scholarly journals Venire contra factum proprium: From a binding past to a binding future

Pravovedenie ◽  
2020 ◽  
Vol 64 (2) ◽  
pp. 270-308
Author(s):  
Translator alter
Keyword(s):  
Roman Law ◽  
Private Law ◽  
Legal Relationship ◽  
New Thinking ◽  
Functional Analog ◽  
Bona Fide ◽  
Legal Position ◽  
Venire Contra Factum Proprium ◽  
Bürgerliches Gesetzbuch ◽  
Formal Rules

Inadmissibility of controversial conduct (venire contra factum proprium) is a continental functional analog of common law estoppel. It is a special “pitfall” under the rubric for the application of the bona fide requirement when inadmissibility of conduct is derived from its controversial character in regard to previous conduct. The article exposes a lack of necessity in the prohibition under the regimes of early private law codifications of the Modern Age (France, Austria) which is why one may observe its prevalence primarily in Germany after the enactment of German Bürgerliches Gesetzbuch (Civil Code). The author thinks of its prevalence as a result of a drastic change in understanding the legal relationship induced by the restoration of corporate thinking in a renewed form as opposed to individualistic thinking associated with Roman law and the first draft of Bürgerliches Gesetzbuch. For the courts, the inadmissibility of controversial conduct became a convenient means to justify the restatement of rules formally binding for parties in cases where, as a result of the application of formal rules, the connection between the conduct of a party to a legal relationship and its negative outcome, which under said formal rules, totally fall into the other party’s burden. Due to this, the concept of a legal relationship, previously built as mere correlation of a subjective right to liability, is complicated by an element of burden — some of which would be imposed on the entitled party. This revealed the formal side of inadmissibility of controversial conduct, which made it possible to correct what shall be treated in terms of new thinking as a gap of regulation formed by individualistic thinking. In material terms, the inadmissibility of controversial conduct is limited in literature to cases when the previous conduct of a certain person has caused legitimate expectations from the counterparty and the current conduct contradicts these expectations. The author refutes this reduction since from the outset, the founding idea of the rule was to preserve the interrelation between conduct and adverse consequences lost in the formal application of the law. The contradiction of conduct, hence, shall be seen in using a formal legal position to prevent the adverse outcome of one’s own conduct. However, development of this court practice revealed another function of the rule, much more important in the author’s opinion, namely, the acceleration of civil communication governed by private law.

scholarly journals UDZIAŁ OSÓB NIEUPRAWNIONYCH W WYDANIU ORZECZENIA W POSTĘPOWANIU CYWILNYM - UWAGI NA TLE D.1,14,3 I D.41,3,44 PR.

2017 ◽  
Vol 6 (2) ◽  
pp. 97
Author(s):  
Bartosz Szolc-Nartowski
Keyword(s):  
Common Sense ◽  
Public Interest ◽  
Civil Procedure ◽  
The Other ◽  
Roman Law ◽  
Private Law ◽  
The Public ◽  
Civil Proceedings ◽  
Bona Fide ◽  
Polish Law

Participation of Unauthorised Persons in Issuance of Decisions in Civil Proceedings - Remarks on the Basis D. 1,14,3 and D. 41,3,44 pr.SummaryAccording to Polish civil procedure a sentence given by an unauthorized person is invalid. This was not always the case in ancien Roman law. Ulpianus declared that when a slave, who escaped from his master, became a praetor, his acts were valid. He took into consideration serious problems of those who had put their trust in the praetor’s office as well as the respect for humanitas. A basic common sense requires that what was well decided, should be considered valid. According to the author, Ulpianus realized that the rule of ius civile which determined the requirements for entering in a praetor’s duties had the character of a guarantee. If the purpose, for which this rule was established, was achieved, such acts should be accepted as valid.The question arises whether that approach could be applied to contemporary cases of iudex incompetens. Furthermore, whether it would be justifiable to extend this solution to other - not only procedural – but also material, guarantee rules?The answer is not easy. In D. 41,3,44 pr., a pater familias conducted the procedure of adrogation (adoption) improperly. Papinianus decided that, although pater familias made a justifiable mistake, all that the son enacted in the name of the father, was invalid. Nevertheless a different rule, as the jurist says in D. 41,3,44 pr., must be observed in the case of homo liber bona fide serviens - a person, who being unaware of his free man status, served as a slave. Actions taken by such a person were valid (the purchaser of a slave had to be protected), since transactions of that kind happened very often. More importantly, any other solution would be against the public interest. O n the other hand, it was very rare for a pater familias to wrongly adrogate, therefore the example of pater familias did not create a general rule.It seems quite difficult to indicate one principle which could be applied to all the guarantee rules. As far as the case of an unauthorized person giving sentence is concerned, the Roman private law shows that the regard for the public interest may sometimes justify solutions different from those preferred by Polish law.

scholarly journals O AKTUALNOSTI CASUUM COMMORIENTIUM U RIMSKOM I SUVREMENOM EUROPSKOM PRIVATNOM PRAVU

2021 ◽  
Vol 37 (3-4) ◽  
pp. 171-200
Author(s):  
Mirza Hebib
Keyword(s):  
Civil Law ◽  
Roman Law ◽  
Temporal Distance ◽  
Private Law ◽  
Legal Tradition ◽  
Inheritance Law ◽  
Legal Position ◽  
Basic Concepts ◽  
Over Time

In the Roman legal tradition, but also in modern civil law systems, the term commorientes (lat. commorientes) refers to persons who died in the same accident or other danger, standing in a legal position relevant to inheritance law. In connection with the resolution of such situations in the theory of private law, various legal presumptions have been developed since the period of classical Roman law. All these presumptions can be systematized within two basic concepts - the first based on the presumption of survival of subjects and the second based on the presumption of the simultaneous death of subjects. Comparatively, in the development of European private law, there has been a reception of both concepts, with the proviso that over time the concept of simultaneity will almost completely suppress the concept of survival. The paper analyzes the reasons for this. In establishing a link between Roman roots and European private law, special attention is given to the possibility of applying presumptions in cases where there is a certain spatial or temporal distance between the deaths of persons or if a different cause has led to fatal consequences. Ultimately, the paper clearly points to the importance of Roman rules, which can sometimes be fundamental in understanding the institutes of contemporary private law.

scholarly journals WPŁYW PRAWA BIZANTYJSKIEGO NA OPIEKĘ W RUSKIEJ PRAWDZIE I W I STATUCIE LITEWSKIM

2017 ◽  
Vol 1 ◽  
pp. 123 ◽  
Author(s):  
Sławomir Godek
Keyword(s):  
Roman Law ◽  
Private Law ◽  
Inheritance Law ◽  
Procedural Law ◽  
Guardianship Law ◽  
Greek Tradition ◽  
Legal Structures ◽  
Legal Position ◽  
Russian Law ◽  
The Right

The influence of Byzantine law on tutelage in the Russkaya Pravda and th e First Lithuanian StatuteThe article is dedicated to the influence that Byzantine law had on Russian law (with a particular focus on the Russkaya Pravda) and on the First Lithuanian Statute of 1529.The paper analyses the main channels of influence that Byzantine law had on the ancient Russian law. It happened primarily through intensive trading and political contacts between Kiev and the Byzantine Empire. Such contacts, without any doubt, were established as early as the first half of the 10th century. An important factor in the influence Byzantine law exerted on Russian law was constituted by treaties (known as „dogovory”) concluded between these states in the years 907, 911, 944, and 971. The influence of Byzantine law in Rus intensified especially after the Kievan princes adopted Christianity in its Greek tradition in 988. At that time, Byzantine law codes spread across Rus; an important role in their spreading was played by the so-called Kormchie Knigi, which contained the norms of church and secular law. The codes were bound to influence legal practice, especially in the field of family, guardianship and inheritance law, which traditionally lay within the jurisdiction of ecclesiastical courts. At the same time, princes significantly intensified their legislative activity. The acts of the Kievan and Novgorod princes are inspired by the solutions adopted in Greek law, and contain many references to this law. The influence also spread onto the Russkaya Pravda (Russian Justice), especially in its later version. All in all, the influence of Byzantine law in Rus was quite significant, which fostered the development of Russian law. It mostly affected private law and procedural law, but also, to a limited extent, criminal law. In the field of private law, the strongest influence of Greek law was felt in marriage, guardianship and family law.The provisions o f the Russkaya Pravda with respect to guardianship were modeled on the respective regulations of the codes of Byzantine law - the Ecloga and the Procheiron. The Russian code defined the position of the widow in a way reminiscent of Byzantine law - after the husband's death she was the  continuer of the previous family arrangement; her rights to family property (of which she could freely dispose) and relations with children were also defined in a similar manner. Similarities can also be discerned in the regulations on the remarriage of widows, in particular, the legal consequences of this act: remarriage resulted in the loss of the right of custody over children in favor of the husband’s relatives.These provisions of the Russkaya Pravda in the field of guardianship law certainly exerted some influence on the development of the legal institution of guardianship at the time when Russian lands were included into the Lithuanian state. This was reflected in privileges granted to the Lithuanian szlachta (gentry), which reiterated the principles known from the Russkaya Pravda. This, in particular, applies to the privileges that defined the legal position of a widow (privilege of 1447). The same principles also constituted the grounds of verdicts adopted by Grand Duke’s court in cases from the field of guardianship law. With the passage of time, a significant body of experience was gathered, which laid the foundations for the respective provisions of the First Lithuanian Statute. The provisions of the Statute that regulated widows’ guardianship over children (Statute I, VI, 6) show a kinship with the provisions of the Russkaya Pravda and, through it, with the Ecloga and the Procheiron.It seems, therefore, that there was a substantial flow of ideas and readymade legal structures between Byzantine law, based on the principles of the ancient Roman law, and Russian law, whose output was, in its turn, used by the Lithuanian legislature.

Quintilian and the Law

2021 ◽  
pp. 258-277
Author(s):  
Olga Tellegen-Couperus
Keyword(s):  
Criminal Law ◽  
Roman Law ◽  
Private Law ◽  
Legal Procedure ◽  
Legal Expert ◽  
The Law ◽  
Law Of Succession ◽  
The Relationship

How did Quintilian regard the relationship between rhetoric and law? It is only in the last book of his Institutio oratoria that Quintilian deals with this question. In 12.3 he states that the well-educated orator must have a broad knowledge of the law so that he will not be dependent on information from a legal expert. In the course of the book, Quintilian shows that he himself was well acquainted with Roman law for he often explains rhetorical technique by giving legal examples, and these examples deal with a wide variety of topics and refer to a wide variety of sources. The topics include criminal law and private law, particularly the law of succession, and legal procedure. The sources range from speeches by Cicero to fictitious laws and cases. Quintilian regarded rhetoric as superior to law but he will have agreed with Cicero that rhetoric and law were partners in dignity.

scholarly journals Gabór Hamza, Origine e sviluppo degli ordinamenti giusprivatistici moderni in base alla tradizione del diritto romano (Santiago de Compostela: Andavira Editora, 2013)

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Ádám Boóc
Keyword(s):  
Hungarian Academy ◽  
Roman Law ◽  
Full Professor ◽  
Private Law ◽  
Santiago De Compostela ◽  
Italian Language ◽  
Language Studies ◽  
Law Faculty ◽  
Ordinary Member ◽  
Academy Of Sciences

The new opus of Gábor Hamza, ordinary Member of the Hungarian Academy of Sciences and Full Professor of Roman Law (Faculty of Law of the Eötvös Loránd University [Budapest]), which was published in the fall of 2013 in Italian language, studies the formation and development of modern private law systems based on the tradition of Roman Law.

5. The Roman Family

2020 ◽  
pp. 113-150
Author(s):  
Paul J. du Plessis
Keyword(s):  
Roman Law ◽  
Private Law ◽  
Family Unit ◽  
Legal Studies ◽  
Marriage And Divorce ◽  
Legal Personhood ◽  
The Family ◽  
Male Line ◽  
State Of Affairs

This chapter is devoted to the Roman law of persons and family. As in modern legal studies, so in Roman law, it is the first branch of private law that students are taught, primarily in order to understand the concept of ‘legal personhood’. This chapter covers the paterfamilias (head of the household); marriage and divorce; adoption; and guardianship. The head of the household was the eldest living male ancestor of a specific family. He had in his power (potestas) all descendants traced through the male line (and also exercised forms of control over other members of the household). Roman law accorded the head of the household extensive legal entitlements, not only vis-à-vis the members of the household, but also its property. The motivation of this state of affairs lies in the recognition in Roman law of the family unit as legally significant entity.

1. Introduction: Rome—A Historical Sketch

2020 ◽  
pp. 1-24
Author(s):  
Paul J. du Plessis
Keyword(s):  
Eighth Century ◽  
Archaic Period ◽  
Sixth Century ◽  
Roman Law ◽  
Classical Period ◽  
Private Law ◽  
Roman Society ◽  
History Of ◽  
Historical Sketch

This chapter provides a historical sketch of Rome. It has been written to provide a contextual basis for the study of Roman private law. The history of Rome is traditionally divided into three main periods based on the dominant constitutional structure in Roman society during these three periods. These are the Monarchy (eighth century bc–510 bc), Republic (509–27 bc), and Empire (27 bc–ad 565). Scholars of Roman law tend to refine this division even further. Thus, to the scholar of Roman law, the period from the founding of Rome in the eighth century bc–c. 250 bc is regarded as the ‘archaic’ period of Roman law. The period thereafter, from c. 250 bc–27 bc, is generally described as the ‘pre-classical period’ of Roman law.For scholars of Roman law, the ‘classical’ period, c. first three centuries AD, and the Justinianic period, c. sixth century AD, are the most important, owing to the compilation of ‘classical’ Roman law by order the Byzantine Emperor, Justinian, in the sixth century.

Historic analogs of civil confiscation of unexplained wealth – the case of Bulgaria

2020 ◽  
Vol 27 (2) ◽  
pp. 561-571
Author(s):  
Todor Kolarov
Keyword(s):  
Theoretical Basis ◽  
Design Methodology ◽  
Roman Law ◽  
Private Law ◽  
Public And Private ◽  
Content Type ◽  
Civil Proceedings ◽  
Unjustified Enrichment ◽  
The Right

Purpose Using Bulgarian legislation on civil confiscation and analysing the nature of the substantive authority to confiscate unexplained wealth, as well as evaluating research in common and continental law, this paper aims to seek historic parallels for non-punitive civil confiscation of unexplained wealth. Design/methodology/approach The design of this paper is centred on determining whether the substantive authority of the state to confiscate unexplained wealth has a Roman law equivalent. Conducting a review of key elements of the substantive authority for the action in Bulgaria, the research examines the validity of the hypothesis that the right to confiscate has a Roman law equivalent. Findings The research supports the position that the substantive authority to seek civil confiscation relief in Bulgaria has its origin in the overarching principle of unjustified enrichment in Roman law. Considering needed adjustments related to the developed demarcation between public and private law in contemporary law, the action to confiscate unexplained wealth in civil proceedings in the case study jurisdiction has its equivalent in the Roman condictio furtiva. Originality/value This paper sheds light on the theoretical basis for civil asset confiscation of unexplained wealth in one continental law jurisdiction, thus contributing to the on-going debate on the compatibility of civil confiscation of unexplained wealth with the continental law tradition.

Obligatio in Roman Law and Society

2016 ◽  
Author(s):  
David Ibbetson
Keyword(s):  
The Other ◽  
Law And Society ◽  
Roman Law ◽  
Legal Relationship ◽  
Abstract Nouns ◽  
Legal Thinking ◽  
The Relationship ◽  
Legal Consequences

Obligatio is defined in Justinian’s Institutes as a tie of law, a legal relationship between two persons whereby one is constrained by the other to do or refrain from doing something. It brings together relationships arising out of contract or delict, though the Digest shows it used more generally wherever a personal bond was created. Its roots lie in the verb ligare, to bind; but although Roman lawyers preferred the use of verbs over abstract nouns, here the noun form is almost as common as the verb. As a noun obligatio describes either the active or the passive aspect of the relationship or the relationship itself, allowing flexibility in legal thinking. Originally, obligatio may have been related to actio, so that only enforceable relationships were included within the word, but by classical law it applied to any relationship with legal consequences, whether or not the relationship was enforceable.

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