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- Volume 2014, Issue si-2, 2014
Fundamina : A Journal of Legal History - Special issue 2, January 2014
Volumes & issues
Special issue 2, January 2014
Author Luigi LabrunaSource: Fundamina : A Journal of Legal History 2014, pp 513 –517 (2014)More Less
A Laurens Winkel - indagatore felice della scienza giuridica antica, particolarmente attento anche ai profi li individuali dei giuristi non solo romani - con il quale in questi anni ho avuto il privilegio grande di lavorare insieme nella Giuria internazionale del Premio Boulvert, apprezzandone l'equilibrio, la sapienza, la grande umanità, dedico con profonda amicizia questo che si inserisce in una serie di "profili" di romanisti del Novecento che da tempo vado studiando, alcuni dei quali sono stati già editi in vari luoghi e che spero di pubblicare un giorno, riveduti, tutti insieme per contribuire alla ricostruzione di una storia minore degli studii e degli studiosi del diritto romano nella seconda metà del Novecento in Italia.
This paper draws the academic and scientific portrait of the Neapolitan Romanist Lucio Bove. It is part of a series of profiles of nineteenth-century Roman-law scholars on which the author has been working with the aim to contribute to a minor history of the studies and the scholars of Roman law during the second half of the twentieth century in Italy. The study is dedicated with deep friendship to Laurens Winkel, who has always paid special attention to the individual profiles of ancient, modern and contemporary jurists, and with whom the author has had the great privilege of working in these recent years in the International Jury of the Boulvert Prize, appreciating his poise, knowledge, and great humanity.
Author Francesca LambertiSource: Fundamina : A Journal of Legal History 2014, pp 518 –526 (2014)More Less
The article examines the fragment D. 23.1.14 of the Digest with reference to a recent debate on the age of entering into engagements. The author considers the arguments that the fragment is not authentic, but rejects them. D. 23.1.14 contains original statements by the Roman jurist Modestinus, which were summarised and epitomised by scholars in late antiquity. It was debated whether an impubes, in order to be allowed to enter into an engagement, should understand the nature of an engagement, and whether an impubes who had reached the age of seven might do so.
Author Aude Laquerriere-LacroixSource: Fundamina : A Journal of Legal History 2014, pp 527 –535 (2014)More Less
This study aims to revisit the Constantinian texts concerning rescripts ad consultationem emissa. Do these rescripts have the value of precedents, applicable by analogy to similar cases, as they did during the classical period? Does the prince's reply merely constitute an advisory opinion that will leave the judge in control of the case, or does it constitute the final judgment? In June 318 Constantine seems to have taken a definite decision - the judge loses control over the case as soon as he refers it to the prince; the prince, supreme authority and sole interpreter of the law, is then the only one to pass final judgment.
Author Anne Lefebvre-TeillardSource: Fundamina : A Journal of Legal History 2014, pp 536 –545 (2014)More Less
This contribution brings an important manuscript of the School of Orléans to the attention of legal historians. The text transcribed deals with civil liability. It is the repetitio that Pierre de Belleperche (ob. 1308), the last great jurist of this School, gave on the "law" Quod Nerva (D. 16,3,32). It specifically sheds light on the famous repetitio that Bartolus in turn would give on the same "law".
Author Jose L. Linares PinedaSource: Fundamina : A Journal of Legal History 2014, pp 546 –553 (2014)More Less
Recent reforms have dramatically narrowed the basis of comparison between modern Catalan family law and the civilian tradition, strongly represented in the Catalan Compilation of 1960. This circumstance causes the author to reflect on the current value and purpose of our studies.
Author Francesco LucreziSource: Fundamina : A Journal of Legal History 2014, pp 554 –570 (2014)More Less
It may be questioned whether in Hebrew law there is any "Grundnorm" or fundamental statement that overrides other laws. It is well known that, in Hebrew law, commandments come only from God, and that men and human institutions cannot create law, but can only comprehend and interpret divine will. If divine commandments are expressed only in the biblical halachah (i.e. the legal part of the Torah, consisting of the 613 mitzvòt), it is matter of debate whether there are any rules in the halachah that are more important than others, capable of limiting the application of other mitzvòt. Such a question has, for example, been asked about the Decalogue, but it has been denied emphatically that the Ten Commandments (Asèret Hadibròt) are above other laws. However, it is also true that only with regard to some commandments (ie, the prohibition of idolatry, blasphemy, incest and adultery) and in order to avoid transgression a Jew is obliged to sacrifice his own life. Another question is whether the halachah limits the interpretation of the narrative part of the Torah, namely the so-called haggadah. Freedom of human interpretation must be maintained, and the Torah must be considered as a whole, in which no part limits another. If there is no limit to the law, can there be a limit to human interpretation? On the one hand, it is free, but on the other this freedom cannot extend to a violation of the meaning of the law. Who may decide the limits of human interpretation? May a consolidated rabbinical tradition be considered as a limit? And do Mishnah and Talmud restrict the interpretation of the Torah? These are questions to which there is more than one answer.
Author Blanche MagdelainSource: Fundamina : A Journal of Legal History 2014, pp 571 –585 (2014)More Less
According to literary sources, Caius Flaminius was supposed to act as suasor legis in two statutes: the Claudian plebiscite and the lex Metilia. During the voting process, the Roman suasor legis used to intervene pro and in contione before the Roman people in order to support a bill. His intervention, based on eloquence and on auctoritas, was often a determining factor. The motives for the suggested steps are worthy of attention. Did Caius Flaminius indeed intervene here as a censor?
Author Arrigo D. ManfrediniSource: Fundamina : A Journal of Legal History 2014, pp 586 –596 (2014)More Less
Recent investigations dwelled on gestures of deference owed to magistrates (such as giving way, dismounting from a horse, removing one's hat, standing up; principal sources: Serv. Aen. 11, 500; Sen. epist. 64, 10) or other citizens (such as salutatio matutina, table seats etc.), with the difference that the former are juridically obligatory, the latter are only so socially. On the other hand, very little attention has been granted to an old article giving way to matronae over men, on which Plut. Rom. 20,3 e Val. Max. 5,2,1 (feminis semita viri cederent). At a later age, a few references to the ancient "positioning" of matronae are found in the Digest, particularly in an excerpt by Ulpian, in D. 1,9,1, best known for the famous sentence maior dignitas est in sexu virili. According to the illuminating interpretation of Mario Salomonio degli Alberteschi, Ulpian's quaestio should be read in terms of institutional dignities, instead of pre-emption rights in trials of adjudication. According to the scholar, men would "stay ahead" of women (virum praeferendum) even if they were inferior to them. Stressing the spatial meaning of the verb praeferre over that of "to prefer", we suggest that already in Ulpian's age, high-ranking women had lost their place ahead of men (perhaps even ahead of magistrates), which they had in the "matronal age of honor". Even in the case of women with consular dignity, they would be preceded not only by consulares but also by praefectorii. For instance, this happened in theatre, as it appears in the Ulpianean text's version of B. 6,1,1.
Author Dario MantovaniSource: Fundamina : A Journal of Legal History 2014, pp 597 –605 (2014)More Less
The declamatio minor 264 ascribed to Quintilian contains a paraphrase of the Twelve Tables (V, 3) that has not been recognised so far. The way in which the declaimer ingeniously twists the wording of the lex while keeping its legal content provides precise, useful insights into the relationship between Roman law and declamations: a literary relationship which does not consist in direct appropriation nor indifference or otherness, but in a close and well-informed emulation.
Author Carla Masi DoriaSource: Fundamina : A Journal of Legal History 2014, pp 606 –612 (2014)More Less
Commencing with the interpretation of a Papinian quaestio (now in D. 28.2.23 pr.) relating to a strange case of disinheritance, and then considering its reception in Ulpian D. 18.104.22.168 (in terms of the prevalence of natural law), this contribution focuses on a somewhat hidden quote by Ulpius Marcellus, located in a text originally by Papinian (D. 22.214.171.124). The reference appears concealed, because the relevant narrative is by Ulpian, quoting Papinian. The recovery of this reference helps us to understand the relationship between Papinian and Marcellus, poorly attested in the sources (there is only one other direct citation of Marcellus by Papinian, in D. 10.2.22.5). The paper also tries to explain the lacuna in the discussion of book twelve of Papinian's Quaestiones according to the proposal in Otto Lenel's Palingenesia iuris civilis.
Author Franz-Stefan MeisselSource: Fundamina : A Journal of Legal History 2014, pp 613 –627 (2014)More Less
Chapter 84 of the lex Irnitana excludes a number of iudicia from municipal jurisdiction. In the list of excluded actions we find the following in lines 9 and 10: neque pro socio aut fiduciae aut mandati quod dolo malo factum esse dicatur. In an article in the Savigny-Zeitschrift (2007) Dieter Nörr argues that this is a proof of liability for culpa in the three relevant contracts (societas, fiducia and mandatum). According to Nörr, in respect of none of those contracts was a claimant excluded from initiating an action before the municipal court, if he declared in iure that his claim was based not on dolus, but merely on culpa. This assumption implies that in all three contracts liability for culpa already existed in the first century AD. The present contribution approaches the question from the perspective of the classical law of societas. Whereas the traditional view of twentieth-century scholars was that liability was limited to dolus, a different picture has been painted recently. Even if there are traces of liability for culpa in at least some hypotheses (for example in the case of a partner who has pledged to contribute a specific skill to the partnership), the matter seems to have been still unresolved in the early second century AD (cf. D. 17,2,52,2). It therefore seems unlikely that the lex Irnitana (promulgated in the last decade of the first century AD) already presupposed liability for culpa in general. More importantly, the wording of the lex Irnitana is rather puzzling. It is not clear whether the phrase quod dolo malo factum esse dicatur refers only to mandate or to societas and fiducia too. Even if the latter is assumed, various possible translations are possible. Nörr reads it as a restrictive clause (in the sense of "if it is said that something was done with dolo malo"). Yet it could also be understood as a mere explanatory remark ("because it is said that something was done with dolus malus"), which means it could definitely not be understood as a proof of liability for culpa. This paper explores the new hypothesis that quod dolo malo factum esse dicatur could be a hint of an - until now not clearly identified - formula in factum concepta, which included a reference to a factum dolo malo. The conclusion drawn is that continuing uncertainties do not allow us to view the lex Irnitana as a proof of a generally accepted liability for culpa in the contracts of societas, fiducia and mandate during the first century AD.
Author Rosa MentxakaSource: Fundamina : A Journal of Legal History 2014, pp 628 –637 (2014)More Less
Tradicionalmente se ha relacionado el avance en el movimiento abolicionista de la pena de muerte con lo que se ha venido llamando "el derecho penal humanitario" y ha sido considerado una conquista de las sociedades democráticas contemporáneas. Sin embargo, la paralización de la ejecución de la condena capital de la mujer embarazada hunde sus raíces en el derecho romano. En esta exposición pretendo reflexionar tanto sobre las razones de dicha excepción como sobre la evolución histórica de la regulación; los motivos humanitarios, determinantes en la actualidad, no fueron los que probablemente condicionaron las disposiciones jurídicas en Roma, cuya sociedad se mostró amante de espectáculos sangrientos y crueles; por ello, resulta difícil pensar en la humanitas como fundamento de la excepción a la ejecución de la condena.
Progress in the movement to abolish the death penalty has been linked with what has been called "humanitarian law" and has been considered a victory for contemporary democratic societies. However, the suspension of the execution of the capital sentence for pregnant women has its roots in Roman law. In this paper, I reflect on the reasons for such an exception and its historical evolution in the Roman Empire. Modern humanitarian considerations were probably not known in Roman law.
Author Antonino MetroSource: Fundamina : A Journal of Legal History 2014, pp 638 –647 (2014)More Less
Whether a trial came to an end because of inactivity has been debated in Roman law in various ways at different times. The question was also often confused with the extinction of actions because of time constraints. The author firstly considers a number of norms in the XII Tables, which, at a very early period, reflected an interest in the rapid conclusion of trials. Having expressed uncertainty about the situation during the following centuries, he then examines the relevant Augustan legislation, with its distinction between iudicia legitima and imperio continentia, which envisages different terms for the mors litis. In this context, the author refers to various hypotheses propounded in literature on the effects of this reform, with reference to the possibility of re-instituting a suit after the expiry of the permitted period, but not indicating a definite time limit for trials. Under Theodosius II (CTh. 4.14.1) a thirty-year statute of prescription was imposed, which in some cases also determined the maximum duration of suits. The link between limitation and preemption was increased by a Novel of Valentinian III (35.13) who linked the thirty-year period to the duration of suits, eliminating the cases of interruption and suspension envisaged by Theodosius. Finally, Justinian's famous constitution "Properandum" (C. 3.1.13) set the maximum length of trials at three years, but allowed the rule to be avoided in some cases where it was possible to re-institute a suit within the general limits of prescription. The author reaches the conclusion that Roman law never knew the general principle of preemption as the term is understood in modern usage.
Een erfrechtelijk geschil binnen de familie Haller von Hallerstein (1595-1603) : van eenheid naar verscheidenheid binnen het West-Europese rechtSource: Fundamina : A Journal of Legal History 2014, pp 648 –657 (2014)More Less
In 1595, in a contentious procedure, in which the executors mentioned below were the defendants, papal judges decided that the monastic vows taken by Loijsa Haller von Hallerstein, a Cistercian nun, were null and void. Accordingly, she was capable of entering into matrimony and taking the half to which she was entitled of the goods of her deceased parents. These goods were located in Brussels and Nuremberg, the Hallers' home. Loijsa applied to the Council of Brabant in Brussels to compel the testamentary executors in the estate of her deceased brother Carl, who were the same executors who had administered the parents' estates, to cooperate in complying with the order. The Council requested legal assistance from the Municipal Council of Nuremberg, which had jurisdiction in the matter, but the Council neglected to carry out the order. It allowed the executors to summon Loijsa under the lex diffamari and, subsequently, to appeal to the Imperial Chamber Court against the Court's sentence. Loijsa - by now married to Alberto Struzzi, counselor of Archdukes Albert and Isabella - successfully complained about this injustice to Emperor Rudolph II. As from August 1598, imperial warrants were issued against the Council of Nuremberg, in order to make it take action, but without result. Only when Loijsa and Alberto challenged another delaying measure from Nuremberg before the Aulic Council, was there progress. The Nuremberg opponents reached an agreement with Loijsa, which the Emperor approved in March 1603. Consequently the former nun from Brussels eventually obtained her money, although the dispute with her relatives was never resolved in a secular court. The outcome corresponded to the traditions of the Council of Brabant. For centuries, the Council tried to settle lawsuits between residents of the duchy of Brabant and non-Brabantine 'foreigners' completely within the borders of the duchy. The judges pursued a policy of circumventing the application of the rule actor sequitur forum rei and, until the dissolution of the Holy Roman Empire, the German Emperors tolerated this breach of the rights of neighbouring principalities and imperial cities inside the Empire.
Author E. OsabaSource: Fundamina : A Journal of Legal History 2014, pp 658 –666 (2014)More Less
The Liber iudiciorum or lex Visigothorum, a compilation of laws enacted by different monarchs, issued by Receswinth in 654, is part of the most Romanised group of Germanic laws of the period. The influence of the Roman law that preceded it may be seen in many of its rules, including those recording the name of the monarch who enacted them and other, older rules which did not. This paper analyses LV 3, 4,17 (antiqua), which was intended to stamp out prostitution, and which remained in force throughout the period of the Visigothic monarchy (506-711). This rule, with a clear structure of parallel legal dispositions, focuses on women who engage in prostitution, be they free women or slaves. They are the main recipients of the harsh penalties introduced by the law. There is also a section on punishment of the fathers of free women and the owners of slave women who have consented to or profited from the prostitution of their daughters or slaves. The last section deals with the punishment of judges who, through laxness or corruption, hamper the suppression of the offence. It is significant that this legal text closely echoes measures taken against pandering (lenocinium) in the late Roman Empire. However, unlike the earlier imperial provisions, the sanctions imposed in Visigoth law were chiefly involved the harsh punishment of women caught in the act of prostitution. As also seen in other sources from the same period, there is a significant shift towards strict prohibition, in which the punishments of prostitution and the women who engage in it are inflexible.
Author Martin PennitzSource: Fundamina : A Journal of Legal History 2014, pp 667 –676 (2014)More Less
In Afr. D. 126.96.36.199 the expression vasa utenda periculo communi dedi means that the parties to commodatum have added a pact to the contract. The borrowers are then not only liable for dolus, culpa and custodia (safe-keeping), but bear the risk of vis maior too. Because of this contractual provision, African assumes that the legal situation of the borrowers is similar to that of co-owners of a res communis. This is why the borrowers are liable pro parte, when the borrowed objects have been stolen by the lender's slave. On the other hand (and according to Cels.-Ulp. D. 188.8.131.52), each of the borrowers is allowed to sue the dominus by an actio furti noxalis. If the lender decides to escape his liability by surrendering the offender, the slave has to be shared among the socii; for this reason the other borrowers will probably be entitled to an actio communi dividundo or a similar actio in factum against the plaintiff.
Author Leo PeppeSource: Fundamina : A Journal of Legal History 2014, pp 677 –683 (2014)More Less
In late antiquity and during the age of Justinian, new and multiform phenomena arose to answer the needs of monks, pilgrims, orphans, children, and aged people. These were different from the ecclesiae, and were given different names. All these names have the function of representing different charitable institutions, but each of them originated in a different and specific point of view. In the sources one finds venerabiles domus, piae causae and occasionally consortia. The term venerabiles domus reflects the material outlook, piae causae the purpose, and consortia the corporeality of human beings. The real novelty (appearing in AD 528: C.I. 1.2.19) is piae causae, which will prevail over other names. The use of these names challenges the linguistic and juridical competence of the user (a way of reasoning typical of classical Roman law).
Author Hansjorg PeterSource: Fundamina : A Journal of Legal History 2014, pp 684 –693 (2014)More Less
The reply of the Emperors Diocletian and Maximian to a certain Agathemeros, in C. 7,72,6, concerns the position of a creditor, especially in the case of a debtor's insolvency. The text lays down several fundamental legal principles concerning personal and real rights; the ranking of creditors; the fact that a pledgee has a better right than an ordinary creditor; the equal status of all ordinary creditors without any preferential right; and the heir succeeding to the obligation. This text proves to be a synopsis of the most important rules of private law.
Author Marko PetrakSource: Fundamina : A Journal of Legal History 2014, pp 694 –701 (2014)More Less
The purpose of this contribution is to analyse the Platonic foundations of Ulpian's famous praecepta iuris (honeste vivere, alterum non laedere, suum cuique tribuere) (D. 1,1,10,1). Ulpian's praecepta iuris embody the fundamental principles of the modern law of obligations. They are the indispensable basis of contemporary legal theory and practice in the law of delict and contract law. Some modern scholars believe that the sources of these precepts are the writings of Stoic philosophers. In the author's opinion, however, Ulpian's praecepta iuris have their origin in Plato's concept of justice. These tria praecepta may be traced to the first book of Plato's Politeia and specifically the maieutic dialogue between Socrates and his collocutors on the foundations of justice, where all three precepts are to be found together for the first time in the same context.
Author Pascal PichonnazSource: Fundamina : A Journal of Legal History 2014, pp 702 –718 (2014)More Less
The European Parliament has just approved a new set of optional rules for distance contracts of sale. Article 161 of the Common European Sales Law provides for a limitation of damages in respect of reasonably foreseeable losses suffered by the debtor. Pothier spoke of the notion of foreseeability of recoverable damages, which was based on Roman-law texts dealing with interesse circa ipsam rem, and developed in the Middle Ages when the important distinction between interest circa ipsam rem and interest extra rem was drawn. He brought together the idea of contract as an exchange of promises and the limitation of damages based on the object of the promise itself. Correctly excluding such limitation where losses were caused deliberately, he laid the foundation for the codification of natural law in this respect. However, the Pandectists' codifications discarded the foreseeability argument in favour of the concept of adequate causal link. Despite a more pandectistic concept of contract, modern principles have reverted to the foreseeability argument. Moreover, in Article 161 CESL the reason for excluding from the foreseeability limitation losses caused deliberately seems to have been forgotten. This contribution attempts to trace this historical evolution in order to provide a better understanding of the current position.