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- Volume 2014, Issue si-1, 2014
Fundamina : A Journal of Legal History - Special issue 1, January 2014
Volumes & issues
Special issue 1, January 2014
"Soo 's lands ordonnantie vergeeffs niet is gemaeckt" : Rooms-Fries recht in een zaak over dierschade bij het Hof van FrieslandAuthor Hylkje De JongSource: Fundamina : A Journal of Legal History 2014, pp 196 –205 (2014)More Less
On 17 September 1707, in the court of first instance in Leeuwarden, farmer Jacob Jans was ordered to compensate farmer Pieter Pieters for the damage his bull caused by grazing on Pieters' land and by serving Pieters' cows. Jans, represented by lawyer Dr Henricus Popta, appealed to the Court of Friesland. Pieters was represented by Dr Sibrandus Mellama. The main question concerned the interpretation of the Landsordonnantie: is article 3, book 2, title 3 of the Landsordonnantie imperative law? Article 3 deals with damage caused by another's animal. The lawyers not only considered the relationship between the articles of the Landsordonnantie, but also the relationship between the Landsordonnantie and Roman law (Roman-Frisian law). Popta argued that article 3 should be interpreted in the "spirit of the law" and that for the purpose of claiming compensation for the damage caused by someone else's animal, the article contains a mandatory rule. According to Popta, Pieters did not comply with this rule and Jans could not be liable for the damage. He based his interpretation of the Landsordonnantie on Roman law, in particular the Codex, and on the Practicae Observationes of Andreas Gaill. Popta averred that Mellama's contention that article 3 could be invoked above Roman law as it was not drafted in a peremptory manner, was according to the "letter of the law" and against the "spirit of the law". The Court nevertheless refused the appeal.
Author J.H. DondorpSource: Fundamina : A Journal of Legal History 2014, pp 206 –215 (2014)More Less
To what extent do Dutch textbooks on Roman law reflect the controversy that has continued for almost a century over the interpretation of caput 3 of the lex Aquilia? In 1945, Van Oven discussed the relevant literature of his day, but since then Kaser's view has been favoured, even though, in 1976, Feenstra inclined towards Daube's alternative interpretation of quanti ea res erit and this led to the ongoing debate. The interpretation of caput 3 is clearly more controversial than students are usually led to believe.
Author Paul J. Du PlessisSource: Fundamina : A Journal of Legal History 2014, pp 216 –226 (2014)More Less
The relationship(s) between "law in books" and "law in action" is fast emerging as an important area of research in relation to "law and society in the Roman world". Contrary to popular perceptions, research in this area does not focus on the gap between "law in books" and "law in action" (for the existence of such a gap is almost inevitable), but on the reasons for the existence of the gap and the various ways in which individuals accessed justice under these circumstances. To that end, the focus of this article is a specific episode recounted in the New Testament, when Roman legal officials treated Christian missionaries seemingly unfairly and in contravention of Roman law. The purpose of this article is to demonstrate that accounts such as these need to be carefully analysed using elements of textual criticism in order to uncover perceptions of justice in the Roman world.
Author Jean-Philippe DunandSource: Fundamina : A Journal of Legal History 2014, pp 227 –239 (2014)More Less
A true State since 1848, Switzerland was a political creation of the end of the Middle Ages. Situated at the centre of Europe, the country has benefited from a multitude of cultural influences that have contributed to the evolution of the law. This contribution puts forward a synthesis of the experience of Roman private law in Switzerland. The text concentrates on four significant aspects: the reception of Roman law (thirteenth - seventeenth centuries); legal science (sixteenth - nineteenth centuries); the cantonal and federal codifications (nineteenth - twentieth centuries) and finally, Roman law today. The contribution concludes that it is not enough to simply speak of the experience of Roman law; rather it is necessary to speak of a variety of diverse experiences. Whether it be medieval Roman law, humanist Roman law, pandectist Roman law or codified Roman law, it is never the same Roman law.
Author Wolfgang ErnstSource: Fundamina : A Journal of Legal History 2014, pp 240 –257 (2014)More Less
Classicists, historians and public choice-theorists have all found Plin. Epist. 8,14 unsatisfactory. This paper looks into the psephological question, Pliny's core topic, from a legal perspective. In the case of Afranius Dexter's freedman, Pliny wished to let each senator declare himself just once, for the death penalty, relegation or acquittal. Whether this was a reasonable demand or the epitome of "the art of political manipulation" (Riker), depends on the ius senatorium of the time. Senators voiced their adherence to a specific sententia by way of discessio. Assembling a maior pars of the senators "present and voting" around the auctor of a specific sententia did not in itself constitute the consultum or decretum senatus, the passing of a resolution. It required a perfectio decreti senatus by the presiding magistrate. All discessiones were part of one and the same preliminary process establishing support for conflicting opinions. It was therefore permissible to try to establish support for different, even contradictory sententiae, before the consul formulated the sententia senatus (arg. 8,14,13/14). Seen in the light of the ius senatorium of his time, Pliny's position was far from manipulative. All his arguments, while sometimes far-fetched and not as pertinent as those of Roman lawyers, are comprehensible. Pliny also looks into an alternative procedure, namely formally declaring a winner after the first discessio (on relegation), with an immediate fixing of a corresponding senatus consultum (8,14,21); this, however, would extinguish all rivalling proposals (8,14,22). The senate did not subscribe to Pliny's point of view, neither in the case of Afranius Dexter's liberti nor, for all we know, subsequently.
Author Giuseppe FalconeSource: Fundamina : A Journal of Legal History 2014, pp 258 –274 (2014)More Less
The author examines the internal meaning of the formula "ut inter bonos bene agier oportet et sine fraudatione" of the actio fiduciae. In particular, citing third and second century B.C. sources, he argues (confirming the findings of his recent research) that the qualification "vir bonus" underlying the words "inter bonos" indicates an ethical-behavioural perspective, not social status. He suggests a reading that would give the adverb "bene" (generally considered pleonastic with regard to the terms "inter bonos") an autonomous role. Finally, he shows that the sources do not justify the assertion that the meaning of the criterion "ut inter bonos" has changed over time as a consequence of an alleged transformation of the notion of vir bonus.
Source: Fundamina : A Journal of Legal History 2014, pp 275 –286 (2014)More Less
The case of a slave whose throat was cut by a barber when a ball was thrown against his hand was widely discussed in antiquity. Ulp. D. 9.2.11 pr. describes the case and suggests three possible solutions, considering the last to be the best. Ulpian asserted that the barber was not liable, because the slave should have realised that it was not appropriate to be shaved close to a place where people were playing ball. However, the Basilics (B. 60.3.11) and especially the scholium of Hagiotheodorita argued that denying the barber's liability was not an equitable solution, because both the barber and the player who kicked the ball could have been liable. According to Hagiotheodorita, a better solution would be to hold at least the barber responsible. The joint liability of more than one person ("Quotenteilungsprinzip"), which several European legal systems adopt today in similar cases, was not permissible in Roman formulary procedure. However, Mela's solution in Ulp. D. 9.2.11 pr. seems to tend in that direction.
Author Thomas FinkenauerSource: Fundamina : A Journal of Legal History 2014, pp 287 –300 (2014)More Less
Much research has been done on the concept of aequitas, while the sense in which Roman jurists used the terms iustitia and iustus has until now received surprisingly little attention, even though these terms are definitely to be found in classical law. As regards their meaning, aequitas and iustitia can scarcely be distinguished at first glance. However, the Romans of the first century AD apparently did see a difference, for they struck separate coins for the goddess Iustitia on the one hand and the goddess Aequitas on the other; the latter invariably carried a pair of scales, while the former was never depicted in this way. Similarly, Roman jurists distinguished between iustitia in the broader sense of multilateral justice and aequitas in the restricted sense of a bilateral balancing of interests. Thus the concept of iustitia led to a consideration, not only of the relevant bilateral relationships but of all facts and all aspects of law and justice that affected the persons involved in the case. From this perspective, iustitia may be regarded as synonymous with aequitas totius rei.
Author Roberto FioriSource: Fundamina : A Journal of Legal History 2014, pp 301 –311 (2014)More Less
Boundary lines interacted with the auspices in different ways. On the one hand there were legal or natural boundaries such as streams or the fines of agri, which did not prevent the continuity of the auspicium, provided that some rituals were performed. Because of this continuity the augures did not create special categories of auspicia according to place. They only gave special names to the auspices that survived the crossing: the auspicium was called peremne when the boundary was a stream of water, and pertermine when it was a territorial border. On the other hand there was the pomerium, which had specific rules: its crossing prevented any continuity between the auspices taken domi and those taken militiae, and it is likely that because of this discontinuity the augures created the categories of the auspicia urbana and militaria.
Traces of the dualist interpretation of good faith in the ius commune until the end of the sixteenth centuryAuthor Andras FoldiSource: Fundamina : A Journal of Legal History 2014, pp 312 –321 (2014)More Less
The dualist interpretation of good faith (bona fides) clearly distinguishes subjective good faith (guter Glaube, goede trouw) from objective good faith (good faith and fair dealing, Treu und Glauben, redelijkheid en billijkheid). The Roman jurists never contrasted these aspects. Even in the Middle Ages and in the early modern age the majority of jurists interpreted good faith in a monist manner. The dualist interpretation of good faith first appeared - in the form of a certain "protodualism" which was different from the modern dualist interpretation outlined above - probably in a work by Franciscus Aretinus in the second half of the fifteenth century. Modern dualism appeared in the first half of the sixteenth century in works of Medina and Rebuffus. Donellus' dualism was similar to Franciscus' protodualism. More than three centuries passed before modern dualism gained wide currency after the publication of Wächter's monograph in 1871. That is probably because the majority of humanists and subsequently also a number of pandectists had an aversion to classifications of a scholastic type lacking some firm source. Such caution favoured the monist or pluralist interpretation of good faith.
Author Richard GamaufSource: Fundamina : A Journal of Legal History 2014, pp 322 –335 (2014)More Less
Gai. 3,212, IJ. 4,3,10 and D. 9,2,22,1 (Paul. 22 ed.) deal with the killing of a member of a group of slaves or animals falling under the first chapter of the lex Aquilia. In such cases, the damages exceeded the highest value of the dead slave or animal because the plaintiff was awarded compensation for the devaluation of the remaining slaves or animals as well. This article deals with the question whether the Roman jurists applied this solution only when the unit had one owner or also when the slaves or animals belonged to different owners, as in the societas-case dealt with by Celsus in D. 17,2,58 pr. (Ulp. 31 ed.). None of the relevant texts excludes such an interpretation a priori, since unitary ownership of the whole group of slaves or animals is never mentioned as a prerequisite. If the parts of such a unit belonged to different partners of a societas (and no co-ownership existed with regard to the societas' assets), the only way of holding the wrongdoer responsible for all the losses caused by his unlawful act was by granting the plaintiff compensation for the devaluation of the surviving slaves or animals owned by his partners. Without compensation for his partners' losses not even a successful plaintiff would have been able to obtain full indemnification since he had to share his gains from the proceedings regarding his slave or animal with his partners in the societas. Such an interpretation would have had practical benefits because the standard examples cited in the legal sources in such cases (twins, quadrigae, musicians, or actors) were all valuable luxury items and there is evidence that such ensembles sometimes belonged to more than one person.
Author Jean-Francois GerkensSource: Fundamina : A Journal of Legal History 2014, pp 336 –348 (2014)More Less
The universities of Ghent and Liège were both established in 1817, the year of the discovery of the Veronese palimpsest. For the University of Liège, it meant that an eminent German academic, Leopold August Warnkönig, would bring the knowledge of the German Historical School not only to Liège, but also to Belgium, as he also taught at the Universities of Louvain and Ghent. Warnkönig is probably somewhat less known in Belgium than François Laurent, who followed a similar academic journey: studying in Liège and becoming a professor in Ghent. This article tries to shed some light on the achievements of Warnkönig - a great German scholar who deserves much credit for his contribution to Belgium jurisprudence.
Source: Fundamina : A Journal of Legal History 2014, pp 349 –356 (2014)More Less
Writers on the history of international law, such as Grewe and Ziegler, maintain that in the Tractatus represaliarum by the fourteenth-century jurist Bartolus de Saxoferrato, there is an analogy between ius belli and reprisal. According to these scholars, Bartolus derived his theory of causa legitima for both war and reprisals solely from scholastic thought. This seems curious, since in the Corpus iuris civilis itself there are numerous texts dealing with reprisals and self-defence. This article therefore aims to establish whether Bartolus did indeed refer to any Roman legal text in his treatment of the causa legitima for reprisal.
Pfandrecht und Niessbrauch - Mehrfachbestellung und Konvaleszenz beschränkter dinglicher Rechte im römischen, im gemeinen und im geltenden RechtAuthor Peter GroschlerSource: Fundamina : A Journal of Legal History 2014, pp 357 –370 (2014)More Less
The convalescence of defective transfers of property interests is a long-discussed problem in Roman law. Through a comparative analysis of nineteenth-century ius commune and modern German civil-law principles, this article proposes novel insights into the classical Roman understanding of property interests. It also shows how related ius commune usufructuary concepts support a new perspective on convalescence. In doing so, this analysis revolves around a central question: If an in rem interest may be validly transferred only once, but has been transferred defectively, under what circumstances can the invalid transfer convalesce?
Author Verena HalbwachsSource: Fundamina : A Journal of Legal History 2014, pp 371 –382 (2014)More Less
There is a wide range of Roman-law texts on the duty of support. This obligation may result from family connections, from the relationship between patronus and freedman or even from ownership of a slave. A duty of maintenance may be imposed on somebody in a will, it may be linked to the allocation of a marriage portion, it may figure as a secondary obligation in a contract, etc. Accordingly, Roman jurists often comment on aspects of maintenance law, even outside the sedes materiae (D 25.3.5 De agnoscendis et alendis liberis vel parentibus vel patronis). They focus on a variety of legal topics, such as inheritance or succession, marriage, or negotiorum gestio. In the title De negotiis gestis in D 3.5.33 (Paulus 1 quaestionum) a case is reported which includes contradictory statements by the parties as well as exceptionally detailed statements by the jurists: Avia nepotis sui negotia gessit - a grandmother was managing her grandson's affairs; both she and the grandson having died, their heirs appeared as plaintiff and defendant. The claims related to the grandmother's maintenance of her grandson, so that defendants and plaintiffs were opponents in an actio negotiorum gestorum (directa). Earlier decisions quoted in this trial and the arguments advanced during the proceedings highlight the juxtaposition between enforceable obligations and the role of conscience where there is a duty of support. In particular, the judicial relevance of pietas will be examined in this contribution.
Roman law and the development of Hungarian private law before the promulgation of the Civil Code of 1959Author Gabor HamzaSource: Fundamina : A Journal of Legal History 2014, pp 383 –393 (2014)More Less
Although Hungary had close relations with the Byzantine Empire, the fact that King Stephen I (St. Stephen) (1000-1038) and his country adopted western Christianity made the penetration of Byzantine (Roman) law into Hungary impossible. Roman law had a direct influence in Hungary only during the age of the Glossators. The impact of Roman law was much less marked in the royal statutes and decrees, the ius scriptum. King Matthias made an attempt to codify Hungarian law by issuing Act VI of 1486 (Decretum Maius). The law-book of Chief Justice Stephanus Werböczy (c. 1458-1541) systematising feudal customs in Latin, the language of administration of the kingdom of Hungary, was entitled Tripartitum opus iuris consuetudinarii inclyti regni Hungariae. It was never promulgated, so never formally became a source of law but nevertheless it became authoritative. Containing feudal private law, and usually applying Roman law only formally, it became 'the Bible of the nobility' for the following three centuries. The first attempt to codify private law in Hungary was made in the last decade of the eighteenth century. The Diet of l790-1791 set up a legal committee to prepare the necessary reforms. The idea of a comprehensive Hungarian civil code gained ground from 1895 onwards. One of its most consistent advocates was Gusztáv Szászy-Schwarz, who wished Roman law to form the basis of a codification of civil law in Hungary. The Draft Civil Code of 1928, considered by the courts as ratio scripta (until the Civil Code of 1959 came into operation) reflected the strong impact of the Swiss Zivilgesetzbuch of 1907 and Obligationenrecht of 1881.
Author L. HawthorneSource: Fundamina : A Journal of Legal History 2014, pp 394 –402 (2014)More Less
In C 8 26(27) 1 Emperor Gordianus decreed that the pledgee's retention right over the pledged thing applied to both the secured and unsecured debts of the pledgor. This retention right was enforced by the exceptio doli. If the pledgor should claim for return of the pledge after payment of the secured debt, but other unsecured debts were outstanding, the pledgee could raise the exceptio doli until the latter debts had been paid. Voet shows that this rule was received in Roman-Dutch law. It was also adopted in the law of the Cape Colony and in the Transvaal. However, in the Bank of Lisbon case, no mention was made of the Codex text, Voet, the Cape law nor Smith v Farrelly's Trustee; and it is submitted that abrogation of the exceptio doli effectively abolished the pledgee's retention right.
Author Viola HeutgerSource: Fundamina : A Journal of Legal History 2014, pp 403 –411 (2014)More Less
Teaching law requires books. What were the style, form and didactic concept of legal textbooks that were used at the early Dutch universities? From the seventeenth century onwards, textbooks on civil law contained coloured highlights or were issued in a question-and-answer format. They also provided regional solutions and comparative annotations. These textbooks were very popular in their time; however, they were hardly ever cited in scientific works, and nowadays are virtually forgotten. After giving a brief sketch of the university landscape in Holland in the sixteenth to eighteenth centuries, I shall discuss some of these early textbooks.
Author Margaret HewettSource: Fundamina : A Journal of Legal History 2014, pp 412 –415 (2014)More Less
The above article briefly outlines the problems associated with GOOGLE translations of Latin to English and conversely English to Latin. The need for some such assistance has been created by the unfortunate fact that today many lawyers and jurists can no longer read legal texts written when Latin was the international language of scholars. South Africa, together with other countries having Roman-Dutch legal systems, has been adversely affected. The immediate response was for those local scholars who were well versed in Latin and law to complete competent translations of certain Old Authorities. The need for further Latin translation has been questioned and not infrequently dismissed as irrelevant in the modern legal world. Should a required text not be available, the "Translate" function of the GOOGLE search engine is one of the only alternatives. Here I have tried to illustrate the fallacy of this present solution by choosing a few lines from Justinian's Institutes, and having it translated into English by the GOOGLE "Translate" tool. The result is a linguist's nightmare. Conversely, translating competent English versions of Institutes 2 1 12 into Latin produces a mangled "Gobbledy GOOGLE," completely ungrammatical and incomprehensible! Where do we go from here?
Author Eva JakabSource: Fundamina : A Journal of Legal History 2014, pp 416 –426 (2014)More Less
In his work De beneficiis, Seneca deals with the topic of generosity from several points of view, including the legal one. This paper treats a fragment of Seneca, benef. 3,15,1-4, which reports "strange" notarial practices in Italy. The philosopher wishes the central role of fides in the Roman "law in action" to be preserved - but times changed and written documents came to be preferred in every-day business transactions. According to Seneca, there were striking tensions between stipulation and consensual contracts, pacta and documentary texts. Because sealing was usual in Roman tabulae, and was a common proof in legal procedure, sealed tablets seem to have been generally trusted; there was more trust in sealing rings than in men's consciences. The central role of written tablets in legal matters soon gave rise to forgery, too. Tacitus reports a famous testamentary forgery in Roman high society in 61 AD. It seems very likely that it was because of this case that the Senatus Consultum Neronianum was introduced in 62 AD. The Senate ordered that legal documents be prepared and sealed in a particular way (Suet. Nero 17): "It was then against forgers that no tablets should be sealed unless they were bored through and a string passed three times through the holes ... ." In this paper I look at possible connections between Seneca's complaints, the SC Neronianum and documentary practice as recorded in the archive of the Sulpicii.