scholarly journals Wishful Thinking; the Role and Development of Good Faith in the Roman Law of Contracts

2021 ◽  
Vol 51 (3) ◽  
pp. 19-36
Author(s):  
Philip Thomas
Keyword(s):  
Legal History ◽  
Good Faith ◽  
Wishful Thinking ◽  
Roman Law ◽  
Historical Narratives ◽  
Historical Interpretation

The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and the legal historian and romanist Hoetink, which have become common wisdom in time. However, application of new insights into historical narratives has often been hesitant because of the “anything goes” mentality. This paper approaches one of Roman law’s holy cows, namely the role and development of good faith in the Roman law of contracts and questions whether a move from historical interpretation to legal history may provide another narrative.

Academic Feud, Bloodfeud, and William Welwood: Legal Education in St Andrews, 1560–1611-Part I

1998 ◽  
Vol 2 (2) ◽  
pp. 158-179 ◽  
Author(s):  
John W Cairns
Keyword(s):  
Seventeenth Century ◽  
Sixteenth Century ◽  
Legal History ◽  
Legal Education ◽  
Civil Law ◽  
Legal Culture ◽  
Roman Law ◽  
Joint Meeting ◽  
Academic Education

This article, in earlier versions presented as a paper to the Edinburgh Roman Law Group on 10 December 1993 and to the joint meeting of the London Roman Law Group and London Legal History Seminar on 7 February 1997, addresses the puzzle of the end of law teaching in the Scottish universities at the start of the seventeenth century at the very time when there was strong pressure for the advocates of the Scots bar to have an academic education in Civil Law. It demonstrates that the answer is to be found in the life of William Welwood, the last Professor of Law in St Andrews, while making some general points about bloodfeud in Scotland, the legal culture of the sixteenth century, and the implications of this for Scottish legal history. It is in two parts, the second of which will appear in the next issue of the Edinburgh Law Review.

Die Bedeutung des antiken jüdischen Rechts für das römische Recht und die antike Rechtsgeschichte am Beispiel der rabbinischen Rezeption und Modifikation der griechisch-hellenistischen diathēkē als dîjathîqî und der donatio mortis causa

2020 ◽  
Vol 137 (1) ◽  
pp. 39-69
Author(s):  
Matthias Armgardt
Keyword(s):  
Legal History ◽  
Close Relation ◽  
Roman Law ◽  
Jewish Law ◽  
In Memoriam

AbstractReuven Yaron (1924–2014) in memoriamThe importance of Ancient Jewish Law for Roman Law and Ancient Legal History – the example of the Rabbinic reception and modification of the Greco-Hellenistic diathēkē as dîjathîqî and the donatio mortis causa. This paper aims to show that ancient Jewish law is of greatest importance for interpreting Roman law and understanding ancient legal history. After exemplifying the close relation of the Pentateuch and the cuneiform law, we focus on the reception and modification of the Greco-Hellenistic diathēkē (testament), which came into Jewish law during tannaitic times as dîjathîqî and was reinterpreted by the rabbis as donation. Finally, we compare the rabbinic dîjathîqî and the Roman donatio mortis causa.

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.

Observation of Good Faith Principle in Contract Negotiations: A Comparative Study with Emphasis on International Instruments

2013 ◽  
Vol 03 (09) ◽  
pp. 56-61
Author(s):  
Ebrahim Shoarian Sattari
Keyword(s):  
Islamic Law ◽  
German Law ◽  
Good Faith ◽  
Roman Law ◽  
Fair Dealing ◽  
Contract Negotiations ◽  
Law System ◽  
American Law ◽  
Special Stand ◽  
International Instruments

Good Faith is one of the important principles in contract law. This principle is inherited from Roman law and it has been mostly developed in civil law system. Observation of Good faith and Fair dealing in French and German law and many other countries is considered as legal obligation. Good faith, also, is of special stand In Chinese law of contract. Since Good faith is considered as important and valuable, it has been recognized in Common Law System and adopted in English and American law. Islamic law also contains numerous examples of obligations that are based on Good Faith principle. Nowadays, good faith principle has been incorporated in important international instruments such as CISG, UPICC, PECL, and DCFR and its scope has been developed. If good faith principle was being considered in fulfilling of contracts, today it also is considered as important in pre-contractual and conclusion stages of contracts. The aforementioned documents contain regulations for observing good faith in preliminary negotiations, conclusion of contract, fulfilling of contract and the interpretation thereto. The present Article is attempted to show that Good faith is important in all stages including preliminary negotiation and it should be incorporated in domestic legislations. Remedy for breach of this duty in the pre-contractual sphere should be limited only to compensation for damages.

Roman Law

2018 ◽  
Author(s):  
Clifford Ando
Keyword(s):  
International Law ◽  
Late Antiquity ◽  
Legal History ◽  
Public Law ◽  
Roman Law ◽  
Classical Period ◽  
National Context ◽  
Historical Factors ◽  
Medieval Europe ◽  
Contemporary Study

Roman law has been a system of practice and field of academic study for some 2,400 years. Today, the field enjoys unprecedented diversity in terms of linguistic, disciplinary, and national context. However, the contours of contemporary study are the product of complex and imbricated historical factors: the non-codification by the Romans of the classical period of their own public law; solutions taken in the classical period and later to resolve conflicts among sources of law of very different antiquity; the codification in late antiquity of academic jurisprudence regarding private law; the on-going prestige of Roman civil law in medieval and late medieval Europe, which made it a resource for analogical argumentation in both public and international law; and much else besides. This chapter evaluates the contribution made by some of these factors to Roman legal history as a contemporary endeavour, with an eye to its future.

Tracing Legal History In Continental Civil Law

2018 ◽  
Author(s):  
Heikki Pihlajamäki
Keyword(s):  
Legal History ◽  
Global Politics ◽  
Roman Law ◽  
Historical Science ◽  
Legal Scholarship ◽  
Historical School ◽  
Introductory Note ◽  
Recent Trends ◽  
Post War

This chapter begins with a brief introductory note on the role of legal history in ancient Roman law, and the legal scholarship of medieval glossators and commentators. It then turns to the dominant schools of continental legal scholarship in the seventeenth and eighteenth centuries, the ‘Neo-Bartolists’ and the usus modernus pandectarum. It considers the rise of the Historical School in Germany and the corresponding movements elsewhere in continental Europe. Methodologically, the representatives of the Historical School were the first professional legal historians in the modern sense of the term. Finally, the chapter retells the story of the rise of European legal history in the post-war period, and the recent trends towards a creation of global legal histories. It shows that legal history’s turns have in many ways followed from not only legal scholarship in general, but also from developments in historical science and global politics.

About benefits and harms of rewriting history. One of the topics of contemporary historical discourses: philosophical analysis

2021 ◽  
Vol - (2) ◽  
pp. 142-164
Author(s):  
Roman Zimovets
Keyword(s):  
Collective Identity ◽  
Identity Transformation ◽  
Historical Narratives ◽  
Necessary Condition ◽  
Historical Experience ◽  
Historical Interpretation ◽  
The Past ◽  
Rewriting History ◽  
Historical Discourses ◽  
Global Communications

When we talk about historical revisionism, negative connotations as a rule are prevailing. Prohibition of revision of certain historical interpretation and assessment is one of the tasks of historical policy which is carried out by adopting so-called «memorial laws». Taking care of the formation of the desired representations of the past (narratives) is directly related to the interests of institutionalized power in its own stabilization and strengthening. Power is a function of the community, whose identity is formed historically. Consolidation of collective identity through the support and reproduction of common representations of the past is one of the tools to strengthen power. At the same time, the very nature of human experience acquisition which is permanent mediation of the horizon of the past and the present, presuppose a reinterpretation of this past. Major shifts in the experience of generations, which occur as a result of certain social changes, lead to a new look at the past of the community. In this sense, rethinking and rewriting history becomes necessary to clarify, update, rationalize the collective identity, which is problematized by new experience. Historical policy can both respond to this need for identity transformation through re- thinking representations of one’s own past and come into conflict with it. In the latter case, the narratives transferring by institutional power begin to conflict with the communicative memory of the generation experiencing a shift. One of the tools of self-preservation of power in this situation is blocking of living historical experience, which can take various forms. The culmination of such a blockade is «hermetization» of historical time that take place in totalitarian state. The living historicity of experience, which requires a constant rethinking of one’s own historically inherited identity, is replaced by an artificial, time-frozen identity, which, precisely because of this nature, becomes fragile and doomed to destruction. On the other hand, the rewriting of history initiated by the authorities within the framework of historical policy may face resistance to the representations of the past rooted in the communicative and cultural memory. The resistance of historical narratives indicates that the collective memory and the identity founded in it are not only a power construct, but also a spontaneous layering of sediments of historical experience. In today’s world of global communications and unified everyday practices, historical narratives are beginning to play an increasing role, as they remain the only seat of identity. At the same time, this process reinforces the conflict potential of communities, which can be observed in many examples of the revival of historically motivated political ambitions. In this situation, a critical clarification of various interpretations of the past becomes a means of rationalizing the historically inherited identity of communities as a necessary condition for intercultural dialogue.

Custom in Late Medieval France

2021 ◽  
pp. 29-63
Author(s):  
Marie Seong-Hak Kim
Keyword(s):  
Legal History ◽  
Political Power ◽  
Common Law ◽  
Roman Law ◽  
Legal Tradition ◽  
National History ◽  
Late Medieval ◽  
Dynamic Movement ◽  
Medieval France ◽  
The Relationship

The idea of the dynamic movement of law—diffusion of legal institutions, rules, and culture—is deeply embedded in European legal history since antiquity. All the while, a potent spirit of local custom has sustained national history, forming an equally integral part of Europe’s legal tradition. This chapter examines the sources of law in late medieval France and the doctrine of custom. It also discusses the growth of royal justice and the relationship between private law and political power. An overview of major historiographical debates concerning the theory and nature of custom sheds light on the question as to whether the notion of common law (droit commun) emerged autonomously in France or only after custom was written down on the model of Roman law as jus commune.

Roman Law as Part of Ancient Civilization: Reflections on Leopold Wenger's Last Work

Traditio ◽  
1955 ◽  
Vol 11 ◽  
pp. 381-394
Author(s):  
Hans Julius Wolff
Keyword(s):  
Roman Empire ◽  
Legal History ◽  
Mediterranean Area ◽  
Legal Order ◽  
Roman Law ◽  
Private Institutions ◽  
Historical Process ◽  
Ancient Civilization ◽  
History Of ◽  
The University

The monumental volume with which we are dealing is the legacy left to his science by a man who will always be counted among the most distinguished and most influential scholars of Roman law and ancient legal history in the first half of the twentieth century. As early as 1902, when he first began to teach Roman law at the University of Graz, Leopold Wenger had conceived a plan of writing a history of the whole legal order of the Romans that would comprise the total of public, procedural, and private institutions in one great unit. He proposed to see his unit in the light of its general political and cultural setting and to interpret it as bringing to its climax and final achievement, under Justinian, the evolution of law and legal thought of all antiquity; antiquity itself he understood as one single historical process interrelating the multitude of peoples and civilizations of the Mediterranean area that grew and declined, succeeded and influenced each other, until they were absorbed into the Roman Empire and were thus enabled to transmit their common heritage to later centuries. Understandably enough, this gigantic project involved more than one scholar could accomplish in one lifetime. Wenger was not able to carry it out. He did, however, succeed in completing, in this detailed description and discussion of the sources, the first instalment, and happily lived to see its publication shortly before his death on September 21, 1953, at the age of seventy-nine.

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