Scielo RSS <![CDATA[Fundamina ]]> http://www.scielo.org.za/rss.php?pid=1021-545X20140001&lang=es vol. 20 num. 1 lang. es <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Problems concerning <i>laudatio auctoris</i> and <i>denuntiatio litis</i> made by the buyer in classical Roman law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100001&lng=es&nrm=iso&tlng=es As will be shown in this article, in classical Roman law the buyer of a thing, against whom the rei vindicatio or a comparable real action had been instituted, had the duty to notify the seller. This holds true in the cases where a res mancipi had been transferred to the buyer by mancipatio, where the seller had made a stipulatio (e.g. a stipulatio duplae) against eviction and where the parties had concluded a consensual emptio venditio. The buyer who had not informed the seller of the real lawsuit initiated against him, could for different reasons institute neither the actio de auctoritate, nor the actio ex stipulatu, nor the actio empti against the seller. <![CDATA[<b>On supernatural law: about the origins of human rights and natural law in antiquity</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100002&lng=es&nrm=iso&tlng=es This article traces the classical roots of natural law and human rights. Although in antiquity there was no concept of human rights, among poets, philosophers and jurists there was an idea of justice that no government could overrule. Although the idea of rights was absent from these constructs, they form the basis of modern legal ideas. We find the first exposition of basic rights in the work of Hesiod, which, after the fifth-century crisis in the Greek concept of the world, led to a new idea of natural justice that was developed by Aristotle. <![CDATA[<b>Leibniz as legal scholar</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100003&lng=es&nrm=iso&tlng=es Gottfried Wilhelm Leibniz (1646-1716) studied Roman law and philosophy in Leipzig from 1661, and became a doctor iuris in Altdorf in 1666. Between 1665 and 1672, as a very young man, he wrote juridical texts of the highest quality. These texts comprise a unique combination of highly technical Roman law, formal logic and moral philosophy. His logical theory of legal conditions has been the focus of major research by both legal historians and philosophers during the last decade. In the second part of this paper, the different logical approaches to his theory of conditions will be discussed. <![CDATA[<b>Funktionen der Etymologie in der juristischen Literatur</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100004&lng=es&nrm=iso&tlng=es Etymologies tended to be neglected by Romanists. In recent philological research they have been proven to be a characteristic of scientific works („Fachtexte"). In order to clarify their significance it is important not only to analyse their structure, but also the context in which the etymology serves as an argument. In doing this research, one may distinguish etymologies as historical arguments (in Gaius' commentary on the Twelve Tables and Pomponius' enchiridion), etymologies as a didactical means (in Institutiones and introductions to monographs) and finally as a means of presentation (in edictal commentaries). The aetiological aspects of etymologies make them comprehend both - the teleological and the historical argument - depending on the author's intentions. This is why we need to take them, for what they are, namely neither proof of historical development, nor a weakness of juristic thought, but an argument. <![CDATA[<b><i>Ius gentium</i></b><b> und "feindesrecht": annäherungen an Tryphoninus D. 49.15.12.9 (4. Disp.)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100005&lng=es&nrm=iso&tlng=es The expression ius hostium is quite uncommon in Roman legal language. It appears in Tryphoninus D. 49.15.12.9: the jurist deals with the legal status of a slave freed in enemy territory but then returned to territory controlled by the Romans. In a conflict between two Romans claiming the slave's property or between one of them and the slave, the rules on postliminium are applied regardless of what happened iure hostium. A complete exegesis of the difficult and somewhat sinuous text cannot be given here. However, Tryphoninus at least implicitly recognises the validity of the „enemies' law" for their own sphere. Furthermore, it cannot be excluded that his solution links one party of the case to its former conduct under foreign law. This is in line with the basic idea of reciprocity underlying Roman public international law as well as with the supposed universality of slavery as a legal institution. The enemy as defined by public international law is regarded as a subject of law and even as a possible creator of law, not as an entity outside the legal sphere. <![CDATA[<b>Du droit romain dans une jurisprudence testamentaire de la Cour d'Appel de </b><b>Chişinău</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100006&lng=es&nrm=iso&tlng=es The research we conducted on Romanian jurisprudence on wills led us to a very interesting decision of the Chişinău (presently, Republic of Moldavia) Court of Appeal delivered in 1925. The region called Bessarabia reunited with Romania in 1918, but the Romanian Civil Code was extended to that territory only in 1928. Therefore, the judges in this case had to identify the laws in force at that time through an historical analysis of the consequences of the first Russian occupation of the province in 1812 on the administration of justice. Then, in terms of Bessarabian law they made an in-depth analysis of Roman law in order to solve the problem. My main purpose is to analyse the conclusions drawn by the judges in 1925. Did the Russian occupation really allow the Hexabiblon of Harmenopoulos (1345) and the Manual of Andronache Donici (1814) as sources of Bessarabian law after 1812? Is the Roman-law analysis conducted by the Court an appropriate one? However, beyond the several questions that this study raises, its main interest lies in the fact that twentieth century judges still found it useful and necessary to go back to Roman law sources to clarify and interpret the legal texts of Harmenopoulos and Donici on which they based their decision. <![CDATA[<b>Erodiano 4.12.4 e i poteri di Flavio Materniano nell'anno 217 D.C.</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100007&lng=es&nrm=iso&tlng=es The purpose of this paper is to analyse the powers conferred on Flavius Maternianus in 217 AD during Caracalla's Parthian campaign. The paper starts with an examination of Herodian's (4.12.4) and Xiphylin's (337, 19 ff. R.St. = Dio 78.4.2 Boissevain) accounts. Then a survey is presented of the main extant manuscript and epigraphic sources describing the granting of imperia to members of the senatorial order in the absence of theprinceps. The paper concludes by suggesting that Maternianus's powers were granted to him in the form of an imperium in order to enable him to manage (as long as Caracalla was absent) both the current political affairs and the troops near Rome who were not involved in the Parthian campaign. <![CDATA[<b>Teaching criminal law in early eighteenth-century Scotland: <i>collegia</i> and <i>compendia</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100008&lng=es&nrm=iso&tlng=es Many Scots students studied law in the United Provinces of the Netherlands in the late seventeenth and early eighteenth centuries. There they were often taught in private classes or collegia using compendia. These practices in teaching were adopted in Scotland when the Scottish law schools were created in the early eighteenth century. This paper examines the impact of these practices on the teaching of criminal law in Scotland in this era. <![CDATA[<b>Da sì piccoli inizi ...</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100009&lng=es&nrm=iso&tlng=es A century ago, in Roman law studies, it was a rather common idea that, in ancient cities, legal protection was not immediately extended to the legal relationships between citizens and foreigners. This protection was possible only as a consequence of a special position, granted to foreigners, through the hospitium - private or publicum - or an international obligation assumed by the city as a consequence of a treatise between two sovereign cities. This was the case of the relationship between Romans and Carthaginians established by the first treatise between Rome and Carthage in 509 BC. A different position was that of the Latini in Rome (and of the Romans in the Latin cities): to which the same Roman law as for Roman citizens applied. This kind of assimilation was known as ius commercii and conubii. Following an idea of Dieter Nörr, the author suggests that a more general legal protection should have been granted by Romans to all foreign tradesmen. For that reason there were, in the XII Tables, general provisions concerning the position of foreign citizens in process, as well in private agreements. It is also possible that the typical forms of ius civile, such as mancipatio, should have been employed in these transactions, although they could not have the same consequences for what concerns the Roman ius civile. <![CDATA[<b><i>Damnas esto</i></b><b> e <i>manus iniectio</i> nella <i>lex Aquilia:</i> un indizio paleografico?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100010&lng=es&nrm=iso&tlng=es Over the last decades, scholars analysed the matters concerning the direct effect with manus iniectio of the "damnas esto" of the lex Aquilia only from a substantive law perspective. The author here emphasises the relevance of Studemund's apographum of Gai. IV, 21 and tests the weakness of Goeschen's hypothesis compared to Studemund's interpretation of the Codex Veronensis. <![CDATA[<b>Onus probandi</b><b>: la formación del artículo 1.698 del Código Civil de Chile</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100011&lng=es&nrm=iso&tlng=es In article 1.698, the Chilean (Bello's) Civil Code provides that: "The existence of the obligations, and their extinction, shall be proved by (the person) who alleges each one of them". This is a reception of the ius commune through both French and Spanish traditions. Although this provision is substantially related to Paul's fragment (D. 22.3.2) about the burden of proof, the main source of its precise wording may be found in C. 19.4.1 about mutuum, which deals with the specific field of contract that is regulated by article 1.698 and its later sources, article 1.315 of the Code Napoléon and article 1.196 of the "Concordances" project of Garcia Goyena. Mutuum, as the foundation of article 1.698, is indeed indispensable to fix the boundaries of this provision and its proper interpretation. It has to be borne in mind that historical research is essential for a proper understanding of the proof of obligations and in terms of the final article of the Civil Code of Bello is compulsory when interpreting Chilean legislation. In this article, all the historical sources on the burden of proof of obligations are reviewed. <![CDATA[<b><i>Breviter</i></b><b> su D. 25.2.2 (Gai. <10> <i>ad ed. praet. tit. de re iud.</i>)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100012&lng=es&nrm=iso&tlng=es The article offers an exegesis of a short text from Gaius' edictal commentary, now included in the Digest title de rerum amotarum actione (D. 25.2.2, originally dealing with the consequences of the actio iudicati). The aim of this paper is to reject the position saying that matres familiarum could not be suited by way of infamous actions. For D. 25.2.2 bans a turpis actio no more than adversus uxorem (i.e. a "shameful trial" against the spouse), it concerns only the inner familiar relationship between husband and wife. So the fragment cannot be used as a general statement, valid for all women. Therefore it was normal to summon a woman with an actio furti (and also with an actio iudicati). On the basis of the Gaian fragment, the extent of use of the word addicta remains uncertain, but there is no reason to argue that women could not be subjected to addictio. <![CDATA[<b>L'evolution de la tutelle romaine a travers le mecanisme de l<i>'excusatio tutelae</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100013&lng=es&nrm=iso&tlng=es This article deals with the evolution of Roman guardianship through the mechanism of excusatio tutelae. Considered as closely related to patria potestas, guardianship was formally understood as a form of potestas and a right exercised in the interest of the protected person until she or he reached puberty. The initial concept of guardianship and the role of the guardian started to change during the Principate. Guardianship as potestas (power) developed into guardianship as munus (office). Imperial policy made an effort to harmonise the three types of guardianship according to the model of guardianship by magisterial appointment, forcing the guardian, in particular the testamentary guardian, to accept the office, to manage it efficiently and not to withdraw lightly. The aim of this paper is not to analyse Marcus Aurelius' generalisation (followed through by successive emperors) of the system of excuses, extending it to all types of guardianship, and forcing guardians to accept the office. This contribution rather focuses on the search for the correct balance between the ward's interests and the guardian's capacity to carry out his mandate effectively and efficiently. This may be deduced from a study of the rich casuistic sources dealing with the grounds for excuse and the evolution of guardianship towards a civilian charge. <![CDATA[<b>Grave est fidem fallere": Vertrauensschutz im römischen Recht</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100014&lng=es&nrm=iso&tlng=es The historical roots of the concept of protection of trust are found in the ius gentium which was primarily developed to govern the relations between Romans and foreigners or amongst foreigners themselves. The foundation of the ius gentium lies infides, namely that fiduciary duty which was characterised as fundamentum iustitiae by Cicero and which was commented upon by Ulpian with the words "grave estfidem fallere". In fact, if no inherent legal structures exist, one may only find common ground by referring to mutual trust, as it is on this basis that judicial relations can be established. Furthermore, fides has become the benchmark for contractual obligations in the form of bona fides, which has been given content through a discourse between jurists for centuries. Hence, bona fides constitutes the protection of trust. Entering into a contract based on bona fides determines accountability. This study examines the development of the concept of protection of trust through the contributions of the Roman jurists. <![CDATA[<b>Unmöglichkeit der auflösend befristeten <i>traditio</i>? <i>Fragmenta Vaticana</i> 283 und <i>Scholion</i> 1 <i>ad Basilica</i> 16.1.4 revisited</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100015&lng=es&nrm=iso&tlng=es Until recently it was generally taught that in classical Roman law ownership could not be transferred only for a definite time or under a resolutive condition, though exceptions were allowed. That a dogma (1) of the impossibility of transfer of ownership only for a given time, and (2) of the impossibility of temporary ownership formed part of Roman law, was thought to be evidenced by two texts: Fragmenta Vaticana 283, an imperial rescript dating from 286 AD, and a Scholion to Basilica 16.1.4, taken from the commentary on the Digest by the Antecessor Stephanos (536-542 AD). As a third source one could add the interpolated version of that rescript, Codex 8.54.2. The interpretation of Fragment 283 has been the topic of considerable controversy. Recently a new explanation was proposed, which, however, is shown to have no sound foundation. The argument occasions revisiting the two texts. It is submitted that dogma 1 cannot be deduced from either of them, but that dogma 2 was known by Stephanos. <![CDATA[<b>Riflessioni sul problema della continuit</b><b>à</b><b> del pensiero giuridico romano, tra risalenza di discipline e modernita della loro configurazione teorica. Il caso del processo arcaico <i>per legis actiones</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100016&lng=es&nrm=iso&tlng=es This piece of writing intends to show - moving from a specific observation point - how juridical Roman thinking has been characterised by a high continuity of vision and by a great capacity to rationally rule over the complexity of situations that had to be regulated. <![CDATA[<b>International relationships in the ancient world</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100017&lng=es&nrm=iso&tlng=es As long as the Romans had contact with the people of Italy only, their treaties embodied the concept of societas. The new formula "amicitia and societas" and the expression amicitia seem to have arisen only when Rome came into contact with other peoples in the Mediterranean area. The article aims to demonstrate that the roots of these new relationships are in international relations in the ancient Near East, and that the Romans adopted them from the Greeks. Later, they adapted the formula to their policy of expansion by using it to impose the maiestas populi Romani. <![CDATA[<b>"Soo 's Lands Ordonnantie vergeeffs niet is gemaeckt": Rooms-Fries recht in een zaak over dierschade bij het Hof van Friesland</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100018&lng=es&nrm=iso&tlng=es On 17 September 1707, in the court of first instance in Leeuwarden, farmer Jacob Jans was ordered to compensate farmer Pieter Pieters for the damage his bull caused by grazing on Pieters' land and by serving Pieters' cows. Jans, represented by lawyer Dr Henricus Popta, appealed to the Court of Friesland. Pieters was represented by Dr Sibrandus Mellama. The main question concerned the interpretation of the Landsordonnantie: is article 3, book 2, title 3 of the Landsordonnantie imperative law? Article 3 deals with damage caused by another's animal. The lawyers not only considered the relationship between the articles of the Landsordonnantie, but also the relationship between the Landsordonnantie and Roman law (Roman-Frisian law). Popta argued that article 3 should be interpreted in the "spirit of the law" and that for the purpose of claiming compensation for the damage caused by someone else's animal, the article contains a mandatory rule. According to Popta, Pieters did not comply with this rule and Jans could not be liable for the damage. He based his interpretation of the Landsordonnantie on Roman law, in particular the Codex, and on the Practicae Observationes of Andreas Gaill. Popta averred that Mellama's contention that article 3 could be invoked above Roman law as it was not drafted in a peremptory manner, was according to the "letter of the law" and against the "spirit of the law". The Court nevertheless refused the appeal. <![CDATA[<b><i>Quanti ea res erit</i></b><b>: wat vertellen we onze studenten?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100019&lng=es&nrm=iso&tlng=es To what extent do Dutch textbooks on Roman law reflect the controversy that has continued for almost a century over the interpretation of caput 3 of the lex Aquilia? In 1945, Van Oven discussed the relevant literature of his day, but since then Kaser's view has been favoured, even though, in 1976, Feenstra inclined towards Daube's alternative interpretation of quanti ea res erit and this led to the ongoing debate. The interpretation of caput 3 is clearly more controversial than students are usually led to believe. <![CDATA[<b>Perceptions of Roman justice</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100020&lng=es&nrm=iso&tlng=es The relationship(s) between "law in books" and "law in action" is fast emerging as an important area of research in relation to "law and society in the Roman world". Contrary to popular perceptions, research in this area does not focus on the gap between "law in books" and "law in action" (for the existence of such a gap is almost inevitable), but on the reasons for the existence of the gap and the various ways in which individuals accessed justice under these circumstances. To that end, the focus of this article is a specific episode recounted in the New Testament, when Roman legal officials treated Christian missionaries seemingly unfairly and in contravention of Roman law. The purpose of this article is to demonstrate that accounts such as these need to be carefully analysed using elements of textual criticism in order to uncover perceptions of justice in the Roman world. <![CDATA[<b>The experience of Roman private law in Switzerland</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100021&lng=es&nrm=iso&tlng=es A true State since 1848, Switzerland was a political creation of the end of the Middle Ages. Situated at the centre of Europe, the country has benefited from a multitude of cultural influences that have contributed to the evolution of the law. This contribution puts forward a synthesis of the experience of Roman private law in Switzerland. The text concentrates on four significant aspects: the reception of Roman law (thirteenth -seventeenth centuries); legal science (sixteenth - nineteenth centuries); the cantonal and federal codifications (nineteenth - twentieth centuries) and finally, Roman law today. The contribution concludes that it is not enough to simply speak of the experience of Roman law; rather it is necessary to speak of a variety of diverse experiences. Whether it be medieval Roman law, humanist Roman law, pandectist Roman law or codified Roman law, it is never the same Roman law. <![CDATA[<b>Plinius, <i>Epistulae</i> 8,14: Abstimmungsprobleme im römischen Senat</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100022&lng=es&nrm=iso&tlng=es Classicists, historians and public choice-theorists have all found Plin. Epist. 8,14 unsatisfactory. This paper looks into the psephological question, Pliny's core topic, from a legal perspective. In the case of Afranius Dexter's freedman, Pliny wished to let each senator declare himself just once, for the death penalty, relegation or acquittal. Whether this was a reasonable demand or the epitome of „the art of political manipulation" (Riker), depends on the ius senatorium of the time. Senators voiced their adherence to a specific sententia by way of discessio. Assembling a maior pars of the senators „present and voting" around the auctor of a specific sententia did not in itself constitute the consultum or decretum senatus, the passing of a resolution. It required a perfectio decreti senatus by the presiding magistrate. All discessiones were part of one and the same preliminary process establishing support for conflicting opinions. It was therefore permissible to try to establish support for different, even contradictory sententiae, before the consul formulated the sententia senatus (arg. 8,14,13/14). Seen in the light of the ius senatorium of his time, Pliny's position was far from manipulative. All his arguments, while sometimes far-fetched and not as pertinent as those of Roman lawyers, are comprehensible. Pliny also looks into an alternative procedure, namely formally declaring a winner after the first discessio (on relegation), with an immediate fixing of a corresponding senatus consultum (8,14,21); this, however, would extinguish all rivalling proposals (8,14,22). The senate did not subscribe to Pliny's point of view, neither in the case of Afranius Dexter's liberti nor, for all we know, subsequently. <![CDATA[<b>La formula "ut inter bonos bene agier oportet et sine fraudatione" e la nozione di "vir bonus"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100023&lng=es&nrm=iso&tlng=es The author examines the internal meaning of the formula "ut inter bonos bene agier oportet et sine fraudatione" of the actio fiduciae. In particular, citing third and second century B.C. sources, he argues (confirming the findings of his recent research) that the qualification "vir bonus" underlying the words "inter bonos" indicates an ethical-behavioural perspective, not social status. He suggests a reading that would give the adverb "bene" (generally considered pleonastic with regard to the terms "inter bonos") an autonomous role. Finally, he shows that the sources do not justify the assertion that the meaning of the criterion "ut inter bonos" has changed over time as a consequence of an alleged transformation of the notion of vir bonus. <![CDATA[<b>Die durchschnittene Kehle</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100024&lng=es&nrm=iso&tlng=es The case of a slave whose throat was cut by a barber when a ball was thrown against his hand was widely discussed in antiquity. Ulp. D. 9.2.11 pr. describes the case and suggests three possible solutions, considering the last to be the best. Ulpian asserted that the barber was not liable, because the slave should have realised that it was not appropriate to be shaved close to a place where people were playing ball. However, the Basilics (B. 60.3.11) and especially the scholium of Hagiotheodorita argued that denying the barber's liability was not an equitable solution, because both the barber and the player who kicked the ball could have been liable. According to Hagiotheodorita, a better solution would be to hold at least the barber responsible. The joint liability of more than one person ("Quotenteilungsprinzip"), which several European legal systems adopt today in similar cases, was not permissible in Roman formulary procedure. However, Mela's solution in Ulp. D. 9.2.11 pr. seems to tend in that direction. <![CDATA[<b><i>Iustitia</i></b><b> und <i>iustus</i> bei den römischen Juristen</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100025&lng=es&nrm=iso&tlng=es Much research has been done on the concept of aequitas, while the sense in which Roman jurists used the terms iustitia and iustus has until now received surprisingly little attention, even though these terms are definitely to be found in classical law. As regards their meaning, aequitas and iustitia can scarcely be distinguished at first glance. However, the Romans of the first century AD apparently did see a difference, for they struck separate coins for the goddess Iustitia on the one hand and the goddess Aequitas on the other; the latter invariably carried a pair of scales, while the former was never depicted in this way. Similarly, Roman jurists distinguished between iustitia in the broader sense of multilateral justice and aequitas in the restricted sense of a bilateral balancing of interests. Thus the concept of iustitia led to a consideration, not only of the relevant bilateral relationships but of all facts and all aspects of law and justice that affected the persons involved in the case. From this perspective, iustitia may be regarded as synonymous with aequitas totius rei. <![CDATA[<b>Gli auspici e i confini</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100026&lng=es&nrm=iso&tlng=es Boundary lines interacted with the auspices in different ways. On the one hand there were legal or natural boundaries such as streams or the fines of agri, which did not prevent the continuity of the auspicium, provided that some rituals were performed. Because of this continuity the augures did not create special categories of auspicia according to place. They only gave special names to the auspices that survived the crossing: the auspicium was called peremne when the boundary was a stream of water, and pertermine when it was a territorial border. On the other hand there was the pomerium, which had specific rules: its crossing prevented any continuity between the auspices taken domi and those taken militiae, and it is likely that because of this discontinuity the augures created the categories of the auspicia urbana and militaria. <![CDATA[<b>Traces of the dualist interpretation of good faith in the <i>ius commune</i> until the end of the sixteenth century</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100027&lng=es&nrm=iso&tlng=es The dualist interpretation of good faith (bonafides) clearly distinguishes subjective good faith (guter Glaube, goede trouw) from objective good faith (good faith and fair dealing, Treu und Glauben, redelijkheid en billijkheid). The Roman jurists never contrasted these aspects. Even in the Middle Ages and in the early modern age the majority of jurists interpreted good faith in a monist manner. The dualist interpretation of good faith first appeared - in the form of a certain "protodualism" which was different from the modern dualist interpretation outlined above - probably in a work by Franciscus Aretinus in the second half of the fifteenth century. Modern dualism appeared in the first half of the sixteenth century in works of Medina and Rebuffus. Donellus' dualism was similar to Franciscus'protodualism. More than three centuries passed before modern dualism gained wide currency after the publication of Wächter's monograph in 1871. That is probably because the majority of humanists and subsequently also a number of pandectists had an aversion to classifications of a scholastic type lacking some firm source. Such caution favoured the monist or pluralist interpretation of good faith. <![CDATA[<b>And then there were three: Drittschadensliquidation nach dem ersten Kapitel der lex Aquilia?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100028&lng=es&nrm=iso&tlng=es Gai. 3,212, IJ. 4,3,10 and D. 9,2,22,1 (Paul. 22 ed.) deal with the killing of a member of a group of slaves or animals falling under the first chapter of the lex Aquilia. In such cases, the damages exceeded the highest value of the dead slave or animal because the plaintiff was awarded compensation for the devaluation of the remaining slaves or animals as well. This article deals with the question whether the Roman jurists applied this solution only when the unit had one owner or also when the slaves or animals belonged to different owners, as in the societas-case dealt with by Celsus in D. 17,2,58 pr. (Ulp. 31 ed.). None of the relevant texts excludes such an interpretation a priori. since unitary ownership of the whole group of slaves or animals is never mentioned as a prerequisite. If the parts of such a unit belonged to different partners of a societas (and no co-ownership existed with regard to the societas' assets), the only way of holding the wrongdoer responsible for all the losses caused by his unlawful act was by granting the plaintiff compensation for the devaluation of the surviving slaves or animals owned by his partners. Without compensation for his partners' losses not even a successful plaintiff would have been able to obtain full indemnification since he had to share his gains from the proceedings regarding his slave or animal with his partners in the societas. Such an interpretation would have had practical benefits because the standard examples cited in the legal sources in such cases (twins, quadrigae, musicians, or actors) were all valuable luxury items and there is evidence that such ensembles sometimes belonged to more than one person. <![CDATA[<b>Leopold August Warnkönig, een voorganger van François Laurent in de Universiteiten van Luik en Gent</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100029&lng=es&nrm=iso&tlng=es The universities of Ghent and Liège were both established in 1817, the year of the discovery of the Veronese palimpsest. For the University of Liège, it meant that an eminent German academic, Leopold August Warnkönig, would bring the knowledge of the German Historical School not only to Liège, but also to Belgium, as he also taught at the Universities of Louvain and Ghent. Warnkönig is probably somewhat less known in Belgium than Frangois Laurent, who followed a similar academic journey: studying in Liège and becoming a professor in Ghent. This article tries to shed some light on the achievements of Warnkönig - a great German scholar who deserves much credit for his contribution to Belgium jurisprudence. <![CDATA[<b>Roman law and the <i>causa legitima</i> for reprisal in Bartolus</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100030&lng=es&nrm=iso&tlng=es Writers on the history of international law, such as Grewe and Ziegler, maintain that in the Tractatus represaliarum by the fourteenth-century jurist Bartolus de Saxoferrato, there is an analogy between ius belli and reprisal. According to these scholars, Bartolus derived his theory of causa legitima for both war and reprisals solely from scholastic thought. This seems curious, since in the Corpus iuris civilis itself there are numerous texts dealing with reprisals and self-defence. This article therefore aims to establish whether Bartolus did indeed refer to any Roman legal text in his treatment of the causa legitima for reprisal. <![CDATA[<b>Pfandrecht und Niessbrauch - Mehrfachbestellung und Konvaleszenz beschränkter dinglicher Rechte im römischen, im gemeinen und im geltenden Recht</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100031&lng=es&nrm=iso&tlng=es The convalescence of defective transfers of property interests is a long-discussed problem in Roman law. Through a comparative analysis of nineteenth-century ius commune and modern German civil-law principles, this article proposes novel insights into the classical Roman understanding of property interests. It also shows how related ius commune usufructuary concepts support a new perspective on convalescence. In doing so, this analysis revolves around a central question: If an in rem interest may be validly transferred only once, but has been transferred defectively, under what circumstances can the invalid transfer convalesce? <![CDATA[<b>Haec disceptatio in factum constitit</b><b>: Bemerkungen zur pietas im römischen unterhaltsrecht</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100032&lng=es&nrm=iso&tlng=es There is a wide range of Roman-law texts on the duty of support. This obligation may result from family connections, from the relationship betweenpatronus and freedman or even from ownership of a slave. A duty of maintenance may be imposed on somebody in a will, it may be linked to the allocation of a marriage portion, it may figure as a secondary obligation in a contract, etc. Accordingly, Roman jurists often comment on aspects of maintenance law, even outside the sedes materiae (D 25.3.5 De agnoscendis et alendis liberis vel parentibus vel patronis). They focus on a variety of legal topics, such as inheritance or succession, marriage, or negotiorum gestio. In the title De negotiis gestis in D 3.5.33 (Paulus 1 quaestionum) a case is reported which includes contradictory statements by the parties as well as exceptionally detailed statements by the jurists: Avia nepotis sui negotia gessit - a grandmother was managing her grandson's affairs; both she and the grandson having died, their heirs appeared as plaintiff and defendant. The claims related to the grandmother's maintenance of her grandson, so that defendants and plaintiffs were opponents in an actio negotiorum gestorum (directa). Earlier decisions quoted in this trial and the arguments advanced during the proceedings highlight the juxtaposition between enforceable obligations and the role of conscience where there is a duty of support. In particular, the judicial relevance of pietas will be examined in this contribution. <![CDATA[<b>Roman law and the development of Hungarian private law before the promulgation of the Civil Code of 1959</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100033&lng=es&nrm=iso&tlng=es Although Hungary had close relations with the Byzantine Empire, the fact that King Stephen I (St. Stephen) (1000-1038) and his country adopted western Christianity made the penetration of Byzantine (Roman) law into Hungary impossible. Roman law had a direct influence in Hungary only during the age of the Glossators. The impact of Roman law was much less marked in the royal statutes and decrees, the ius scriptum. King Matthias made an attempt to codify Hungarian law by issuing Act VI of 1486 (Decretum Maius). The law-book of Chief Justice Stephanus Werboczy (c. 1458-1541) systematising feudal customs in Latin, the language of administration of the kingdom of Hungary, was entitled Tripartitum opus iuris consuetudinarii inclyti regni Hungariae. It was never promulgated, so never formally became a source of law but nevertheless it became authoritative. Containing feudal private law, and usually applying Roman law only formally, it became 'the Bible of the nobility' for the following three centuries. The first attempt to codify private law in Hungary was made in the last decade of the eighteenth century. The Diet of l790-1791 set up a legal committee to prepare the necessary reforms. The idea of a comprehensive Hungarian civil code gained ground from 1895 onwards. One of its most consistent advocates was Gusztáv Szászy-Schwarz, who wished Roman law to form the basis of a codification of civil law in Hungary. The Draft Civil Code of 1928, considered by the courts as ratio scripta (until the Civil Code of 1959 came into operation) reflected the strong impact of the Swiss Zivilgesetzbuch of 1907 and Obligationenrecht of 1881. <![CDATA[<b>Codex 8 26(27) 1: The forgotten text</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100034&lng=es&nrm=iso&tlng=es In C 8 26(27) 1 Emperor Gordianus decreed that the pledgee's retention right over the pledged thing applied to both the secured and unsecured debts of the pledgor. This retention right was enforced by the exceptio doli. If the pledgor should claim for return of the pledge after payment of the secured debt, but other unsecured debts were outstanding, the pledgee could raise the exceptio doli until the latter debts had been paid. Voet shows that this rule was received in Roman-Dutch law. It was also adopted in the law of the Cape Colony and in the Transvaal. However, in the Bank of Lisbon case, no mention was made of the Codex text, Voet, the Cape law nor Smith v Farrelly's Trustee; and it is submitted that abrogation of the exceptio doli effectively abolished the pledgee's retention right. <![CDATA[<b>Das römische Recht in Lehrbüchern Des 17. und 18. Jahrhunderts in den Niederlanden</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100035&lng=es&nrm=iso&tlng=es Teaching law requires books. What were the style, form and didactic concept of legal textbooks that were used at the early Dutch universities? From the seventeenth century onwards, textbooks on civil law contained coloured highlights or were issued in a question-and-answer format. They also provided regional solutions and comparative annotations. These textbooks were very popular in their time; however, they were hardly ever cited in scientific works, and nowadays are virtually forgotten. After giving a brief sketch of the university landscape in Holland in the sixteenth to eighteenth centuries, I shall discuss some of these early textbooks. <![CDATA[<b>Words, law and a search engine</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100036&lng=es&nrm=iso&tlng=es The above article briefly outlines the problems associated with GOOGLE translations of Latin to English and conversely English to Latin. The need for some such assistance has been created by the unfortunate fact that today many lawyers and jurists can no longer read legal texts written when Latin was the international language of scholars. South Africa, together with other countries having Roman-Dutch legal systems, has been adversely affected. The immediate response was for those local scholars who were well versed in Latin and law to complete competent translations of certain Old Authorities. The need for further Latin translation has been questioned and not infrequently dismissed as irrelevant in the modern legal world. Should a required text not be available, the "Translate" function of the GOOGLE search engine is one of the only alternatives. Here I have tried to illustrate the fallacy of this present solution by choosing a few lines from Justinian's Institutes, and having it translated into English by the GOOGLE "Translate" tool. The result is a linguist's nightmare. Conversely, translating competent English versions of Institutes 2 1 12 into Latin produces a mangled "Gobbledy GOOGLE," completely ungrammatical and incomprehensible! Where do we go from here? <![CDATA[<b>Senecas Misstrauen in brief und Siegel</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100037&lng=es&nrm=iso&tlng=es In his work De beneficiis, Seneca deals with the topic of generosity from several points of view, including the legal one. This paper treats a fragment of Seneca, benef 3,15,1-4, which reports "strange" notarial practices in Italy. The philosopher wishes the central role of fides in the Roman "law in action" to be preserved - but times changed and written documents came to be preferred in every-day business transactions. According to Seneca, there were striking tensions between stipulation and consensual contracts, pacta and documentary texts. Because sealing was usual in Roman tabulae, and was a common proof in legal procedure, sealed tablets seem to have been generally trusted; there was more trust in sealing rings than in men's consciences. The central role of written tablets in legal matters soon gave rise to forgery, too. Tacitus reports a famous testamentary forgery in Roman high society in 61 AD. It seems very likely that it was because of this case that the Senatus Consultum Neronianum was introduced in 62 AD. The Senate ordered that legal documents be prepared and sealed in a particular way (Suet. Nero 17): "It was then against forgers that no tablets should be sealed unless they were bored through and a string passed three times through the holes ... ." In this paper I look at possible connections between Seneca's complaints, the SC Neronianum and documentary practice as recorded in the archive of the Sulpicii. <![CDATA[<b>The participation of laymen in the Dutch judiciary 1811-2011</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100038&lng=es&nrm=iso&tlng=es 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 ofjustice 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. <![CDATA[<b>Ulpian's <i>praecepta iuris</i> and their role in South African law Part 1: Historical context</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100039&lng=es&nrm=iso&tlng=es 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. <![CDATA[<b>Ulpian's <i>praecepta iuris</i> and their role in South African law Part 2: Modern-day South African practice</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100040&lng=es&nrm=iso&tlng=es 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. <![CDATA[<b>Zur mittelbaren <i>iniuria</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100041&lng=es&nrm=iso&tlng=es 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. 47.10.1.3) 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. 47.10.1.9); the aestimatio in every action is independent of the aestimatio in the other actions (Paul citing Pomponius in D. 47.10.18.2; Ulpian D. 47.10.30.1). According to Neraz (cited by Ulpian D. 47.10.1.8) 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. 47.10.18.4-5). Finally - as explained by Paul (D. 47.10.26) and Ulpian (D. 47.10.1.5) - 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). <![CDATA[<b><i>Uxores</i></b><b> constrictae</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100042&lng=es&nrm=iso&tlng=es 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. <![CDATA[<b>Wettelijke regels voor interpretatie van overeenkomsten: nodig of overbodig?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100043&lng=es&nrm=iso&tlng=es 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. <![CDATA[<b>Julian im dialog über <i>mutuum</i>, <i>traditio</i> und <i>causa</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100044&lng=es&nrm=iso&tlng=es 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. <![CDATA[<b><i>De suo dabit substitutus</i></b><b>: Papinian 29 <i>quaest.</i> D. 35, 2 (de lege Falcidia), 11, 5 und 6</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2014000100045&lng=es&nrm=iso&tlng=es 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.