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Fundamina

On-line version ISSN 2411-7870
Print version ISSN 1021-545X

Abstract

GIANNOZZI, Elena. L'emploi des standards en droit romain. Fundamina (Pretoria) [online]. 2016, vol.22, n.2, pp.205-231. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2016/v22n2a2.

It is difficult to develop a definition of the legal concept of standard. In spite of this the term "standard" is often used in French law. For example, good faith (bonne foi), sound morals (bonnes mœurs) and pater familias (bon père de famille) are considered standards. We find the same concepts in Roman law. Moreover, it appears that the use of this kind of concepts is precocious: the action of the fiducia, which dates back at least to the second century BC, mentions the clause ut inter bonos bene agier. Yet, as is often the case, there is no general category that encompasses all these concepts. It is consequently tempting to classify them as "standards" to fill this void. Methodologically speaking, however, it is hard to establish if it is correct to use the term "standard". In fact, this classification raises a problem of coherence. The legal use of the term "standard", which is of Anglo-Saxon origin, is recent. It dates back to the 1920s. N Roscoe Pound probably used it first and had an important role in its success. French lawyers began to employ the concept of "standard" to achieve a more flexible interpretation of the statutory law. Is it pertinent to use a clearly anachronistic word to describe Roman reality? It would be reasonable to fear that the application of the term "standard" would result in a deformation of Roman law. Though, an analysis of the sources shows that it is possible and even fruitful to apply the contemporary concept of "standard" to Roman law. While it is true that it is anachronistic, using it seems to improve our understanding of Roman law.

Keywords : Standards; good faith; reasonable man; tort; Roman law; French public law; French private law.

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