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- Fundamina : A Journal of Legal History
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- Volume 15, Issue 1, 2009
Fundamina : A Journal of Legal History - Volume 15, Issue 1, 2009
Volumes & issues
Volume 15, Issue 1, 2009
The need to harmonise trade-related laws within countries of the African Union : an introduction to the problems posed by legal divergenceAuthor Polina DlagnekovaSource: Fundamina : A Journal of Legal History 15, pp 1 –37 (2009)More Less
It is widely accepted that inter-state relationships have entered an era of globalisation. The economic theory of convergence explains that it is this phenomenon which has spearheaded, amongst others, the development of international rules in the field of trade, finance and taxation.
Author David FaladaSource: Fundamina : A Journal of Legal History 15, pp 38 –68 (2009)More Less
This article endeavours to shed some light on the history of codification of private law in the Czech Republic. It should be observed that most of the matters discussed here would be suitable as topics for specialised studies. This article, therefore, tries to provide a general overview of the subject, quoting specifically those provisions that characterise general attitudes towards private or civil law - as expressed in the discussed codes - while leaving certain details aside.
The role of the vice-admiralty court at St Helena in the abolition of the Transatlantic slave trade : a preliminary investigation (part 1)Author J.P. Van NiekerkSource: Fundamina : A Journal of Legal History 15, pp 69 –111 (2009)More Less
St Helena is known, foremost, as a place of incarceration. However, the island has also been a place of liberation. This contribution seeks to cast some light on the role played by the Vice-Admiralty Court of St Helena during the nineteenth century in the liberation of African slaves taken from captured slave ships and brought to the island. The Court played a significant part despite, or maybe because of, the island's sheer isolation and extreme remoteness.
Author Gabor HamzaSource: Fundamina : A Journal of Legal History 15, pp 112 –119 (2009)More Less
The oeuvre of Elemér Balogh, who played an essential role in founding the Académie Internationale de Droit Comparé, is nowadays almost unknown to lawyers. In spite of the fact that the greater part of his publications shows Professor Balogh (who had to emigrate from his homeland, Hungary) to have been a scholar of Roman law, very little is known about his scientific career dealing with Roman law and other ancient legal systems. In the following pages the most important stages of his life and his scientific work dealing with Roman and comparative law are presented. The mere fact that he was invited to attend the fourteenth centenary celebration of the promulgation of Justinian's Digest - where he delivered a lecture entitled "La procédure civile sous Justinien" - is evidence of his reputation as a Romanist.
Author John HiltonSource: Fundamina : A Journal of Legal History 15, pp 120 –138 (2009)More Less
Roman law had a strong influence on the legal system that evolved in the Netherlands in the sixteenth and seventeenth centuries. The works of Grotius, Vinnius, Groenewegen van der Made, Leeuwen, Voet, Huber, and others, brought about a flexible and comprehensive system of law that was widely respected in Europe at the time. Roman law formed the principal part of the generally received ius commune and for that reason was thought to merit particular respect in disputed areas, although its use in the Netherlands was complicated by the fact that the provinces were sovereign states and therefore differed in the degree to which they made use of Roman law. Visagie describes the application of Roman law in the Netherlands as complementary to existing bodies of Dutch law and notes that Roman law fell away when it conflicted with the laws of the United Provinces. However, where Roman law was received it was used as a starting point of discussion and it was preferred to the laws of other nations when Dutch law was deficient, on account of the justice and rationality of the Roman system. The influence of Roman law was especially strong because Dutch law was often insufficient and had great gaps. Visagie identifies particular gaps in the law of contract, the laws governing inheritance and commercial law. In these areas especially, Roman law was by no means considered subordinate to Dutch law. Roman law was consequently also applied in the Dutch overseas settlements. In terms of the charter (octrooij) awarded to the Vereenigde Oostindische Compagnie (VOC) by the States General of the Republic of the United Netherlands, the company was empowered to administer justice in all of its territories in the East in terms of the laws practised in the province of Holland, ordinances (plakkaten) passed in Batavia and at the Cape, and Roman law.
Author F.A. MoutonSource: Fundamina : A Journal of Legal History 15, pp 139 –154 (2009)More Less
On 18 April 1901, in the midst of the South African War, Francois Stephanus Malan (1871-1941), a member of the Cape parliament and editor of Ons Land newspaper, was convicted in the Cape Supreme Court of the criminal libel of General John French and imprisoned for twelve months. The prosecutor, James Rose Innes (1855-1942), was a fellow member of parliament and the Attorney-General in the cabinet of Premier Sir Gordon Sprigg. He was one of the Cape Colony's most respected politicians and would become one of South Africa's greatest judges. That the trial left a lasting wound on Malan is clear from his published memoirs, and the authorised biography written by Bettie Cloete, his daughter. Both these publications argue that his treatment in court was unfair and the prison sentence unreasonable. Together father and daughter created a perception that Rose Innes was a pawn in a politically motivated abuse of the Colony's legal system and that he was used to silence a troublesome critic of British imperial policy in South Africa and the methods used by the British army. By analysing the reasons for Malan's prosecution, as well as by examining the court proceedings, this article will argue that Malan's enduring anger and hurt, combined with the passage of time, distorted his memory of events, and that Rose Innes was unfairly accused of being part of a political trial to neutralise a critic of the British Empire.
Author Rena Van den BerghSource: Fundamina : A Journal of Legal History 15, pp 155 –167 (2009)More Less
In ancient Rome personal security was the most common form of security. This may be attributed to the large number of relationships based on fidelity. Most substantial transactions on credit were accompanied by such security. Fideiussio (suretyship or a fidelity bond) was concluded by means of stipulatio. In terms of this verbal contract the surety or guarantor pledged himself to fulfil the debtor's agreement towards the creditor if the debtor could not honour it.
Author Adelyn L.M. WilsonSource: Fundamina : A Journal of Legal History 15, pp 168 –180 (2009)More Less
The seventeenth century was a particularly important period in terms of the development of Scots law. In the second half of that century, Scotland's first two institutional works were published. Viscount Stair's Institutions of the Law of Scotland, probably written in 1659, was published in 1681, and Sir George Mackenzie's Institutions was published in 1684. Although only three years separated their publication, the two treatises did not always agree on points of substantive law. Indeed, their conclusions on the law of risk in sale were contradictory and differed again from the view which had previously been dominant. The question of which party to a contract of sale bears the risk of loss, theft or damage after a sale is completed but before delivery can be affected is one which is important to the practice of any legal system. In Roman law the risk before delivery lay with the buyer.