Monday 24 June 2019

Is Britain still that generous country which once gave a home to a Jewish, boy refugee called Guenter Treitel who became the Godfather of English Contract Law ?

Guenter Treitel, who has died at the age of 90 was once described by principled champion of basic human rights, free speech and democracy, the late Law Lord, Johan Steyn as 'one of the most distinguished academic writers on the law of contract in the English speaking world' and was clearly Britain's leading authority on English contract law. It was, perhaps, no accident that
in his choice of Law as his chosen profession, Guenter followed in the footsteps of his distinguished father and uncle, the more so since he spent his early years as a Jewish boy living in fear in a Nazi Germany where the rule of law was laid aside.

He was born in Berlin in the Autumn of 1928, the son of Hannah, a kindergarten teacher and Theodor, who along with his brother Richard, was a successful lawyer working for the entertainment industry and the Social Democratic Party in the Weimar Republic. As a small boy he grew up in  a well-off family with connections to characters from the Weimar cultural scene, the Berlin intelligentsia and leftwing political figures. Here his parents can be seen seated on the extreme left at a family gathering in Berlin. 

He would have become increasingly aware of its strong Jewish faith and the welcome it gave to  rabbis of all denominations to his home and he probably attended his elder brother, Kurt's bar mitzvah at Berlin's largest synagogue, the Levetzowstrasse. 

Guenter's life changed radically when Hitler and the anti-semitic Nazi Party came to power in Germany in 1933. Theodor lost his job as public notary and the family were forced to smaller, but still quite comfortable quarters in Berlin. In the Spring of 1935 he started school at the age of six, but when Hitler passed the Nuremberg Decrees he was expelled from school along with the other Jewish children. He was seven years old.

After attending a number of other schools, he joined his older brother, Kurt at the American School in Berlin with a view to learning English. The school was run by the charismatic headmaster Gregor Zeimer, who protected the Jewish children by hiding their names from the Nazis. His wife Edna served as the primary school and music teacher. As his school report showed him to be largely 'very satisfactory' with the exception of 'self discipline' in which he was merely 'satisfactory.' Nevertheless, he later said that "You will look in vain for any sign in that report of a future Oxford Law Professor."

Guenter recalled in 2012 that the school also "had a side benefit : it provided a sort of daily oasis of protection from the persecution and the stress when one was in danger of being verbally and sometimes even physically abused."

He also recalled that the "Nuremberg Laws also had a more insidious effect - they changed social attitudes. Before 1935 it was still perfectly possible for Jewish and non-Jewish children to make friends at school. I had a 7th birthday party and quite a lot of friends of mine from school who were not Jewish came to that party, but that all ceased really. Such associations were frowned on by the regime. There was also an increasing practise,  places of entertainment, restaurants, hotels, soon to put up the dreaded notice which read 'Juden Unerwünscht', 'Jews not desired.' In other words, they no longer admitted Jewish guests."

As a small boy he regretted the fact that "we always used to go on seaside holidays in Germany. That was not possible after 1935." He did recall that "at the back of the Berlin Zoo was a playground and this was popular among Jewish children because it provided some protection from the increasing violence that one encountered on the streets."

Then "things began to get serious in 1938 and the first thing we noticed as children was that one of our uncles was suddenly not at home and our parents told us he had gone off on a business trip. It was dangerous to tell children the truth at that time because children might talk out of turn and then there would be a lot of trouble." 

The uncle who had been sent to the concentration camp at Sachsenhausen emerged towards the end of the year. This was a German who had fought on the Western Front during the First World War, had been wounded twice and had been awarded the iron cross.

Guenter recalled that "when he came out, I shall never forget this, he not only looked emaciated, he had been quite a well-upholstered gentleman, before this experience, there was a look in his eyes, a sort of hunted look in his eyes which I shall never forget." It was after his uncle's incarceration that his father made the first moves to get the family out of Germany.

'Kristallnacht' or the Night of Broken Glass, was a pogrom against Jews carried out by the Nazi Party's SA paramilitary forces and civilians throughout Germany on 9–10 November 1938. 
The authorities looked on without intervening as the shards of broken glass littered the streets after the windows of Jewish-owned stores, buildings and synagogues were smashed. Jewish homes, hospitals and schools were ransacked as the attackers demolished buildings with sledgehammers. The rioters destroyed 267 synagogues throughout the Reich, over 7,000 Jewish businesses were damaged or destroyed, 30,000 Jewish men were arrested and incarcerated in concentration camps and hundreds were murdered.

At the start of the pogrom his father and brother Kurt temporarily disappeared. Tipped off by a neighbour that the Gestapo were coming for them, they raced across Berlin as synagogues burned and windows smashed and made it safely to the house of family friends, Albert and Martha Horlitz, who risked their lives to hide them.
It would be many years before Guenter learnt that 'Kristallnacht prompted a debate in the House of Commons where, as he recalled : "members on all side of the House expressed shock and revulsion at the brutality and cruelty of the events of  Kristallnacht. 
The important thing for children was in the course of that debate, the Home Secretary at that time, Samuel Hoare, outlined the scheme to allow children to come to this country from Nazi occupied Europe if they were sponsored." He continued : "So far as I know the United Kingdom was the only Western country to have such a scheme and not enough is made of that point of which I think this country deserves a great deal of credit."

One of Guenter's uncles, who had married an English woman, was prepared to act. with his wife, as a sponsor for him and his older brother Kurt and an application was made for them to be given a place on a kindertransport to take them out of Germany. While in transit in Germany he was forced to wear a name tag identical to brother Kurt. 

They sailed from Hamburg in an American ship to his "immense feeling of relief when I walked up the gang plank of that ship in Hamburg. I still didn't feel quite safe while the ship was tied up. I thought 'they can still come and get me.' But I went to bed, I went to sleep and I woke up and I heard the ship's engines going I felt the movement of the ship and I felt I'm out !"

They landed in Britain in on the 24th March 1939 but, to his disappointment, the Aunt and Uncle were expecting a 14 year old relative and not a ten year old boy and as a consequence he found himself alone and the Sainsbury home at 47 Lytton Grove, Putney, in South London in Putney along with 20 other refugee boys, most of who would never see their families again. The house, which had been rented and staffed by Lord Sainsbury and Lord Rothschild, offered a home to some of those for whom no foster families were available and here he was schooled and fed English delicacies that took some getting used to like kippers, stews and custard and cared for by Matron Sabakin with her helpers, Miss Turner and Miss Griffith.

He remembered that he went down with german measles and his infection of the other children led to the school's isolation and hospital walks on Putney Heath. His initiation to life in Britain was eased by the fact that, in his 4 years at the American School in Berlin he became fluent in English and spoke it, albeit with an American accent.

July his mother, father and younger sister Celia, arrived in Britain on an American visa but there was insufficient money for him to join them. He was now attending West Hill Primary School in Wandsworth and after the outbreak of the Second World War and the bombing of London he was evacuated with the school to Reading, where he was initially billeted on a family on a council housing estate. He was moved again, into a slum area of Reading after the family’s adult daughter, who was married to an RAF sergeant, felt uncomfortable about the the presence of a boy who wrote to his parents in German. He finally moved to a home in a slum area before rejoining his family at the end of 1940.

A scholarship now took him to Kilburn Grammar School for Boys, from where he won another and gained a grant from the Ministry of Education when he was 18 in 1945, which took him off to read law at Magdalen College, Oxford.  He recalled : “All this in spite of the fact that I was still classified as an enemy alien and as such I had to report to the police both in London and Oxford at the beginning of every term.”  Many years later he would sum up his life with a six-word quote from Shakespeare’s 'As You Like It' and Duke Senior's speech which begins with “Sweet are the uses of adversity.”

In his first term at Magdalen in 1946 he received a letter in German from his Uncle Richard at Dagendorf in Germany : 

'Dear Günter, 

'Today I have the great pleasure to be allowed to greet you as an Oxford student. Someone who has done 93 terms greets a student in his first term. The German uncle is pleased that you're there however, even more so, admires England's generosity because England has opened for you a path to its world famous Oxford University. Only I, who has been in public life as long as I have, can value what England has done for you and how you have to be grateful to that country. You will recognise when you are older that a country like England has shown you no prejudices. Show your gratitude to this country with all your ability and strength.' 

He became a British citizen in 1947 successfully completed his B.A and Bachelor of Civil Law and then, after a brief period as a lecturer at the LSE, he began to practise in court. In 1952, returned to Oxford as a lecturer and then took up a Fellowship at Magdalen in 1954, remaining there until 1979. when he was appointed to the Vinerian Professorship of English Law and moved to All Souls.

In 1983 he was appointed one of 'Her Majesty's Counsel learned in the law' Queen's Counsel, an appointment made from within the legal profession on the basis of merit rather than a particular level of experience.  He probably revelled in the delightfully anachronistic way he now wore a silk gown, had 'taken silk' and was now known as a 'silk.'

He himself maintained that his concentration on contract law came about by chance, because the publisher, Stevens and Sons, offered him a choice between contract or administrative law as possible subjects for a textbook. As a result, what was to be his seminal work, 'The Law of Contract', was published when he was 34 in 1962 and he went on to produce another 11 editions, the last when he was 75 in 2003.

The revered Professor of English Law at Oxford in the last decades of the last century had come a long way from little Jewish boy, suffering from Nazi persecution who produced an indifferent school report at the American School in Berlin in the 1930s. As a result of the exercise of his formidable intellect he was now playing a significant role in developing the law. 

In the 'Essays on the Law of Contract in Honour of Guenter Treitel,' published in 1997, the late Lord Browne-Wilkinson, a judge who served as a Lord of Appeal in Ordinary, wrote in the forward : 'Few contemporary lawyers have played as big a role in developing the law, primarily because his writings are the product of careful and principled thought founded on an exact and honest analysis of the existing case law.' Two years later in his 1999 'The Law of Contract,' Guenter played a role in that development when he defined a contract as : 'An agreement giving rise to obligations which are enforced or recognised by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties.'

The general public would have no knowledge of practitioner works relating to the law of contracts, either 'Carver on Bills of Lading' or 'Benjamin’s Sale of Goods' and 'Chitty on Contracts' but his involvement in 'Chitty' lasted 47 years, from the 23rd edition when he was 40 in 1968 to the 32nd edition when he was 87 in 2015. The greatest recognition of his importance came when his work was much cited in court. 

In addition, his 'Remedies for Breach of Contract' in 1988 and his 2001 Clarendon Lectures, published as 'Some Landmarks of Twentieth Century Contract Law' in 2002 and his 'Frustration and Force Majeure' in 2004, all bore the Treitel hallmark of careful and principled thought. 

In 1996 the country which had adopted him knighted for his 'Services to Law' and by this time he had almost become the quintessential English gentleman, having served as a member of the Council of the National Trust from 1984 to 1993 and a trustee of the British Museum from 1983 to 1998. He had also fallen into the habit of reading Jane Austen every day, taking the novels in strict rotation and had even written an article about her treatment of the law, which appeared in the centenary issue of the Law Quarterly Review.

For recreation he enjoyed the films of the Marx Brothers and old-style 'chivalrous' westerns and was undoubtedly familiar with Fred Zinnemann's 1952 'High Noon' starring and starring Gary Cooper.

as a town marshal, Will Kane, who is torn between his sense of duty and love for his new bride and who must face a gang of killers alone, with even the Judge urging him to leave town : "I've been a judge many times in many towns. I hope to live to be a judge again. Why must you be so stupid?" 

'Some Landmarks of Twentieth Century Law' contained this vintage Treitel in relation to a case which involved an 'implied contract ' and related to an act of delivering goods to a bailee for a particular purpose, without transfer of ownership.

'So lawyers began to look for another, more promising exception to the general rule and the tone that they hit upon was bailment, or sub-bailment on terms. This was seen as a sort of magic wand that was to get rid of any difficulties caused by awkward rules of contract law. I am tempted to adapt Alexander Pope's famous epitaph on Newton : 
God said Let bailment be ! and all was light.'

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