A Reconsideration of Possessio

1956 ◽  
Vol 14 (2) ◽  
pp. 235-247
Author(s):  
R. W. M. Dias
Keyword(s):  
Common Law ◽  
The Other ◽  
Present Writer ◽  
Roman Law ◽  
Physical Control ◽  
The Common ◽  
The One ◽  
The Right ◽  
What Matters

The literature on possessio has now assumed such proportions that it will require a volume at least to do anything like justice to it. The purpose of this article is only to outline an approach to the Roman law of possessio as suggested by Kocourek's analysis of possession in the common law. The present writer believes that a substantial similarity exists between these two great systems in their approach to possession and this has not been due to any borrowing by the one from the other: a fact which, if proved, should be of no little jurisprudential interest. It is, therefore, merely as a prologue to a fuller exposition elsewhere that the following contentions are advanced as to possessio in Roman law.Kocourek, writing of the common law, maintained that “possession” as a juridical concept distinct from physical control on the one hand and the right to have physical control on the other was unnecessary. If a person actually holds a thing, he either has a right to continue holding it or he has no right; if he is not holding a thing, he either has or has not a right to hold it. In all cases what matters is the right to have physical control. As long as the term “possession” is confined to physical control, no harm is done, but what Kocourek objects to is that mysterious tertium quid, called “possession,” from which are distinguished both physical control and the right to it, the former being known variously as “de facto possession,” “custody,” “detention,” and the latter as the “right to possess.”

Part III The right To Terminate, 5 Breach of Condition

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
Common Law ◽  
The Other ◽  
The Common ◽  
The Right

This chapter focuses on breach of condition. The first situation in which termination will be available is where the other party has broken a ‘condition’. A condition is a stipulation in a contract, be it a contract of sale or some other contract, the breach of which gives rise to the right to ‘treat the contract as repudiated’. When is a term a ‘condition’? A term can be made a condition either by express stipulation or by implication. The chapter then distinguishes condition from various other concepts with which it may appear to have similarities, but which work in different ways. It also looks at time stipulations and the divergent approaches of the common law and equity to time stipulations.

Religion's ‘Foundation in Reason’: The Common Sense of Hume's Natural History

1994 ◽  
Vol 24 (4) ◽  
pp. 565-581
Author(s):  
M. Jamie Ferreira
Keyword(s):  
Common Sense ◽  
The Other ◽  
Rational Justification ◽  
Rational Argument ◽  
Regular Model ◽  
The Common ◽  
The One ◽  
The Right ◽  
Forceful Critique ◽  
Critique Of Religion

David Hume’s critique of religion reveals what seems to be a vacillation in his commitment to an argument-based paradigm of legitimate believing. On the one hand, Hume assumes such a traditional (argumentbased) model of rational justification of beliefs in order to point to the weakness of some classical arguments for religious belief (e.g., the design argument), to chastise the believer for extrapolating to a conclusion which outstrips its evidential warrant. On the other hand, Hume, ‘mitigated’ or naturalist skeptic that he is, at other times rejects an argumentbased paradigm of certainty and truth, and so sees as irrelevant the traditional or ‘regular’ model of rational justification; he places a premium on instinctive belief, as both unavoidable and (usually) more reliable than reasoning. On this view, a forceful critique of religion would have to fault it, not for failing to meet criteria of rational argument (failing to proportion belief to the evidence), but (as Hume sometimes seems to) for failing to be the right sort of instinct.

Is the Prisoner's Character Indivisible?

1953 ◽  
Vol 11 (3) ◽  
pp. 377-394 ◽  
Author(s):  
R. N. Gooderson
Keyword(s):  
Common Law ◽  
The Other ◽  
Sexual Morality ◽  
The Common ◽  
The One ◽  
A Charge

“There is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.” This observation fell from Humphreys J. in delivering the judgment of the Court of Criminal Appeal in R. v. Winfield (1939). The purpose of this article is to suggest that at common law this statement is not borne out by principle or by authority. The effect on the common law where the prisoner elects to go into the witness-box in exercise of the statutory opportunity created by the Criminal Evidence Act, 1898, will also be considered. The type of situation that arises is illustrated by Winfield's Case, where the facts, in brief, were that on a charge of indecent assault, W. put in issue his good character for sexual morality, and the prosecution in cross-examination proved his previous convictions for offences involving dishonesty. The court held that such cross-examination was proper. The question is whether the evidence of the good or bad character of the prisoner must be confined to the trait or traits relevant to the type of crime charged. It will be submitted that the evidence must be so confined. On an indictment for murder, evidence of the good or bad character of the prisoner for honesty will be inadmissible. Not only the crime charged but also the circumstances in which it is alleged to have been committed must be considered. If the murder is committed with a hammer, character for peace and quiet on the one hand and for violence on the other will be admissible, but not if it is a case of slow poisoning.

Becoming Roman, staying Greek: Culture, identity and the civilizing process in the Roman East

1994 ◽  
Vol 40 ◽  
pp. 116-143 ◽  
Author(s):  
Greg Woolf
Keyword(s):  
General Rule ◽  
The Other ◽  
Roman Law ◽  
Cultural Assimilation ◽  
Regional Trade ◽  
Greek Culture ◽  
Civilizing Process ◽  
The Common ◽  
Greek East ◽  
The One

The nature, and indeed the reality, of Romanization in the east is controversial. One of the most influential accounts of Romanization in the western provinces notes that ‘by contrast, where Greek was already the language of culture, of government and of inter-regional trade, the Romans carried further the process of Hellenization … in general what was specifically Latin in the common civilization of the empire made little impact in the east’, the exceptions being the influence of Roman law and the popularity of gladiatorial games. That verdict endorsed the view that ‘the emperors made no attempt to romanise the Greek speaking provinces’, which saw the foundation of cities as a continuance of Hellenistic royal practice, and which regarded the establishment of the rare eastern colonies as motivated by practical considerations rather than any attempt at encouraging cultural assimilation. More recently, a fuller survey of exceptions to this general rule nevertheless concluded that ‘On the one hand, the culture and identity of the Greek east remained fundamentally rooted in the Classical past. On the other hand, the visible presence of Rome, outside those zones where the legions were stationed, was extremely slight.’

scholarly journals Euthanasia under French law

2021 ◽  
pp. 145-152
Author(s):  
A. Haddadi ◽  
F. Ravaz
Keyword(s):  
Criminal Law ◽  
Question Answering ◽  
Common Law ◽  
The Other ◽  
Third Party ◽  
Right To Die ◽  
French Law ◽  
The Face ◽  
The One ◽  
The Right

Under criminal law, euthanasia can have two distinct qualifications: that of homicide in the event that the act of directly killing another person is characterized, or that of assisting a third party in the suicide. These two qualifications are applicable on the condition that the agent — the author of the act of causing death — is not the one who went through it. In fact, selfeuthanasia is nothing more than suicide.In addition to euthanasia imposed to a third party (such as in the case of Malevre, nurse from Mantes-la-Jolie, tried in 2003), the euthanasia requested and subscribed constitutes a complex legal question. Answering this question first involves specifying the position of contemporary criminal law in the face of suicide.In the event that suicide is only decriminalized, in fact, the author of the act — regardless of the outcome of his actions, who is himself the victim, cannot be prosecuted. Nor ultimately receive any condemnation.However, this lack of prosecution and conviction is by no means an endorsement of the act — suicide — by the law.Moreover, in the event that suicide is a right, it would then be necessary to agree that any candidate for this act can request assistance in the accomplishment of his death. Given these two opposing approaches, imposed on us the question of whether there is a right to die.Although the euthanasia imposed is unequivocally under ordinary criminal law, the euthanasia requested and granted is not based on any rights. To date, there is no right to approve a death request, but on the other hand, it does allow it to be respected and to some extent promotes its approach with dignity. This work will focus on two central points which are the possibility that euthanasia is a homicide under common law (I) and the attitude of French law concerning the right to death (II).

scholarly journals Creating a Servitude to solve an Encroachment Dispute: A Solution or creating another Problem?

2017 ◽  
Vol 16 (5) ◽  
pp. 454
Author(s):  
Zsa-Zsa Temmers Boggenpoel
Keyword(s):  
South African ◽  
Common Law ◽  
Court Order ◽  
General Application ◽  
African Context ◽  
Personal Level ◽  
The Common ◽  
The Creation ◽  
The One ◽  
The Right

The main focus of this note is the case of Roseveare v Katmer, Katmer v Roseveare 2013 ZAGPJHC 18, which provides an interesting (though possibly constitutionally problematic) perspective to the encroachment problem. The decision in this case has opened the door for courts to create servitudes in instances where encroachments are left intact based on policy reasons. Concerning these policy reasons, the note investigates the reasonableness standard as it was applied in the case. It is argued that it is important to differentiate between the applications of reasonableness in encroachment cases and alleged nuisance disputes. The decision in this case creates the impression that courts may now order that a servitude be registered in favour of the encroacher against the affected landowner’s property. It seems as though the court had in mind the creation of a praedial servitude to justify the continued existence of the encroachment. The servitude is created by court order against the will of the affected landowner. At common law, the creation of a servitude in this respect does not exist, and the authority from which the power derives to make an order like this is not entirely clear. The court also does not provide any authority for the creation of the servitude in favour of the encroacher. Consequently, it is argued that this may have serious constitutional implications. For one, lack of authority for the deprivation that results may be unconstitutional because there is no law of general application that authorises the deprivation in terms of section 25(1). The creation of a servitude to explain the continued existence of the encroachment is not automatically included in the general discretion to replace removal with compensation. It is contended that an order that forces the affected landowner to register a servitude in favour of the encroacher to preserve the existing encroachment situation will be in conflict with section 25(1) as far as the common law does not authorise such an order. Furthermore, an order creating a servitude against the affected landowner’s will need to be separately justified in terms of the non-arbitrariness requirement in section 25(1). In this respect, the order will be unjustified and therefore arbitrary on both a general and personal level. Although this decision eliminates the enduring problem in encroachment law concerning the rights of the respective parties to the affected land where encroachments are not removed, it is reasoned in this note that the solving of this problem may have created another one. The decision is undoubtedly a step in the right direction, in so far as the court has attempted to provide clarity in terms of the rights to the encroached-upon land. However, the absence of authority either in terms of the common law or legislation to create a servitude in this context, indicates that courts should avoid orders of this nature because of their implications. If legislation is enacted to regulate building encroachments, it may be useful to explain what happens when the encroachment is not removed and it may also provide the required law of general application to prevent constitutional infringement. The legislation should specify the nature of the right acquired by the encroacher, which in the South African context should probably be a servitude created against the affected landowner’s property. This may ensure that the required authority exists for the creation of the servitude and would also provide the necessary justification to prevent the arbitrary deprivation of property. It is accordingly submitted that the unnecessary confusion that results from the inability to explain the outcome (or provide sufficient reason) on the one hand, and the possible constitutional infringement due to the lack of authority on the other, may therefore be cleared up by the suggested legislation.

Liberty and the Common Law

1945 ◽  
Vol 9 (1) ◽  
pp. 2-16 ◽  
Author(s):  
Lord Wright
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Civil Law ◽  
The State ◽  
Roman Law ◽  
Case System ◽  
The Common ◽  
The Law ◽  
The Individual ◽  
The Right

In preparing the few and elementary observations which I am about to make to you tonight I have wondered if the title I chose was apt or suitable. The Common Law is generally described as the law of liberty, of freedom and of free peoples. It was a home-made product. In the eighteenth century, foreign lawyers called it an insular and barbarous system; they compared it to their own system of law, developed on the basis of Roman and Civil Law. Many centuries before, and long after Bracton's day, when other civilised European nations ‘received’ the Roman Law, England held back and stood aloof from the Reception. It must have been a near thing. It seems there could have been a Reception here if the Judges had been ecclesiastics, steeped in the Civil Law. But as it turned out they were laymen, and were content as they travelled the country, and in London as well, to adopt what we now know as the Case System, instead of the rules and categories of the Civil Law. Hence the method of threshing out problems by debate in Court, and later on the basis of written pleadings which we find in the Year Books. For present purposes, all I need observe is that the Civil Lawyer had a different idea of the relation of the state or the monarch to the individual from that of the Common Lawyer. To the Civil or Roman Lawyer, the dominant maxim was ‘quod placuit principi legis habet vigorem’; law was the will of the princeps. With this may be compared the rule expressed in Magna Carta in 1215: No freeman, it was there said, was to be taken or imprisoned or exiled or in any way destroyed save by the lawful judgment of his peers and by the law of the land. Whatever the exact application of that phrase in 1215, it became a text for fixing the relations between the subject and the State. Holdsworth quotes from the Year Book of 1441; the law is the highest English inheritance the King hath, for by the law he and all his subjects are ruled. That was the old medieval doctrine that all things are governed by law, either human or divine. That is the old doctrine of the supremacy of the law, which runs through the whole of English history, and which in the seventeenth century won the day against the un-English doctrine of the divine right of Kings and of their autocratic power over the persons and property of their subjects. The more detailed definition of what all that involved took time to work out. I need scarcely refer to the great cases in the eighteenth century in which the Judges asserted the right of subjects to freedom from arbitrary arrest as against the ministers of state and against the validity of a warrant to seize the papers of a person accused of publishing a seditious libel; in particular Leach v. Money (1765) 19 St. Tr. 1001; Entick v. Carrington (1765) 19 St. Tr. 1029; Wilkes v. Halifax (1769) 19 St. Tr. 1406. In this connexion may be noted Fox's Libel Act, 1792, which dealt with procedure, but fixed a substantive right to a trial by jury of the main issue in the cases it referred to.

La Participation des Facultés et Institutions de Recherche Européennes au Développement Juridique Africain.

1971 ◽  
Vol 15 (1) ◽  
pp. 13-40
Author(s):  
J. Vanderlinden
Keyword(s):  
Social Sciences ◽  
General Structure ◽  
Common Law ◽  
Comparative Law ◽  
The Other ◽  
African Continent ◽  
The Social ◽  
The Common ◽  
University Curricula ◽  
The One

SUMMARYThere are two aspects to this subject. On the one hand, one may investigate the background of the students for whom this teaching is intended. Some persons think that one must be concerned with courses aimed principally at Africans who are unable to attend university in their countries of origin; others think that such courses should be open to all who are interested in comparative law and should place African legal systems on the same level as those of the common law countries or Soviet law.On the other hand, experts in this field are divided on the question of the place which African law should occupy in the general structure of university curricula; in some people's view it is useful to distinguish the traditional law from the modern law, associating the former with the social sciences and the latter with law proper. Other specialists think that it is not possible to teach African law without first giving the student a solid grounding in the sociology, politics, and economics of the African continent.

THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW: CONCEPTUAL CONUNDRUM OR INTERPRETATIVE INQUIRY?

2002 ◽  
Vol 61 (1) ◽  
pp. 87-125 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Common Law ◽  
The Other ◽  
Current Debate ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
True Meaning ◽  
The Common ◽  
The One

THE essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.12

2015 ◽  
Author(s):  
Huber Peter
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Time Limit ◽  
The Other ◽  
Reasonable Time ◽  
Time Limits ◽  
Individual Term ◽  
Time Period ◽  
The Common ◽  
The Right

This commentary focuses on Article 3.2.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning time limits for exercising the right to avoid the contract. Art 3.2.12 stipulates that notice of avoidance shall be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely. Where an individual term of the contract may be avoided by a party under Article 3.2.7, the period of time for giving notice of avoidance begins to run when that term is asserted by the other party. In relying on a ‘reasonable time’ period rather than setting out a clearly defined period of time (for example, two years after conclusion of the contract), Art 3.2.12 follows the common law model rather than the typical civil law solution. This commentary discusses the commencement and duration of ‘reasonable time’ period as well as the consequences of failure to avoid a contract within time limit.

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