionably single market, the laws of Scotland and England continue to be."  Not all Scots would have accepted this as a lesson, at least for Scotland; but no-one could have denied the learning and insight with which it was delivered.   A prophecy was fulfilled: “The tercentenary of the Treaty of Union falls on May 1, 2007, though I don’t expect it to be noticed in England or celebrated North of the Border.”  And there is perhaps a personal note as well: “I speak as a Scot long resident in England, treading a narrow path between the pride of the convert and the guilt of the traitor.”  This reader suspects that in his approach to law Tony Weir, like Lord Mansfield, was anything but a traitor to the Scottish tradition.  It is significant how much of his scholarly output from the beginning appeared in the pages of one or other of the Tulane law journals, engine-houses of the mixed legal tradition; and latterly he made more than one contribution to the Edinburgh Law Review.

One winter’s evening on Edinburgh’s Castle Esplanade, your correspondent pointed out to Tony across the Grassmarket valley the floodlit Renaissance palace in which he (your correspondent) had had the good fortune to receive his schooling, and wondered (innocently, of course) why Mr Weir’s first alma mater was invisible in the darkness over Merchiston to the south-west.  Had we looked to the north and Comely Bank that evening, of course, we might have picked out the other Edinburgh school where Tony was Head Boy, leader of the orchestra and jazz band, and, so we are informed, non-playing captain of the Fourth or Fifth XV.  From the same family source, we learn that “with the exception of Tulane and Trinity, the only other institution which captured his interest as a young man was the Cameronians.  He so much enjoyed National Service with them, here and in Germany, serving as a subaltern that his mother had to disabuse him quite firmly of a plan he had to stay in the Army.  Aside from what with retrospect seems improbable success as a distance runner, the Army also gave him his only opportunity ever to practise the law.  Defending a misbehaved Jock was not quite the sort of controversy with which he would be associated in later life but I believe he secured an acquittal.”

Tony Weir’s most beautiful article, in your correspondent’s opinion, is “Friendships in the Law” published in the 1992 volume of Vernon Palmer’s Tulane European and Civil Law Forum.  In it Tony discusses five friendships, or “relationships to which – to use a lawyer’s expression – lawyers were parties”.  They include some of the great names of the law – Domat, Holmes, Savigny – but most gained their fame outside, or beyond, their profession – Montaigne, La Boétie, Boswell, Jakob Grimm – while some of the other lawyers mentioned had friends – Pascal, Dr Johnson, Harold Laski – whose links with law came through their friendships and intellectual interests rather than from professional or academic commitment.  Yet all the relationships he considered “were good and rich”.  Your correspondent had only intermittent contact with Tony Weir, and that over a relatively short period of some fifteen to twenty years – but “good and rich” was how it seemed throughout.  The tragic sudden-ness of Tony’s death underlines the personal sorrow that he, along with many others, now feels so intensely. 

Bibliography compiled by Nick McBride  

An Introduction to Tort Law (Clarendon Law Series), 1st ed (2002), 2nd ed (2006)
A Casebook on Tort (Sweet & Maxwell), 1st ed (1967), 2nd ed (1970), 3rd ed (1974), 4th ed (1979), 5th ed (1983), 6th ed (1988), 7th ed (1992), 8th ed (1996), 9th ed (2000), 10th ed (2004)
Economic Torts (Clarendon Press, 1997)

'Tort and Insurance on the Highway', in M Andenas et al (eds), Liber Amicorum Guido Alpa: Private Law Beyond the National Systems (BIICL 2007)

‘Tort’ in Barnard, O’Sullivan and Virgo (eds), What About Law? (Hart Publishing, 2007)

‘Two great legislators’ (2006) 21 Tulane European and Civil Law Forum 35
‘Recent developments in causation in the English law of torts’ in Fauvarque-Cosson, Picard and Voinneson (eds), De Tous Horizons: Mélanges Blanc-Jouvan (Société de législation comparée, 2005)
‘Personality rights and the media: national report for England’ in Beater and Habermeier (eds), Verletzungen von Persönlichkeit durch die Media (Tubingen, 2005)
‘Difficulties in transposing Directives’ [2004] Zeitschrift fur Europaisches Privatrecht 595
‘All or nothing?’ (2003-4) 78 Tulane Law Review 511
‘European Directives protective of the individual consumer’ [2002] Economia e diretto del terziario 443
‘Human rights and damages’ (2001) 40 Washburn Law Journal 413
‘English tort law seen from abroad’ in Rider (ed), Law at the Centre: The Institute of Advanced Legal Studies at Fifty (Kluwer, 1999)
‘The law of tort: are legal systems converging?’ in Report of the 1995 Colloquium of the International Association of Legal Science (Buenos Aires, 1999)
‘The staggering march of negligence’ in Cane and Stapleton (eds), The Law of Obligations: Essays in Honour of John Fleming (OUP, 1998)
‘Non-performance of a contractual obligation and its consequences in English law’ in Vacca (ed), Il contratto inadempiuto (Giappichelli Editore, 1998)
‘Divergent legal systems in a single Member State’ [1998] Zeitschrift fur Europaisches Privatrecht 564
‘Recovery in tort for economic loss’ (1997) 94 British Insurance Law Association Journal 14
 ‘Taking for granted – the ramifications of nemo dat’ (1996) 49 Current Legal Problems 325
‘International tendencies in the law of liability’ [1996] Aktuelle Juristiche Praxis 444
‘Die Sprachen des europaischen Rechts. Eine skeptische Betrachtung’ [1995] Zeitschrift fur Europaisches Privatrecht 368
‘Aspects du procès anglais’ in (1995) 39 Archives de philosophie de droit 191
‘Legal services in England’ in Franelle (ed), La Responsabilité des Prestataires de Services (Société de législation comparée, 1994)
‘Errare humanum est’ in Birks (ed), The Frontiers of Liability, Volume 2 (OUP, 1994)
‘Democratic values in the English law of tort’ (1992) 1 Calcutta Law Times 1
‘La notion de dommage en responsabilité civile’ in Legrand (ed), Common Law d’un Siecle L’autre (Editions Yvon Blais, 1992)
‘Contracts in Rome and England’ (1992) 66 Tulane Law Review 1615
‘Friendships in the law’ (1992) 6-7 Tulane Civil Law Forum 61
‘Droits des contrats’ and ‘Responsabilité délictuelle’ in Jolowicz (ed), Droit Anglais, 2nd ed (Précis Dalloz, 1992)
‘Passing of ownership under contract of sale’ in Vendita e Transferimento della Proprieta nella Prospettivo Storico-Comparatisca (Proceedings of a Congress Pisa-Viareggio-Lucca, 1991)
‘Loss of a chance – compensable in tort? The common law’ in Guillod (ed), Développements récents du droit de la responsabilité civile (Centre d’études juridiques européennes Genève, 1991)

‘Governmental liability’ [1989] Public Law 40
‘Products liability and exemption clauses’ in In Memoriam Jean Limpens (Kluwer, 1987)
‘A strike against the law?’ (1986) 46 Maryland Law Review 133
‘Shields and swords’ (1983) 7 Trent Law Journal 1
‘Product liability – some comparative remarks’ in Posch & Schilcher (eds), Rechtsentwicklung in der Produkthaftung (Osterreichische Akademie fur Fuhrungskrafte, 1981)
‘La justice contractuelle’ [1981] Revue Internationale de Droit Contemporain 7
‘French and German judges – creativity in tort’ [1979] Tulane Lawyer 13
‘Compensation for personal injury and death: recent proposals for reform’ in Cambridge-Tilburg Law Lectures, First Series (Kluwer, 1978)
‘Complex liabilities’ in Tunc (ed), International Encyclopedia of Comparative Law, Vol XI – Tort Law, Chapter 12 (1976)
‘The common law systems’ in David (ed), International Encyclopedia of Comparative Law, Vol II – The Legal Systems of the World: Their Comparison and Unification, Chapter 2.III (1974)
‘Abstraction in the law of torts – economic loss’ [1974] City of London Law Review 15
(with Pierre Catala) ‘Delict and torts: a study in parallel’ (1962-3) 37 Tulane Law Review 573 (Part I); (1963-4) 38 Tulane Law Review 221 (Part II); (1963-4) 38 Tulane Law Review 663 (Part III); (1964-5) 39 Tulane Law Review 701 (Part IV)
‘Classification, concurrence and prescription of obligations’ (1962) 36 Tulane Law Review 556
‘Compensability of unforeseeable damage resulting directly from negligent acts’ (1962) Tulane Law Review 556

‘Making it more likely vs making it happen’ (2002) 61 Cambridge Law Journal 519
‘The unwanted child’ (2002) 6 Edinburgh Law Review 244
‘The maddening effect of consecutive torts’ (2001) 60 Cambridge Law Journal 237
‘The unwanted child’ (2000) 59 Cambridge Law Journal 238
‘Down hill – all the way?’ (1999) 58 Cambridge Law Journal 4
‘Suicide in custody’ (1998) 57 Cambridge Law Journal 241
‘Clamping’ (1996) 55 Cambridge Law Journal 423
‘Swag for the injured burglar’ (1996) 55 Cambridge Law Journal 182
‘A damnosa hereditas?’ (1995) 111 Law Quarterly Review 357
‘Rylands v Fletcher reconsidered’ (1994) 53 Cambridge Law Journal 216
‘The case of the careless referee’ (1993) 52 Cambridge Law Journal 376
‘The polluter must pay – regardless’ (1993) 52 Cambridge Law Journal 17
‘Physician – kill thyself!’ (1991) 50 Cambridge Law Journal 397
‘Fixing the foundations’ (1991) 50 Cambridge Law Journal 24
‘Statutory auditor not liable to purchaser of shares’ (1990) 49 Cambridge Law Journal 212
‘Rebuilding defective building law’ (1989) 48 Cambridge Law Journal 12
‘P pays X for the physical damage due to D’s negligence’ [1989] Lloyd’s Maritime and Commercial Law Quarterly 1
‘Liability for knowingly facilitating mass breaches of copyright’ (1988) 47 Cambridge Law Journal 348
‘The answer to Anns?’ (1985) 44 Cambridge Law Journal 26
‘The developer and the clerk’ (1982) 2 Oxford Journal of Legal Studies 440
‘Wrongful life – nipped in the bud’ (1982) 41 Cambridge Law Journal 225
‘The wages of the dead’ (1981) 40 Cambridge Law Journal 20
‘The Pearson Commission Report’ (1978) 37 Cambridge Law Journal 222
‘Suit by first contractor for damage to second contractor’s goods’ (1977) 36 Cambridge Law Journal 24
‘Contract – the buyer’s right to reject defective goods’ (1976) 35 Cambridge Law Journal 33
‘Doing good by mistake – restitution and remedies’ (1973) 32 Cambridge Law Journal 23
‘Local authority vs critical ratepayer – a suit in defamation’ (1972) 30 Cambridge Law Journal 238
‘Nec tamen consumebatur… – frustration and limitation clauses’ (1970) 28 Cambridge Law Journal 189
‘Police power to seize suspicious goods’ (1968) 26 Cambridge Law Journal 193
‘Title to sue in negligence for property damage’ (1968) 26 Cambridge Law Journal 18
‘Discrimination in private law’ (1966) 24 Cambridge Law Journal 165
‘Tort, contract and bailment’ (1965) 23 Cambridge Law Journal 186
‘Chaos or cosmos? Rookes, Stratford and the economic torts’ (1964) 22 Cambridge Law Journal 225
‘Negligence – duty of care – foreseeability’ (1964) 22 Cambridge Law Journal 23
‘Liability for syntax’ (1963) 21 Cambridge Law Journal 216

Book reviews
Carty, An Analysis of the Economic Torts (2002) 118 Law Quarterly Review 164
Ahrens et al (eds), Festschrift fur Erwin Deutsch (2001) 60 Cambridge Law Journal 214
Stein, Roman Law in European History (2000) 20 Legal Studies 142
Bell, Boyron and Whittaker, Principles of French Law (1999) 115 Law Quarterly Review 143
Rose (ed), Failure of Contracts [1999] Lloyd’s Maritime and Commercial Law Quarterly 16
Hoeflich, Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century (1999) 3 Edinburgh Law Review 398
Spier (ed), The Limits of Liability: Keeping the Floodgates Shut, and The Limits of Expanding Liability: Eight Fundamental Cases in a Comparative Perspective; and Koziol (ed), Unification of Tort Law: Wrongfulness (1999) 58 Cambridge Law Journal 643
Cane, Anatomy of Tort Law; and Atiyah, The Damages Lottery (1998) 57 Cambridge Law Journal 204
Odams, Comparative Studies in Construction Law: The Sweet Lectures (1997) 46 International & Comparative Law Quarterly 735
Youngs, Sourcebook on German Law (1995) 54 Cambridge Law Journal 451
Nolte, Beleidigungsschutz in der Freiheitlichen Demokratie (1994) 43 International & Comparative Law Quarterly 482
Von Hippel, Rechtspolitik (1994) 43 International & Comparative Law Quarterly 480
Whitman, The Legacy of Roman Law in the German Romantic Era (1993) 82 Journal of Roman Studies 268
Mullany and Handford, Tort Liability for Psychiatric Damage: The Law of “Nervous Shock” (1993) 52 Cambridge Law Journal 520
Oldham (ed), The Mansfied Manuscripts (1993) 52 Cambridge Law Journal 319
Oda, Japanese Law [1993] New Law Journal 1103
Palmer, Bailment, 2nd ed [1993] Lloyd’s Maritime and Commercial Law Quarterly 275
Weinrib (ed), Tort Law; and Alexander (ed), Contract Law (1992) 51 Cambridge Law Journal 388
Stapleton and Cane (eds), Essays for Patrick Atiyah (1992) 51 Cambridge Law Journal 375
Frey and Morris (eds), Liability and Responsibility (1991) 50 Cambridge Law Journal 553
Cane, Tort Law and Economic Interests (1991) 50 Cambridge Law Journal 551
Zimmermann, The Law of Obligations (1991) 50 Cambridge Law Journal 165
Finn (ed), Essays on Torts (1990) 49 Cambridge Law Journal 356
Frier, A Casebook on the Roman Law of Delict (1990) 49 Cambridge Law Journal 157
Harris and Tallon (eds), Contract Law Today [1990] Lloyd’s Maritime and Commercial Law Quarterly 556
Fleming, The Law of Torts, 7th ed (1989) 48 Cambridge Law Journal 152
Birks (ed), New Perspectives in the Roman Law of Property: Essays for Barry Nicholas (1989) 48 Cambridge Law Journal 510
Treitel, Remedies for Breach of Contract (1989) 48 Cambridge Law Journal 152
Furmston (ed), The Law of Tort [1987] Lloyd’s Maritime and Commercial Law Quarterly 236
Malone, Essays on Torts (1987) 8 Journal of Legal History 383
Schmiedlin, Frustration of Contract (1988) 37 International and Comparative Law Quarterly 452
Faculty of Law of the University of Heidelburg, Richterliche Rechtsfortbildung (1988) 37 International and Comparative Law Quarterly 227
Huffmann, Goverment Liability and Disaster Mitigation (1988) 37 International and Comparative Law Quarterly 221
Collins, The Law of Contract (1986) 45 Cambridge Law Journal 503
Hart and Honoré, Causation in the Law, 2nd ed (1985) 44 Cambridge Law Journal 477
Stein and Lewis (eds), Studies in Justinian’s Institutes in Memory of JAC Thomas (1984) 43 Cambridge Law Journal 392
Honoré, The Quest for Security; and Von Hippel, Der Schutz des Schwaecheren (1984) 43 Cambridge Law Journal 377
Feuerstein and Parry (eds), Multum Non Multa: Festchrift fur Kurt Lipstein (1984) 43 Cambridge Law Journal 177
Cheifetz, Apportionment of Fault in Tort Law (1982) 14 Ottawa Law Review 234
Atiyah, The Rise and Fall of Freedom of Contract [1982] Revue Internationale de Droit Contemporain 265
Stair, The Institutions of the Law of Scotland (1982) 41 Cambridge Law Journal 183
Deutch, Unfair Contracts (1978) 37 Cambridge Law Journal 344
Waddams, Products Liability (1976) 35 Cambridge Law Journal 178
Carter-Ruck, Libel and Slander; and Rubinstein (ed), Wicked, Wicked Libels (1973) 32 Cambridge Law Journal 150
Schlesinger (ed), Formation of Contracts (1969) 27 Cambridge Law Journal 122
Aspects du Droit de L’Energie Atomique (1965-66) 41 British Yearbook of International Law 482
Salmond, Torts, 14th ed (1966) 24 Cambridge Law Journal 141
Coote, Exception Clauses (1965) 23 Cambridge Law Journal 301
Walker, The Scottish Legal System (1964) 22 Cambridge Law Journal 305
Smith, Short Commentary on the Law of Scotland (1963) 24 Louisiana Law Review 149

Bucher, England and the Continent: Distinguishing the Pecularities of English Common Law of Contract (Dike Books, 2009)
Halpérin, The French Civil Code (UCL, 2006)
Zweigert and Kötz, An Introduction to Comparative Law, 3rd ed (OUP, 1998)
Koetz and Flessner, European Contract Law, Vol I (Clarendon Press, 1998)
Wieacker and Zimmermann, A History of Private Law in Europe, with Particular Reference to Germany (Clarendon Press, 1996)
Grossfeld, The Strengths and Weaknesses of Comparative Law (OUP, 1990)
Serick, Lipstein, and Riesenfeld, Securities in Movables in German Law: An Outline (Kluwer, 1990)
Horn, Kötz and Leser, German Private and Commercial Law (OUP, 1981)
Justinian, Digest, Chs XIV, XV (U Penn Press, 1986)