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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
De koper van onroerend goed krijgt slechts het bezit geleverd. Verkrijgende verjaring? Een vergelijking tussen het klassieke Romeinse recht en het huidige Nederlandse rechtAuthor A.J.H. PleysierSource: Fundamina : A Journal of Legal History 2014, pp 719 –728 (2014)More Less
A person who, under classical Roman law, purchased a res mancipi a domino and received it by mere traditio could rely on and plead the exceptio rei venditae et traditae against the seller. He was considered to be a possessor. He was not in bad faith, although he knew that he had not acquired ownership and he could therefore acquire ownership by prescriptive acquisition (usucapio). He did not have to have recourse to longi temporis praescriptio. It is uncertain whether in Dutch law the same person is classified as a possessor or as a detentor. If the judge considers him to be a possessor he is nevertheless in bad faith, and therefore has to have recourse to the equivalent of the longi temporis praescriptio contained in article 3:105 BW. The uncertainty whether such a person may make use of article 3:105 BW at all forms a weak point in our legislation. The fact that he is, at best, a mala fide possessor makes his position less comfortable than the equivalent position in Roman law. The absence of an exceptio doli (and the derivates like the exceptio rei venditae et traditae) or a form of estoppel in our code (and in his predecessors) seems regrettable also in this case. All in all there is less reason under Dutch law to protect a person who has purchased an immoveable thing and recieved it by mere traditio. That his position under modern law is weaker is understandable. Unlike the obsolete mancipatio and in iure cessio the requirement of a notarial deed followed by its entry in the public registers forms a useful legal instrument that enhances legal certainty.
Author Attila Pokecz KovacsSource: Fundamina : A Journal of Legal History 2014, pp 729 –737 (2014)More Less
The civil war involving Caesar and Pompeius led to a serious economic crisis in the period from 49 to 44 BC. This cannot be regarded merely as a monetary crisis arising out of a shortage of cash, since debt affected all social classes. The fire of 50 BC, the earthquake of 49 BC, and the housing shortage that followed affected the Roman economy adversely. Because of a shortage of credit, damaged tenement houses were rebuilt only partially and at great cost. Rentals increased because the building contractors sought a quick return on their investment. The general economic crisis produced social discontent, and politicians soon tried to benefit from this atmosphere. During the period of Caesar's autocracy (49-44 BC) a state of emergency (senatus consultum ultimum) was declared twice, after magistrates belonging to Caesar's political party passed bills that promised the cancellation of debts and arrear rent. In both instances, it was an economic crisis that led to the state of emergency, not political conflict or personal rivalry.
Author Milena PolojacSource: Fundamina : A Journal of Legal History 2014, pp 738 –747 (2014)More Less
Jovan Hadzic, the drafter of the Serbian Civil Code issued in 1844 neither translated nor borrowed the provisions of the Austrian Civil Code on the occupatio of wild animals. He applied techniques typical of Roman lawyers - giving examples and cases such as the one in D. 41.1.44, using direct speech. Hadzic was obviously impressed by Gaius and his clear, comprehensible language and style. His language is very similar to that of Gaius (D. 41.1.1-6). Drawing on ancient Roman law and its casuistry, Hadzic drafted provisions which were down to earth and close to common people. His work was of great educational importance to ordinary readers, whose legal culture was at a low level after a long period of Ottoman rule.
Author David PugsleySource: Fundamina : A Journal of Legal History 2014, pp 748 –755 (2014)More Less
Justinian's Digest was compiled from opera jam paene confusa et dissoluta (Tanta 1). That cannot mean an organised library. It was a pile of manuscripts discarded after being used to compile a composite, inscription-less work to implement the Law of Citations. That work was the multitudo auctorum of Deo Auctore 6, and the multitudo antiqua of Tanta 17. The compilers started reading entire works in three Masses, and ended with fragmented or incomplete works or mere scraps of manuscript in the Appendix.
Author Alfredo Mordechai RabelloSource: Fundamina : A Journal of Legal History 2014, pp 756 –764 (2014)More Less
The aim of this study is to examine some opinions about the fas with which the ancient inhabitants of the Roman territory, the Quiriti, Sabini and Romans, complied. Our study considers the ancient Roman sources and the writings of modern scholars; and includes some notes of comparison with the Noahide legislation that applies to the whole of humanity. The Jewish sources speak of a common understanding on the part of all mankind, as from the time of Adam. According to the Bible and the Masters of Judaism, divine legislation begins with the Lord's commands to Adam, and is completed with the laws of Noah. It is therefore evident that the commands given to Adam continue to be of value even to Noah and his descendants, namely all human beings (the sons of Adam and of Noah).
Author J. Michael RainerSource: Fundamina : A Journal of Legal History 2014, pp 765 –776 (2014)More Less
This contribution tries to give an overview of Martini's personal development as a teacher at the law faculty of Vienna. Whereas Martini is generally supposed to have been a famous professor and expert on natural law, he was also deeply rooted in the Romanist legal tradition. He taught Roman law for many years, and his draft Austrian Civil Code proves his dedication to the principles of Roman law with regard to real rights, obligations and the law of succession. Moreover, he was always keenly interested in the historical hypotheses of Roman law and in the history of the Roman state. His manual ordo historiae iuris civilis is an outstanding model of the appropriate teaching of legal history, which continues to be very relevant and up to date today.
Author Rene-Marie RampelbergSource: Fundamina : A Journal of Legal History 2014, pp 777 –789 (2014)More Less
Good faith is one of the key elements of the Roman law of obligations, whose implementation rests essentially on actiones bonae fidae. Despite the important contribution that the concept of bona fides made to the law in ancient times, particularly in the field of contracts, its reception has been extremely varied. Adopted to a large extent by the German civil law and its adherents, it has not been fully received in French law, as may be seen in the French Civil Code of 1804, nor in English law, which refuses to recognise it as a concept. Moreover, some doctrines remain hostile to it, considering the principle to be too vague to be useful. However, it seems that the concept of bona fides has regained some importance, especially in European community law as well as in draft legislation, as in France for example. This contribution focuses on bona fides in Roman jurisprudence as a point of reference for developments in contemporary European lawmaking.
Author Encarnacio Ricart-MartiSource: Fundamina : A Journal of Legal History 2014, pp 790 –800 (2014)More Less
Many civil-law systems contain provisions relating to unjustified enrichment: as in the BGB, the Civil Code of the Netherlands, the Swiss Code of Obligations, the Austrian Civil Code, and the Italian Civil Code after 1942; as well as the Portuguese and Greek civil codes; some Latin-American codes such as the federal Mexican one, and the Cuban one of 1987. In the Spanish and French law, the provision is a jurisprudential creation (except that in Navarre there is specific regional legislation dealing with the issue). In Roman law, the abstract formula of the condictio allowed a great variety of claims. I analyse a text of the Institutes of Gaius, 2,79 and D. 46,3,66, a complicated text of Pomponius ad Plautium that has given rise to diverse interpretations.
Author Rosalia Rodriguez LopezSource: Fundamina : A Journal of Legal History 2014, pp 801 –813 (2014)More Less
Agapetus writes a political treatise on good governance (speculum principis); the book is representative of Byzantine political theory on governance and the good ruler. These principles influenced the programmatic and philosophical guidelines for action that the Emperor chose as emblems of his reign, at least after A.D. 534, as is shown by a study of the prefaces and epilogues of Justinian's Novels.
Author C.G. RoelofsenSource: Fundamina : A Journal of Legal History 2014, pp 814 –824 (2014)More Less
In the Netherlands and elsewhere the position of Roman law as an integral part of legal studies is now under a serious threat. This is not a matter for civilians only. International lawyers have good reason to be concerned. Public international law is not only in its origins the product of the European Roman law tradition; its development too owes much to imported Roman law principles and institutions. These have not been rendered obsolete by the massive United Nations codifications and the enormous development of international law in the last fifty years. There is no international legislature and therefore no "global constitution". However, a common legal system overarching the material rules is indispensable. Traditionally, this function was fulfilled by Roman law. Because this threatens to disappear from general legal education, it makes sense to strengthen the historical introduction, notably its Roman law component, in the curriculum of future international lawyers. Somewhat to my surprise, this pragmatic conclusion leads me to agree with the conclusion of Professor Baldus' comparative study and to vindicate Laurens Winkel's practice as a teacher of the history of international law.
Author Bernardo SantaluciaSource: Fundamina : A Journal of Legal History 2014, pp 825 –832 (2014)More Less
The tribune Q. Opimius, whose judicial events are described by Cicero in the actio secunda in Verrem (§§ 155-157), was probably tried for using intercessio against a protection clause of Sulla's law that forbade the tribunes to perform curule magistracies. The trial took place in the form of a iudicium recuperatorium for a fine. Through Cicero's testimony, we can see how this kind of trial assumed in the last republican age a criminal character, influenced by quaestiones.
Author Gianni SantucciSource: Fundamina : A Journal of Legal History 2014, pp 833 –846 (2014)More Less
This article deals with the judicial protection of ownership in Roman law. The focus is on the basic elements of the rei vindicatio per formulam petitoriam. First of all, the general structure of the formula is explained, in particular the character of the formula (abstract or causal?), the intentio of the plaintiff with the functions of arbitratus de restituendo and of iusiurandum in litem, and the exceptiones which are at the defendant's disposal. Then, the article briefly examines the plaintiff's burden of proof (medieval lawyers described this as probatio diabolica) and the different positions of the plaintiff when he takes the actio Publiciana. In the last part of the article the different positions of the defendant depending on whether or not he is possessor of the vindicated object at the time of litis contestatio are described. In closing, the effects of condemnatio pecuniaria and the concurrence of the rei vindicatio with other actions are analysed.
Philosophari necesse est, sed paucis : Juristisches und Philosophisches zum Irrtum bei vertragsschlussAuthor Martin Josef SchermaierSource: Fundamina : A Journal of Legal History 2014, pp 847 –857 (2014)More Less
Most Romanists who studied the role of mistake in the formation of a contract are puzzled by the fact that both unilateral and common mistakes should cause dissensus. Another surprise is the distinction between mistake as to the material of a thing and mistake with regard to its qualities. Today we are used to think different: common mistakes create consensus, the same thing can be made of different materials which is a question of quality. These two different questions have one thing in common: the Roman view has been influenced by contemporary philosophy and thereby developed quite peculiar solutions. This contribution aims at identifying the legal and the philosophical grounds of the Roman solutions in order to show that philosophy is only the background for thorough legal arguments. The starting point is D. 18,1,9; 11, 14 (Ulp. 28 ad Sab.) which has been discussed vividly by Romanists (especially German Romanists) in the last decades.
Author Eltjo J.H. SchrageSource: Fundamina : A Journal of Legal History 2014, pp 858 –870 (2014)More Less
Throughout the ages the image of Pontius Pilate underwent numerous changes. It varied from time to time and from place to place. In Ethiopia he is venerated as a Saint, whereas elsewhere he is considered to be a despicable judge, responsible for the crucifixion and death of an innocent accused, Jesus Christ. In the seventeenth century he received much attention, both in literature and in pictorial art. Hugo Grotius dedicated a religious play to the suffering and death of Jesus Christ, in which Pontius Pilate played an important part. This contribution aims to analyse the seventeenth century Dutch view of Pontius Pilate.
Glanz der Rhetorik und finsternis der Logik in einer Entscheidung Marc Aurels (Marcell. D. 28,4,3 pr.-1)Author Jakob Fortunat StaglSource: Fundamina : A Journal of Legal History 2014, pp 871 –880 (2014)More Less
In a case of the imperial cognitio reported by the jurist Marcellus the testator had erased the heirs from the testament. He had also erased a provision for a slave to be freed. The question arose whether the whole testament, which also contained legacies, was invalid because it lacked the institution of an heir, or whether the legacies and the provision for the slave to be freed should be considered legally valid. In Marcellus' opinion, the legacies ought to be considered legally valid, this being not only the most benign but also the most cautious solution to the problem. The emperor Marcus Aurelius accepted this approach, being convinced that the testator wanted to retain the legacies. This is quite a revolutionary decision in that it overrides the dogma of Roman jurisprudence "nemo pro parte testatus, pro parte intestatus decedere potest". However, the real punch line of the text is hidden in paragraph 1, which has erroneously been considered to be a separate case. The principle underlying the emperor's decision about the legacies is that everything should be done by the law to fulfil the testator's will. From this perspective, it is obvious that the provision for the slave to be freed ought to be void, since the testator had erased it. Marcus Aurelius followed, not this logical approach, but Marcellus' appeal to his humanity.
Author Emilija StankovicSource: Fundamina : A Journal of Legal History 2014, pp 881 –890 (2014)More Less
The 165th anniversary of the adoption of the Serbian Civil Code was in 2009. Some of its provisions, such as those concerning bequests, still have the force of positive law, which illustrates its continued relevance. The Serbian Civil Code was adopted in 1844, and was the fourth civil code in Europe after those of France, Austria and Holland. It was modelled on the Austrian Civil Code and inducted Serbia into the German legal sphere. Roman law, with its traditions and reception, had from the outset been a fundamental component of Serbian law, which was founded on the Roman-Byzantine legal tradition. Through Saint Sava's Nomocanon, written in 1219, it became the positive law of Serbia. Later, upon the adoption of Dusan's Code in 1349, the tradition of Roman-Byzantine law continued, although the influence of customary law and Orthodox Canon law cannot be discounted. In the nineteenth century, Serbia undertook civil codification much earlier than many more developed countries. In the conflict between customs and more progressive ideas in the domain of family law and the law of succession, customary law prevailed. Nevertheless, with the introduction of private property, all traces of feudalism disappeared from Serbia, which cannot be said of many other states at that time. The codification paved the way for the more rapid development of finance and trade relations and consequently also influenced other spheres of life. Serbia built its relations with other countries quickly and successfully.
Author Bernard H. StolteSource: Fundamina : A Journal of Legal History 2014, pp 891 –897 (2014)More Less
In his paraphrase of Inst. 2,16 pr. Theophilus explains pupillaris substitutio and the phenomenon of the heres who is heir in name only. He describes the latter as τό άσώματον δνομα τής κληρονομίας, an expression that seems to be unique to him and does not draw on comparable Latin terminology.
Author Fritz SturmSource: Fundamina : A Journal of Legal History 2014, pp 898 –906 (2014)More Less
When Kleisthenes, the tyrant of Sicyon, won the chariot race at Olympia, by public proclamation he invited Greeks from all parts to come and compete as suitors for his daughter's hand. From among the thirteen guests, Megakles of Athens was finally chosen. During a great feast organised for the suitors and the whole population, Kleisthenes declared: "According to the law of Athens I give my daughter Agariste into Megakles' hands"; and Megakles promised to give his heart and hand to her. The paper discusses former interpretations of Herodotus' text and points out that Michel Alliot hits the target in recognising, in Kleisthenes' declaration, evidence of the freedom of choice of the applicable law under ancient Greek law.
The development of the Cape common law during the early nineteenth century : William Porter, James Kent and Joseph StoryAuthor Philip ThomasSource: Fundamina : A Journal of Legal History 2014, pp 907 –915 (2014)More Less
Author Gerhard ThurSource: Fundamina : A Journal of Legal History 2014, pp 916 –924 (2014)More Less
The paper deals with what today we would call rational and irrational procedural methods in Greek adjudication in archaic times. In Draco's law of homicide dating back to 621-620 B.C., I see the first known move from deciding the outcome of a case by imposing purgatory oaths towards voting by a panel of judges. Although deciding on the proper wording of a purgatory oath demanded a great deal of legal experience on the part of the state authorities, the outcome of the trial depended on the irrational decision of the culprit himself to brave the wrath of the gods if he committed perjury. In Draco's law we find, firstly, the method of imposing contrary oaths (diomosiai) on each litigant (which explains the dikazein of the officials, the basileis). It was therefore not the oaths that were decisive, but the vote of the fifty-one ephetai who decided which oath was the better one. The party who won the case was the one best able to persuade the judges, and in this way, reasoning achieved a new level. This was the origin of the more rational classical Athenian procedural law. In this sense, I restored the text in the much disputed lacuna in IG I3 104.12 from the diomosiai mentioned in Ant. 6.16.