oa Fundamina : A Journal of Legal History - The

Volume 16, Issue 1
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



This essay focuses on something called the . This is not well-known in South African law. In fact, it features only twice in the law reports : first, almost a century ago, in a judgment of , and then, more recently, in a judgment of . Something this rare may either be so precious that it deserves to be saved from obscurity, or it may be so insignificant that it deserves to be consigned to the past. The challenge is then to determine whether there is indeed any need for recognising such a in modern South African law. In furtherance of a methodology favoured by the , the perspective adopted here will be historical, taking Roman sources as the point of departure, and then enquiring whether these sources provide insights that are useful for modern purposes.

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