Scielo RSS <![CDATA[Fundamina ]]> vol. 20 num. 2 lang. pt <![CDATA[SciELO Logo]]> <![CDATA[<b>Profili di romanisti: I molteplici talenti di Lucio Bove</b>]]> 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. <![CDATA[<b>L'età per fidanzarsi nei <i>libri differentiarum</i> di Modestino</b>]]> 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. <![CDATA[<b>La portee normative des <i>rescripta ad consultationem emissa</i> sous Constantin</b>]]> 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. <![CDATA[<b>Une <i>repetitio</i> de Pierre de Belleperche sur la "loi" <i>Quod Nerva</i> [D. 16,3,32]</b>]]> 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". <![CDATA[<b>The Romanist before the reforms of family property law of the old Catalan Compilation</b>]]> 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. <![CDATA[<b>Legge e limite nell'ebraismo</b>]]> 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 mitzvdf), 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 mitzvdt. 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. <![CDATA[<b><i>Suasor legis,</i></b><b> le vote du plebiscite Claudien</b>]]> 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? <![CDATA[<b>Cederé il passo alle signore</b>]]> 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. <![CDATA[<b>Declamare le Dodici Tavole: Una parafrasi di <i>XII Tab.</i> V, 3 nella <i>declamatio minor</i> 264</b>]]> 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. <![CDATA[<b>Papiniano cita Marcello: Un (piccolo) problema palingenetico</b>]]> 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. (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. 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. 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. <![CDATA[<b><i>Quod dolo malo factum esse dicatur</i></b><b> - ein Beleg für <i>culpa</i>-Haftung in der <i>lex Irnitana?</i></b>]]> 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 autfiduciae aut mandati quod dolo malo factum esse dicatur. In an article in the Savigny-Zeitschrift (2007) Dieter Norr argues that this is a proof of liability for culpa in the three relevant contracts (societas, fiducia and mandatum). According to Norr, 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. Norr 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. <![CDATA[<b>Notas sobre la suspensión de la condena capital de la mujer embarazada en el derecho romano</b>]]> 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. <![CDATA[<b>Brevi note sulla "<i>mors litis</i>" per inattività</b>]]> 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. <![CDATA[<b>Een erfrechtelijk geschil binnen de familie Haller von Hallerstein (1595-1603): Van eenheid naar verscheidenheid binnen het West-Europese recht</b>]]> 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. <![CDATA[<b>Imagen y represión de la prostitución en época visigoda</b>]]> 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. <![CDATA[<b>Ein Leihvertrag unter <i>contubernales</i> und seine folgen - Anmerkungen zu Afr. (8 <i>quaest</i>.) D.</b>]]> In Afr. D. 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., 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. <![CDATA[<b>Latino e altre lingue nel tardo antico: Qualche considerazione sulle "piae causae"</b>]]> 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). <![CDATA[<b>Codex 7,72,6</b>]]> 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. <![CDATA[<b>Plato and Ulpian's <i>praecepta iuris</i></b>]]> 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. <![CDATA[<b>Prévisibilité du dommage et <i>damnum extra rem</i></b>]]> 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. <![CDATA[<b>De koper van onroerend goed krijgt slechts het bezit geleverd. Verkrijgende verjaring? Een vergelijking tussen het klassieke Romeinse recht en het huidige Nederlandse recht</b>]]> 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,36 and therefore has to have recourse to the equivalent of the longi temporis praescriptio contained in article 3:105 BW.37 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. <![CDATA[<b>Economic crisis and <i>senatus consultum ultimum</i> (48 and 47 BC)</b>]]> 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. <![CDATA[<b>Gaius, Hadzic and <i>occupatio</i> of wild animals - classical Roman law in the Serbian Civil Code</b>]]> 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. <![CDATA[<b><i>Opera jam paene confusa et dissoluta (Tanta 1)</i></b>]]> 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. <![CDATA[<b>Alcune note sul <i>fas</i> ed i precetti noachidi</b>]]> 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). <![CDATA[<b>Karl Anton von Martini der Romanist</b>]]> 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). <![CDATA[<b>La bonne foi contractuelle: D'un passe glorieux a un avenir contraste?</b>]]> 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. <![CDATA[<b>Continuidad histórica de la prohibición de enriquecimiento injustificado</b>]]> 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 1941; 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, 1,79 and D. 46,3,66, a complicated text of Pomponius ad Plautium that has given rise to diverse interpretations. <![CDATA[<b>Principios de gobierno <i>ad specula principis en</i> las Novelas de Justiniano</b>]]> 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. <![CDATA[<b>An umbilical cord to be preserved: The relationship between Roman law and public international law</b>]]> 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. <![CDATA[<b>Osservazioni su Cicero II <i>in Verrem</i> 1.155-157</b>]]> 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. <![CDATA[<b>Die <i>rei vindicatio</i> im klassischen römischen Recht - ein Überblick</b>]]> 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. <![CDATA[<b><i>Philosophari necesse est, sed paucis:</i></b><b> Juristisches und philosophisches zum Irrtum bei Vertragsschluss</b>]]> 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. <![CDATA[<b>Pontius Pilatus op de Lithostrotos</b>]]> 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. <![CDATA[<b>Glanz der Rhetorik und Finsternis der Logik in einer Entscheidung Marc Aurels (Marcell. D. 28,4,3 pr.-1)</b>]]> 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. <![CDATA[<b>The Serbian Civil Code - the fourth codification in Europe</b>]]> 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. <![CDATA[<b>Theophilus and the "incorporeal" heir</b>]]> 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 όνοµα της κληρονοµίας, an expression that seems to be unique to him and does not draw on comparable Latin terminology. <![CDATA[<b>Rechtswahl bei Agaristes Heirat - zu Herodots Historien VI 126-131</b>]]> 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. <![CDATA[<b>The development of the Cape Common Law during the early nineteenth century: William Porter, James Kent and Joseph Story</b>]]> The role of William Porter, the second Attorney-General at the Cape of Good Hope in the development of Cape colonial law is investigated. Particular attention is given to his American sources, Kent and Story, and the resulting legal pluralism. <![CDATA[<b>Rationality and irrationality in the ancient Greek law of procedure</b>]]> 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 621620 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. <![CDATA[<b>Sobre el heredamiento como excepción a los principios romanos de derecho sucesorio en el vigente Código Civil de Cataluña</b>]]> 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. <![CDATA[<b>Augustus, legislative power, and the power of appearances</b>]]> 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. <![CDATA[<b>On the uselessness of it all: The Roman law of marriage and modern times</b>]]> 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. (Ulpian), and in particular to the meaning of the concept of ius naturale in this fragment, and its decidedly non-normative function. <![CDATA[<b>A note on chapter 39 of Magna Carta</b>]]> 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. <![CDATA[<b>A rule must arise from the law as it is - and it is not cast in stone</b>]]> 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. <![CDATA[<b><i>Lex</i></b><b> princeps legibus solutus <i>abrogata</i></b>]]> 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. <![CDATA[<b>The (lack of) protection of <i>bona fide</i> pledgees in classical Roman law</b>]]> 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. <![CDATA[<b>Van een ketter wordt de tong doorstoken. Van Johannes de Doper ook. Beteugeling van "de nieuwe religie" te Nieuwpoort rond 1570</b>]]> 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. <![CDATA[<b>The historical development of grounds for divorce in the French and Dutch Civil Codes</b>]]> 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. <![CDATA[<b>Der Vogel Strauβ</b> <b>als frühes Beispiel für Gesetzesanalogie: Ein Phantasma? Grenzfragen bei der römischen Tierhalterhaftung</b>]]> 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. <![CDATA[<b>Ius Romano-Germanicum - zur Rechtsquellenlehre des Usus modernus pandectarum</b>]]> 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 offundata 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 Stande (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. Hopfner 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. <![CDATA[<b>Revisie en rechtsdwaling</b>]]> 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.