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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
Sobre el heredamiento como excepción a los principios romanos de Derecho sucesorio en el vigente Código Civil de CataluñaAuthor Carmen Tort-MartorellSource: Fundamina : A Journal of Legal History 2014, pp 925 –937 (2014)More Less
The most recent codification of civil law in Catalonia (Spain) has respected, accepted and retained the strong influence that Roman law has traditionally had on the Catalan legal system, from its first codification in 1960 to the 2008 Book IV of the Catalan Civil Code. The similarity between Catalan law and Roman law may be ascribed to historical reasons, though political motives have favoured its continuation. The preamble to Book IV sets out the basic principles on which inheritance law is constructed: a) the need for the concept of an heir; b) the universality of the title of heir; c) the incompatibility of inheritance titles (nemo pro parte testatus pro parte intestatus decedere potest), and d) the durability of an inheritance title (semel heres semper heres). These four are clearly Roman, but there is a final principle: e) preference under a discretionary title, which relates to a special case in Catalonia: contractual inheritance, that we call "heredamiento." This is the only principle that does not coincide with Roman law, which did not allow inheritance to be determined by a provision inter vivos. Heredamiento is a traditional legal notion that has evolved significantly, as there has been a desire to harmonise it with the principles of Roman law. It has taken many forms, from universal donation to the current provision, which is seen as contractual succession. The present article focuses on the history of the concept of heredamiento as a counterpoint to the major Roman principles mentioned above.
Author Kaius TuoriSource: Fundamina : A Journal of Legal History 2014, pp 938 –945 (2014)More Less
Imperial control over legislation is one of the crucial changes between Republic and Principate. The aim of this essay is to analyse this historical change through the narrative tradition concerning the development of Augustus' legislative powers. Accounts by Augustus himself as well as later Roman historical authors such as Suetonius and Dio describe Augustus as legislator, which seems to indicate that there were two contradictory narratives, one Republican and the other an imperial sovereign one. These narratives were possibly aimed at different constituencies and served different purposes. Because of later developments in the powers of the Roman emperor, the imperial sovereign narrative became the dominant one in later historiography.
Author Jakub UrbanikSource: Fundamina : A Journal of Legal History 2014, pp 946 –960 (2014)More Less
The paper discusses the postulated usefulness or otherwise of some Roman legal concepts today. It critically reappraises recent scholarly proposals that the Roman law of marriage serves as a model for modern regulation. Special attention is paid to the interpretation of D. 18.104.22.168 (Ulpian), and in particular to the meaning of the concept of ius naturale in this fragment, and its decidedly non-normative function.
Author R.C. Van CaenegemSource: Fundamina : A Journal of Legal History 2014, pp 961 –964 (2014)More Less
Scholars disagree about the meaning of c 39 of Magna Carta (1215). Some read that no freeman shall be punished "except by the lawful judgment of his peers or by the law of the land", but others "except by the lawful judgment of his peers and by the law of the land". The present author believes the former version to be correct on the strength of legal and linguistic arguments. He also refers to comparable situations on the Continent that support his conclusion.
Author Rena Van den BerghSource: Fundamina : A Journal of Legal History 2014, pp 965 –972 (2014)More Less
In this article, two of the original requirements for a contract of mandate are discussed, namely that it be gratuitous and that the mandatory was only liable for dolus. The requirement that it had to be gratuitous was a rule that was generally applicable in practice and later accepted as law. Indeed, the mandatory initially performed the mandate gratuitously, but mandates gradually came to be performed by professional people who were often given an honorarium or some other form of payment for the services they had rendered. It was considered a matter of aequitas that professionals, learned and experienced men, could not deliver such services without reward. This naturally influenced the mandatory's liability: at a time when he was not paid, he was only liable for dolus. However, once the mandatory started being remunerated, it was considered only fair that his liability should increase, and he was then also held liable for culpa levis. This was considered to be justifiable in the light of the concept of aequitas, which was not only a philosophical conviction, but a real legal principle that had a positive influence on Roman law. From the above it follows that the rules discussed in this article arose from the law as it was, and that it was the influence of aequitas that caused it to change with the times so as to remain just and fair.
Author Gustaaf Van NifterikSource: Fundamina : A Journal of Legal History 2014, pp 973 –981 (2014)More Less
Closely following the text of Hugo Grotius' De antiquitate, Simon van Groenewegen argues in his Tractatus de legibus abrogatis that D. 1,3,31 (lex princeps legibus solutus) had been abrogated in Holland in the seventeenth century. More than that, D. 1,3,31 had never been in force and the counts of Holland had never been exempted from its laws. When King Philip II ignored those laws, the States General declared that he had ipso jure forfeited his right to govern and expelled him.
Source: Fundamina : A Journal of Legal History 2014, pp 982 –992 (2014)More Less
This contribution discusses the position of the creditor who in good faith accepted security created by a non-owner or on property already burdened in favour of someone else. It appears that although as a rule the bona fide creditor in possession of the charged property was not protected as he is in modern legal systems, there were instances in which the elements of possession or good faith did put him into a more favourable position.
Van een ketter wordt de tong doorstoken. Van Johannes de Doper ook. Beteugeling van "de nieuwe religie" te Nieuwpoort rond 1570Author R. VerstegenSource: Fundamina : A Journal of Legal History 2014, pp 993 –1005 (2014)More Less
The harbor city of Newport on the Flemish coast was, at the time of the reformation in the sixteenth century, a turning place for oppressed adherents of the "new religion" searching protection for themselves and their fortunes in protestant England, and "heretics" returning from England with secret correspondence, suspected books and even weapons. The repression could be severe: the tongue pierced with a glowing bar, death at the stake followed by exposure of the corpse at the gallows, and confiscation of all possessions. Fortunately there was also a wide range of other penalties ranging from house arrest to lifelong banishment from all countries ruled over by the Spanish king. At that time there was in the church of Newport an altarpiece representing the presentation to King Herod of St. John's head on a plate during a banquet in the king's palace. A striking detail: Herodias was piercing John's tongue with a fork, in accordance with a legend going back to St. Jerome. This legend was taken up in medieval mystery plays and finally even found its way to the art of Rubens himself. The link between civil penalty and legend seems to be limited to the archeology of psychological structures and reflexes.
Author Emese Von BoneSource: Fundamina : A Journal of Legal History 2014, pp 1006 –1014 (2014)More Less
In this contribution the grounds for divorce in ancient Roman law as well as in Hugo Grotius' Introduction to Dutch Law and the 1806 proposed Dutch Civil Code of Joannes van der Linden are examined to determine whether these grounds had become part of the Dutch Civil Code of 1838. The grounds for divorce in the French Civil Code, too, are analysed as this Code, which was introduced into the Netherlands in 1811, when the Netherlands became a part of the French Empire, remained in force until 1838 when the Netherlands introduced its own national Civil Code.
Der Vogel Strauß als frühes beispiel für Gesetzesanalogie : ein Phantasma? Grenzfragen bei der römischen TierhalterhaftungAuthor Andreas WackeSource: Fundamina : A Journal of Legal History 2014, pp 1015 –1030 (2014)More Less
The action for damage caused by four-footed animals, which during the Middle Ages was called the actio quadrupedaria, had to be extended by an actio utilis in Roman formulaic procedure to damage caused by other animals. Zoological observations and archeological artifacts reveal that these other animals were mainly ostriches. Modern juristic methodology would regard the example of the ostrich as an early application of an old statutory provision by analogy. The praetor had to modify the formula in the first stage of the procedure as the appointed judge was limited to a literal interpretation. The question asked in modern literature whether in Roman law the keeper was liable for damage caused by wild animals, must be answered in the affirmative. Special regulations applied to performances of wild animals and snakes before audiences. In the Lex Romana Burgundionum such liability extended to all animals, including bipeds. The Basilica make explicit mention of geese, falcons and ostriches. During the nineteenth century it was suggested that liability for the acts of persons of unsound mind be extended per analogiam to the persons responsible for their supervision.
Author Gunter WesenerSource: Fundamina : A Journal of Legal History 2014, pp 1031 –1041 (2014)More Less
The subject of this contribution is the doctrine of the sources of law during the period of the Usus modernus pandectarum. This period may also be called the time of the Jus Romano-Germanicum or Praxis juris Romani in foro Germanico (according to a work by Johann Schilter). This study is based on works of five important representatives of this tradition: Schilter, Stryk, Struve, Heineccius and Hoepfner. Johann Schilter represents the so-called media sententia. Roman law was applicable in the Holy Roman Empire not in terms of a special constitution, but by usu et consuetudine fori. A party who invoked Roman law had the benefit of fundata intentio and did not have to prove its observantia. But German law also had a fundata intentio. When there were contradictions between the two, the legislator had to decide with the help of case law. Samuel Stryk essentially followed Schiller's theory of compromise. For Georg Adam Struve the consent of the Stände (social stations) to the Reichskammergerichtsordnung of 1495 meant that the validity of Roman law was acknowledged in the territories. To the iura communia belong the imperial acts of law, Roman and canon law. Roman law was presumed to be valid. Johann Gottlieb Heineccius presented the Ius Germanicum as a complete system together with Roman law. In his Elementa iuris Germanici one may find the leading principles of German law. The axiomatic method used by Heineccius was adopted by Ludwig J.F. Höpfner in his adaption of Heineccius' Elementa iuris civilis and his commentary on Justinian's Institutiones. The doctrine of the sources of law during the period of the Usus modernus pandectarum was not uniform at all. The jurists tried in different ways to justify the validity of Roman law in the Holy Roman Empire.
Author Alain WijffelsSource: Fundamina : A Journal of Legal History 2014, pp 1042 –1050 (2014)More Less
At the Great Council of Mechlin revision (also referred to as proposition d'erreur) was an extraordinary procedural remedy which allowed a litigant to challenge a final decision of the Great Council. Revision proceedings took place before the same court (with some exceptions, for example cases from Utrecht), but judgment was given by a bench of judges of the Great Council sitting together with judges from other superior courts in the Netherlands. Revision could only be requested if the party who challenged the decision was able to argue that the judges had erred in their judgment. It was admitted (and explicitly stated in the earliest statute of 1473) that the alleged error had to relate to the facts. The sixteenth-century practice of the Great Council shows that very few revision proceedings were pursued up to the point where a new judgment was given (perhaps because most litigants were deterred by the costs). It also appears from the court's records that litigants (and their counsel) were inclined to include legal arguments in their submissions, as if an error on a point of law were also admissible. It was a controversial question, but the records show that in practice, revision submissions often addressed both factual and legal issues. Those legal issues, however, referred almost invariably to the application of iura propria, namely rules of customary and statute law. The judicial application of "written law" (ius commune, the learned Roman and canon law) was never an issue which - by itself - could justify revision proceedings.