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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
Author Corjo JansenSource: Fundamina : A Journal of Legal History 2014, pp 427 –436 (2014)More Less
This article describes the participation of laymen in Dutch justice from 1 March 1811 until 2011. History shows that discussion about the participation of laymen in the administration of justice has always related to the level of public trust in the judiciary and state-appointed judges at a certain time. Based on this, three peaks can be discerned in the focus on the administration of justice by laymen: the first decades of the nineteenth century, the first decades of the twentieth century and the first decade of the twenty-first century.
Source: Fundamina : A Journal of Legal History 2014, pp 437 –445 (2014)More Less
This article provides an historical overview of Ulpian's praecepta iuris and focuses on their roots in Greek philosophy and their role in Roman law. It alludes briefly to the meaning of the praecepta in later legal literature such as the Glossa ordinaria and the works of Kant. It reflects on the role of the praecepta in Roman-Dutch law, the common law of South Africa. In Part 2 of this contribution, we explore the influence of the praecepta iuris in present-day South African law, including African customary law.
Ulpian's praecepta iuris and their role in South African law - Part 2: modern-day South African practiceSource: Fundamina : A Journal of Legal History 2014, pp 446 –455 (2014)More Less
This article investigates the role of Ulpian's praecepta iuris in modern-day South African law against the background of their historical development, as expounded in Part 1 of this contribution. The South African High Court has perceived a link between the African notion of ubuntu and the praecepta iuris. In view of the prevailing legal pluralism, the relevance of these praecepta for African customary law is explored as well as their intersection with the fundamental postulates of African customary law and ubuntu.
Author Georg KlingenbergSource: Fundamina : A Journal of Legal History 2014, pp 456 –466 (2014)More Less
When a relative is injured or offended by a wrongdoer, Roman law distinguishes between two types of iniuria: the harm done to the concerned person herself ("direct iniuria") and the injury caused indirectly to other persons by the same incident ("indirect iniuria"). An example is given in Gai 3.221 and I. 4.4.2: If a married filia familias is injured, the actio iniuriarum against the wrongdoer can be brought not only filiae nomine, but also patris and mariti nomine. As Ulpian (D. 220.127.116.11) points out, the relevant criteria in respect of indirect iniuria are potestas and affectus. The actions based on indirect iniuria can be instituted together with the action based on direct iniuria (Neraz cited by Ulpian in D. 18.104.22.168); the aestimatio in every action is independent of the aestimatio in the other actions (Paul citing Pomponius in D. 22.214.171.124; Ulpian D. 126.96.36.199). According to Neraz (cited by Ulpian D. 188.8.131.52) it does not matter whether or not the wrongdoer knows the potestas or affectus of another person. Paul, on the other hand, insists that knowledge of these is necessary, regardless of the person involved in the case: the wrongdoer is liable if he knows the legal status (as filius familias or as uxor) of the person who is directly concerned (D. 184.108.40.206-5). Finally - as explained by Paul (D. 47.10.26) and Ulpian (D. 220.127.116.11) - the persons who are indirectly concerned can sue for their own iniuria even when there is no action in favour of the person who is directly concerned (e.g. a son or a slave who consents to an abusive treatment: volenti non fit iniuria).
Author Rolf KnutelSource: Fundamina : A Journal of Legal History 2014, pp 467 –477 (2014)More Less
As becomes apparent if one studies pacta dotalia, the principle libera matrimonia esse antiquitus placuit did not apply quite as unrestrictedly as commonly assumed. These pacta could involve discrimination against women in the sense that a subsequent divorce would threaten their subsistence.
Author Peter KopSource: Fundamina : A Journal of Legal History 2014, pp 478 –488 (2014)More Less
Legal rules for the interpretation of contracts have existed in the Netherlands since the codification of their civil law at the beginning of the nineteenth century. Although these rules also existed in earlier legal systems, such as Roman law, their methodological notification as part of a whole was rather new. Initial Dutch attempts to regulate the interpretation of contracts in their own particular way were not successful. Naturally they were familiar with the Traité des obligations of Pothier and subsequently in essence copied the French Code civil in various codifications. However, in the Dutch Code of 1838 there was one unique feature: it specified that when the wording of a contract was clear, there was no basis for interpretation. Dutch lawyers are of the erroneous opinion that this was the striking difference with the French code. Nevertheless, the new Dutch Civil Code does not contain legal rules for the interpretation of contracts - it has been said that the earlier provisions were too obvious and too superficial.
Author Christoph KrampeSource: Fundamina : A Journal of Legal History 2014, pp 489 –499 (2014)More Less
Book 41, Title 1 of the Digest of Justinian, is entitled "The Acquisition of Ownership of Things". In it (D. 41,1,36) Julian discusses the problem of acquisition (Digest, book 13) when there is agreement on the thing delivered but a dispute over the grounds for delivery. The answer of the classical jurist is "I see no reason why the delivery should not be effective". The modern German theory of effective delivery - even where there is such a misunderstanding - as prepared by Savigny in the nineteenth century, is based on Julian's text. The very peculiar "why not" phrase non animadverto cur inefficax sit traditio could be explained as an expert reply (responsum) to a question in a practical case. In particular, the final example given of misunderstanding - for when I give you coined money and you receive it as a loan - shows e contrario what the real dispute between the parties was, namely an action (condictio) based on a loan where one party denies that it is a loan and claims it is a gift. Julian is cited and criticised by Ulpian in his Disputationes (book 7), referring to the same case of gift/loan (D. 12,1,18: I give you money as a gift but you receive it as a loan for consumption). The extract from Ulpian records an exchange of views in the light of threatened litigation. While Julian denies that there was a gift, but does not express his opinion on a loan, Ulpian also denies that there was a loan and proposes an exceptio doli after consumption.
Author Berthold KupischSource: Fundamina : A Journal of Legal History 2014, pp 500 –511 (2014)More Less
Frequently authors like to rely on Papinian's text (§ 5) in order to establish the thesis that in substitutio pupillaris, if the inheritance of the pupillus does not suffice to fulfil the legacies bequeathed under the second will, the substitutus will have to pay out of his own funds, de suo, in excess of his share, that is to say that the substitute is not even going to have an heir's protection as prescribed by the lex Falcidia (Falcidian quarter). The article sets out to demonstrate that this thesis is unfounded. The lex Falcidia guarantees the protection of the substitutus. The Papinian reflections (§§ 5, 6) merely discuss the fact that in certain cases the protection provided by the Falcidian quarter may diverge from the common formula according to which the substitutus is treated as heir to the father of the pupillus. The expression de suo (§ 5) refers to the inheritance the substitutus receives from the pupillus.