oa Fundamina : A Journal of Legal History - - ein beleg für -Haftung in der ?



Chapter 84 of the excludes a number of from municipal jurisdiction. In the list of excluded actions we find the following in lines 9 and 10: . In an article in the Savigny-Zeitschrift (2007) Dieter Nörr argues that this is a proof of liability for in the three relevant contracts ( and ). 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 that his claim was based not on , but merely on . This assumption implies that in all three contracts liability for already existed in the first century AD. The present contribution approaches the question from the perspective of the classical law of . Whereas the traditional view of twentieth-century scholars was that liability was limited to , a different picture has been painted recently. Even if there are traces of liability for 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 (promulgated in the last decade of the first century AD) already presupposed liability for in general. More importantly, the wording of the is rather puzzling. It is not clear whether the phrase refers only to mandate or to and 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 "). Yet it could also be understood as a mere explanatory remark (" it is said that something was done with "), which means it could definitely not be understood as a proof of liability for . This paper explores the new hypothesis that could be a hint of an - until now not clearly identified - formula in , which included a reference to a . The conclusion drawn is that continuing uncertainties do not allow us to view the as a proof of a generally accepted liability for in the contracts of and during the first century AD.


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