'Zucker' and 'Fräsmaschinen', Did Roman law know 'co-ordinate possession' ('Nebenbesitz')?

2010 ◽  
Vol 78 (1-2) ◽  
pp. 209-218
Author(s):  
F. Brandsma
Keyword(s):  
Roman Law ◽  
Ius Commune ◽  
Legal Literature

AbstractIn German legal literature a theory of so-called 'Nebenbesitz' ('co-ordinate possession') is being discussed since more than half a century. It would be applicable when a detentor, a lessee e.g., makes a delivery constituto possessorio to a new lessor, making him possessor, but goes on paying rent to the old lessor, which would leave this lessor in possession. Both possessors would be co-ordinate possessors. Some authors have been referring to Roman law (D. 41,2,32,1) as though it already knew co-ordinate possession. This paper examines the Roman law and ius commune sources and concludes they did not know 'Nebenbesitz'.

The Common Law (And Not Roman) Origins of Amicus Curiae in International Law – Debunking a Fake News Item

Global Jurist ◽  
2019 ◽  
Vol 20 (1) ◽  
Author(s):  
Luigi Crema
Keyword(s):  
International Law ◽  
Common Law ◽  
Primary Source ◽  
Roman Law ◽  
Primary Sources ◽  
News Item ◽  
Amicus Curiae ◽  
Ius Commune ◽  
Legal Literature ◽  
The Common

Abstract The possibility for private entities interested in international trials but without the legal requirements to participate as a party was precluded, in a classical vision of international law made for states and addressed to states. At present, however, with some notable exceptions, several international jurisdictions allow for the submission of amicus curiae briefs. These briefs were introduced to international courts by common law lawyers. Legal literature generally identifies it as an institution of classical Roman law. This paper will show that this assumption is, however, doubtful. An examination of the sources cited by an important dictionary and other decades-old legal scholarship relied upon today as establishing the Roman origins of amicus curiae, and a fresh study of Roman and later continental European primary sources reveal a different picture: in reality, there is neither a basis for grounding the amicus curiae in Roman law, nor is there a basis for grounding it in the medieval continental ius commune. The primary source is most likely English common law and, not surprisingly, it was common law lawyers who introduced the briefs into international litigation.

Scots Law: Mixed from the Very Beginning? A Tale of Two Receptions

2000 ◽  
Vol 4 (1) ◽  
pp. 3-18 ◽  
Author(s):  
WDH Sellar
Keyword(s):  
Middle Ages ◽  
Common Law ◽  
General Meeting ◽  
Roman Law ◽  
Mixed System ◽  
Annual General Meeting ◽  
Ius Commune ◽  
Profound Influence ◽  
Anglo Norman ◽  
Considerable Period

This article is the revised text of the lecture delivered to the Stair Society at its Annual General Meeting in November 1997. It defends the proposition that Scots law, from the time of its emergence in the Middle Ages, has been a “mixed” system, open to the influence of both the English Common Law and the Civilian tradition. It also compares and contrasts the Reception of the Anglo-Norman law with that of Roman law. The former was quite specific as regards both time and substantive legal content. The Reception of Roman law, on the other hand, took place over a considerable period of time, and its effects were complex and diffuse. Above all, the Civilian tradition and the wider ius commune provided an intellectual framework against which to measure Scots law. Both Receptions exercised a profound influence on the continuing development of Scots law.

VI. Der römische Eigentumsvorbehalt als Vorbehalt des Besitzes

2015 ◽  
Vol 132 (1) ◽  
Author(s):  
Jakob Fortunat Stagl
Keyword(s):  
Point Of View ◽  
Good Faith ◽  
Roman Law ◽  
Ius Commune ◽  
Functional Equivalent

AbstractRoman retention of title clauses as retention of possession. It is the dominant view that Roman law did not know retention of title clauses (pactum reservati dominii) which is, accordingly, considered to be an invention of the medieval ius commune. This opinion is true to the extent that retention of title was inefficient from the Roman point of view because the buyer as possessor was always in the position of acquiring ownership by acquisitive prescription (usucapio), the requirement of good faith being met in these instances. The Roman lawyers, therefore, devised different means to make sure that the buyer would get the use of the sold good (detentio) without becoming possessor thus preventing the dreaded usucapio. This ‘retention of possession’ (Besitzvorbehalt) is the Roman functional equivalent to modern retention of title.

scholarly journals The origin of the institute of procedural substitution in Bulgarian law

2021 ◽  
Vol 16 (3) ◽  
pp. 10-22
Author(s):  
Todor Kolarov
Keyword(s):  
Roman Law ◽  
Ancient Rome ◽  
Legal Regime ◽  
Ius Commune ◽  
The Law

The article strives to analyse the origin of the institute of procedural substitution (for the lack of a better term) in Bulgaria through historic overview, starting with the law of Ancient Rome, going through ius commune and finishing with the contemporary legal regime. From a procedural standpoint, the conclusion is that the institute came into being at the end of the XIX and beginning of the XX century. While manifestations of procedural substitution can be found in the Roman law, this is not an indication of a formulation of the legal institute itself.

scholarly journals A Oralidade (e a Escrita) no Novo Código de Processo Civil Brasileiro

2013 ◽  
Vol 8 (1) ◽  
Author(s):  
Oscar Valente Cardoso
Keyword(s):  
Middle Age ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Roman Law ◽  
Historical Evolution ◽  
Current Regulation ◽  
Historical Perspectives ◽  
Ius Commune ◽  
Modern Age ◽  
Procedure Code

Resumo: O artigo trata da oralidade no processo civil brasileiro, sob as perspectivas histórica e normativa, com o objetivo de examinar a regulamentação atual pelo Código de Processo Civil e o tratamento conferido pelo Anteprojeto do novo Código. Aborda aspectos conceituais e classificações da oralidade e sua evolução histórica, no Direito Romano, no Ius Commune da Idade Média e na Idade Moderna, especialmente em Portugal e no Brasil. No Brasil, examina-se a regulamentação da oralidade no Regulamento 737 e nos Códigos de Processo Civil de 1939 e 1973, para, ao fim, verificar a existência (ou não) de mudanças no projeto da nova codificação processual. Palavras-Chave: Oralidade; Direito Romano; Idade Média; Ius Commune; Código de Processo Civil. Abstract: This article deals with orality in Brazilian civil procedure, under normative and historical perspectives, in order to examine the current regulation by the Brazilian Civil Procedure Code and the treatment given by the new Code draft. It addresses conceptual aspects, and orality classifications and its historical evolution, in Roman Law, Middle Age Ius Commune and Modern Age, especially in Portugal and Brazil. In Brazil, it examines orality legal regulation, in Regulation 737, and in 1939 and 1973 Civil Procedure Code, in order to, finally, determine the existence (or not) of changes in the new Code draft. Keywords: Orality; Roman Law; Middle Age; Ius Commune; Civil Procedure Code.

11. Roman Law and the European Ius Commune

2020 ◽  
pp. 359-394
Author(s):  
Paul J. du Plessis
Keyword(s):  
Roman Empire ◽  
Western Europe ◽  
Roman Law ◽  
Modern World ◽  
Conceptual Basis ◽  
Legal Tradition ◽  
Ius Commune ◽  
The World ◽  
Common Framework ◽  
Formed Part

The term European ius commune (in its historical sense) signifies that, from the fourteenth to the start of the sixteenth centuries, most of Europe shared a common legal tradition. Many local and regional variations on the law existed, but the terminology, concepts, and structure provided by elements of Roman law provided a common framework. This chapter traces how Justinian’s codification came to influence the modern world. The influence of Roman law in the modern world is immense: it constitutes the historical and conceptual basis of many legal systems throughout the world. Its impact has not been confined to those countries in Western Europe that historically formed part of the Roman Empire. Wherever Europeans went, they normally took their law (usually based to some extent on the principles of Roman law) with them.

scholarly journals Arbitraža po uzoru na rimsko pravo u graničnom sporu između Lovrana i Mošćenica (1646.)

2020 ◽  
Vol 40 (3) ◽  
pp. 987-1006
Author(s):  
Ivan Milotić
Keyword(s):  
Point Of View ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Documents ◽  
Legal Traditions ◽  
Canonical Process ◽  
Ius Commune ◽  
Latin Language ◽  
Legal Concepts ◽  
Key Terms

The boundary dispute between Lovran and Mošćenice of 1646 quite recently received some attention in the literature and was simultaneously adequately elaborated form palaeographic and philological point of view. Despite the fact that it is substantially a legal act, its legal content did not receive adequate attention of the scholars, which may primarily be said with reference to its institutes, terms and expressions whose precision, accuracy and legal technical at first sight most evidently depart from the local feudal legal customs and legal traditions. Moreover, nevertheless that these terms and expressions were written down in Italian language of the time, they evidently represent Italianized version of terms, expression and legal concepts that originally belong to Latin language. Additionally, their mentions in the document at hand have no resemblance to the usual medieval descriptions of the legal phenomena which have a little in common with normative language or to administrativefunctional style of that time which distinctively shaped the legal documents. Because all these indications suggest that the key terms, expressions and institutes pertinent to the boundary dispute between Lovran and Mošćenice (and its resolution) might be borrowed from the Roman legal tradition (which outreached this territory by means of ius commune) and the Romano-canonical process, this paper examines origin, roles and functions which were achieved in practice by their use in this particular legal matter. The paper will specifically explore the procedural mechanism which was employed to reach settlement of the boundary dispute between Lovran and Mošćenice and will additionally provide a deeper insight into the possibility that in this particular case arbitration conceptually based on the Roman law was employed as the means of dispute resolution.

scholarly journals Recepcija rimskog prava na glagoljici

2020 ◽  
Vol 41 (2) ◽  
pp. 469-482
Author(s):  
Ivan Milotić
Keyword(s):  
Dispute Resolution ◽  
Canon Law ◽  
The Other ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Principles ◽  
Ius Commune ◽  
Roman Model ◽  
Substantive Law ◽  
Made In

The protocol of Petar Lazarić, who was simultaneously a domestic priest, prebendary and a notary of Mošćenice, dates back to 1621. It originated in Mošćenice and records in glagolithic script a resolution of a private dispute concerning the property division which was achieved in arbitration. Although the wording of the documents reveals the glagolithic script and is fully made in the Croatian language, if we go beyond that and explore the origins of the essential terms and expressions, we may reach a conclusion that the document substantially records Latin (or Italian) legal technical language which was slightly Croatised in the process of its adoption into the legal system of the commune of Mošćenice. Moreover, the content of the document puts forth legal principles, concepts and institutes of the extrajudicial dispute resolution which were consistently applied in Mošćenice following the model of arbitration in Roman law. All the essentials of the document at hand reflect the strong influences of the Roman legal tradition and the ius commune. The author provides an analysis in this paper which addresses all the relevant institutes that were applied in the arbitration dispute at hand referring to the procedural and substantive law at the same time. The author searches for the Roman model of these institutes, evaluates them from perspective of Roman and canon law of the Middle and New Ages and, finally, he brings this particular legal source in relation to the other two which originated in Mošćenice in the first half of the 17th century that both record significant influences of the Roman legal tradition of the time: The Statute of Mošćenice of 1637 and the boundary dispute between Lovran and Mošćenice of 1646.

Framing the feudal bond: a chapter in the history of the ius commune in Medieval Europe

2012 ◽  
Vol 80 (3-4) ◽  
pp. 481-495 ◽  
Author(s):  
Emanuele Conte
Keyword(s):  
Middle Ages ◽  
Legal Reasoning ◽  
Legal Culture ◽  
Roman Law ◽  
Historical Period ◽  
Abstract Concepts ◽  
Ius Commune ◽  
Medieval Europe ◽  
History Of ◽  
Definition Of

In this article I wish to show how history of legal doctrines can assist in a better understanding of the legal reasoning over a long historical period. First I will describe the nineteenth century discussion on the definition of law as a ‘science’, and some influences of the medieval idea of science on the modern definition. Then, I’ll try to delve deeper into a particular doctrinal problem of the Middle Ages: how to fit the feudal relationship between lord and vassal into the categories of Roman law. The scholastic interpretation of these categories is very original, to the point of framing a purely personal relationship among property rights. The effort made by medieval legal culture to frame the reality into the abstract concepts of law can be seen as the birth of legal dogmatics.

The benefit to Romanists of using the Basilica

2016 ◽  
Vol 84 (3-4) ◽  
pp. 423-436
Author(s):  
Hylkje de Jong
Keyword(s):  
Roman Law ◽  
Legal Literature ◽  
New Interpretation ◽  
Early Byzantine

In Roman and Byzantine legal literature there has been much debate about the payment (merces/μισθός) claimed by the mandatory in D. 17,1,26,8 (B. 14,1,26,8). The reason was the requirement of gratuitousness of mandatum, which made that this case should in principle be classified as a locatio conductio/μίσθωσις. To explain the presence of merces in Roman law literature several suggestions were made: interpolation, remuneration, the existence of two contracts or a pactum adiectum. In Byzantine law literature μισθός was interpreted as the payment for the slave. These interpretations are one way or another unsatisfactory. In (early) Byzantine law a plausible new interpretation can be found. Here the payment is interpreted as expenses incurred to make the property, i.e. slave, worth more, and such expenses (for training slaves) are ‘useful’ expenses. This interpretation is plausible and applies also for classical Roman law. It shows that the use of the Basilica is of indispensable benefit to Romanists.


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