scholarly journals ‘PERICULUM VERBUM GENERALE EST’: RISK ALLOCATION IN THE COMMENTARIES OF JACQUES CUJAS

2021 ◽  
Vol 21 (4) ◽  
pp. 293-331
Author(s):  
Stanisław Kordasiewicz
Keyword(s):  
Roman Law ◽  
16Th Century ◽  
Risk Allocation ◽  
Future Change ◽  
First Case ◽  
Force Majeure ◽  
Legal Principle ◽  
Legal Consequences ◽  
The Way

Jacques Cujas was a French humanist and one of the most distinguished 16th-century legal experts. This paper analyses the rules governing liability and the meaning of periculum (risk) in his commentaries to Roman law. My study is focused on two examples which offer surprising interpretations of risk. The first case concerns a person who lost an object given for valuation. Here Cujas uses the term periculum in two different meanings. The first is general and covers all types of irresistible events. The second is limited to only one type of event – theft. This distinction is fundamental for the evaluation of the legal consequences arising from the loss of the object. Te inspector would have had to bear the risk of theft (periculum furti), but not other risks, especially not those related to force majeure. The second case I discuss deals with the complexities of risk allocation in the contract of sale. In one of his earlier commentaries, Cujas accepted the Roman legal principle of periculum emptoris – that the risk of the loss of the object sold should be on the buyer. At the same time, in his discussion of particular cases Cujas was flexible in allocating various risks to either of the parties, thus paving the way for his future change of mind on periculum venditoris.

scholarly journals La “defensa” aristotélica de la esclavitud de los indios americanos: a propósito del dominium e imperium en la lectura de Juan Ginés de Sepúlveda

Nova Tellus ◽  
2020 ◽  
Vol 38 (2) ◽  
pp. 135-159
Author(s):  
Genaro Valencia Constantino
Keyword(s):  
Social Context ◽  
19Th Century ◽  
Roman Law ◽  
16Th Century ◽  
Latin Translation ◽  
The Political ◽  
Key Concepts ◽  
Juan Gines De Sepulveda ◽  
Political Question ◽  
The Way

The so-called Aristotelian defense of enslaving the americans, which Juan Ginés de Sepúlveda supposedly yielded in the 16th century, is, as I shall try to prove along this paper, a misunderstanding produced by careless and simplistic interpretations which do not consider the Sepulveda’s approach to Aristotle’s Politics, the Latin translation he published, the political and social context on Hispanic Monarchy during that century and some key concepts of Roman Law. Besides, the preconception, created by Menéndez Pelayo, maybe unintentionally, by translating a part of the title of the treatise Democrates alter, sive de iustis belli causis apud Indos, by “against the indians”, printed a serious brand on Sepúlveda like a slavery defender since 19th century. With this text, I want to show the reading and interpretation Sepúlveda made about Aristotelian work in the light of textual and contextual conditionings, which make clear the way the spaniard humanist deals with the philosophical and political question of indigenous conquest.

scholarly journals Interfering Busybody or Public-Minded Citizen? The Actio Popularis as a Model for Reform of the Rules of Standing in Constitutional Cases in Australia

2018 ◽  
Vol 11 (1) ◽  
pp. 62
Author(s):  
Bede Xavier Harris ◽  
Elizabeth Pearl Harris
Keyword(s):  
John Rawls ◽  
Current Approach ◽  
Roman Law ◽  
Legal Action ◽  
Personal Interest ◽  
Theory Of Justice ◽  
Political Interests ◽  
Taking Action ◽  
The Ideal ◽  
The Way

The interpretation given by the courts to the word ‘matter’ in sections 75 and 76 of the Commonwealth of Australia Constitution, and the restrictive approach taken by the courts to what amounts to a sufficient interest in a matter, have led to the consequence that only litigants who can demonstrate a personal interest can bring an action to challenge a breach of the Constitution. This provides insufficient protection for constitutionalism because it means that the enforcement of the Constitution is contingent on there being a self-interested applicant who will bring an action – and, conversely, creates the risk that breaches of the Constitution will be allowed to stand in cases where those who do have standing find it in their political interests to refrain from taking action. With its focus on personal interest, the current approach excludes the altruistic applicant and runs counter to the theory that all citizens have a right to ensure that the Constitution is complied with. This paper examines the way in which the actio popularis of Roman law served the ideal of the engaged citizen by enabling citizens to initiate legal action to enforce public duties, and how modern equivalents of the actio in a number of jurisdictions achieve the same purpose. The paper draws on John Rawls’ theory of justice in arguing for reform of the law on standing in Australia so as to confer open standing in constitutional cases.

scholarly journals Początki kształtowania się reprezentacji społecznej zapożyczeń w sferze publicznej

2019 ◽  
Vol 27 ◽  
pp. 29-41
Author(s):  
Piotr Zbróg
Keyword(s):  
Public Sphere ◽  
Common Sense ◽  
Initial Phase ◽  
Native Language ◽  
Social Representations ◽  
16Th Century ◽  
The Public ◽  
Methodological Basis ◽  
The Public Sphere ◽  
The Way

The beginnings of the shaping of social representations of borrowings in the public sphereThe article presents an initial phase of the process of shaping of social representations of borrowings. The aim was to obtain a view of the way in which participants of the public sphere talked about these elements of language, how they perceived them as well as what common sense image was created on this basis in the communication sphere and how it was modified. The first judgements and opinions on the matter of foreign words appeared around the 16th century and evolved from that moment. The theory of social representations developed by Serge Moscovici was applied as a theoretical and methodological basis of the description. Its research tools allow us to see the way in which societies construct meanings of matters important to them. On the basis of the analysis of the material it was established that from the beginning there were rather antagonistic elements of social representations of borrowings. The functionality of borrowings was noticed. Yet it was postulated that they should be eliminated from texts on account of the necessity to develop the native language, the incomprehensibility of statements as well as the excessive trend of foreignness.

scholarly journals DORĘCZENIA PISM PROCESOWYCH (UWAGI NA MARGINESIE CTH. 2,4,1 [A. 318/319] = C. 5,4,20)

2016 ◽  
Vol 14 (2) ◽  
pp. 149
Author(s):  
Jacek Wiewiorowski
Keyword(s):  
Social Sciences ◽  
Natural Sciences ◽  
Controversial Issue ◽  
Basic Data ◽  
Roman Law ◽  
European Law ◽  
The Status ◽  
History Of ◽  
Universal Nature ◽  
The Way

THE NATURAL SCIENCES IN THE SERVICE OF PLEADINGS IN CASES INVOLVING MINORS: REMARKS ON CTH 2.4.1 [A. 318/319] = C. 5.4.20)SummaryThe subject of this article is the status of juvenile persons in Roman law, as exemplified by one of the constitutions of Constantine the Great, CTh 2.4.1 [a. 318/319] = C. 5.40.2, fragments of which are preserved in Theodosius’ Code of 438, and in an abridged version in Justinian’s Code of 534. In the first part of the article the author analyses the extremely controversial issue of the identity of the constitution’s addressee. In the second part he discusses the content of this constitution and the premises for its issue in the light of the Constantinian legislation on family matters and the way it was later interpreted. The article’s third part is an attempt to apply the natural and social sciences to the question of minors and their personality, and the examination of this issue as regards CTh 2.4.1 [a. 318/319] = C. 5.40.2. The author takes into consideration the basic data on the status of minors in Roman law, in the subsequent history of European law, and in non-European cultures. He concludes by making a series of observations on the potential for the application of the natural sciences in the study of Roman law, which could serve to confirm the timeless and universal nature of some of the solutions it prescribed.

scholarly journals Rudarski propisi klasičnog i postklasičnog rimskog prava / Mining regulations of classical and postclassical Roman law

2018 ◽  
pp. 407-426
Author(s):  
Dževad Drino ◽  
Benjamina Londrc
Keyword(s):  
Mining Waste ◽  
Roman Law ◽  
Ancient Rome ◽  
Mining Law ◽  
Mining Laws ◽  
Roman Mining ◽  
The Way

In order to understand the functioning of mining in ancient Rome, it is necessary to investigate the rules of classical and post-classical Roman law related to mines. Most of the mining information is extracted from the Lex Vipasca, the two bronze plates found in Aljustrelo in Portugal in 1876 and 1906. The first plate from Aljustrelo provided valuable information on the mining sale taxes, the auctioneer’s provision, the management of baths, shoemakers, barbers, metallurgy workers, mining waste tax, teachers and seizure of mines and receivables. The second plate from  Aljustrelo defines the responsibilities of the procurator, the rights and obligations of the owner, the price of the mine, and tells us about the way of organizing the leaseholders in societies – societas. From the preserved provision of Codex Theodosianus  (CTh.X.19.8.) we learn about the existence of specially separated rights related to  the mining and exploitation rights. The aim of our work is, through analysis of the  Aljustrelo plates, to show how far Roman law has defined all aspects of mining in  detail and to show the functioning of the system starting from the formation, acquisition of property, business, control, disputes, and associated activities that were  formed with mines. These two plates with Roman mining laws provide an inexhaustible study-basis for lawyers, as well as others dealing with Ancient Rome. In  addition to the mentioned Lex Vipasca, some minor and later mining regulations  have been briefly outlined to complement the picture of Roman mining law.

scholarly journals Inadmissible Refusals in the Russian Civil Law

2019 ◽  
pp. 102-110
Author(s):  
A. A. Suslov
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Russian Science ◽  
Freedom Of Contract ◽  
Legal Consequences ◽  
Court Practice ◽  
The Way ◽  
Modern Russian

The paper provides systematization of inadmissible refusals in civil law enshrined in civil legislation and clarification of court practice. The author analyzes the reasons for fixing the inadmissibility of refusal through civil law cases, which include situations of protection of the weaker party in civil law relations. A specific characteristic of inadmissible refusals according to the way of their expression is proposed: with the presence or absence of legal consequences of inadmissible refusals. The “doctrine of the nullity of refusal” prevailing in modern Russian science and court practice is criticized as contradicting the fundamental principles of civil law (in particular, the principles of freedom of contract, inadmissibility of arbitrary interference in private affairs, etc.) and generally acceptable type of legal regulation peculiar to civil law. Some ways to overcome it are proposed. It is concluded that the resolution of the issue of recognizing a refusal as valid or invalid should be based on the correct qualification of the relevant norms, which fix certain legal opportunities for participants in civil law relations as imperative or dispositive.

scholarly journals Néhány megjegyzés Heltai imádságos könyvének utóéletéről

2013 ◽  
Vol 52 (3-4) ◽  
Author(s):  
Mihály Balázs
Keyword(s):  
Early Modern ◽  
Comparative Research ◽  
18Th Century ◽  
16Th Century ◽  
Prayer Book ◽  
Late 18Th Century ◽  
History Of ◽  
Considerable Length ◽  
The Way

Although in recent years there has been an upsurge in the research of the history of early modern spirituality, this research has paid hardly any attention to the Unitarian denomination. The reasons for this lie beyond the scope of the present study: between the late 16th century and the late 18th century the denomination had to refrain from the use of printing, and thus, the manuscript versions of prayer texts were threatened by loss and destruction. It is a unique paradox, however, that the first edited protestant Hungarian prayer book of considerable length was published precisely by this denomination in 1570/1571. The first part of the paper explores the concept of the prayer book based on Johann Habermann’s famous Gebetbüchlein, and compares it to the greatest achievements of the same sort within this period, the Catholic Péter Pázmány’s and the Calvinist Albert Szenci Molnár’s works. This section is followed by a survey of the vivid reception of Heltai’s work, with particular focus on the way the Unitarian author’s work was used in the Lutheran community of Lőcse. The concluding part argues that building on the foundations of this tradition, as well as on the heritage of Calvinist prayer culture, an unparalleled Unitarian prayer literature developed in the 17th-18th centuries, which deserves the attention of comparative research.

12. Discharge by frustration: subsequent impossibility

2021 ◽  
pp. 467-492
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
Legal Basis ◽  
Breach Of Contract ◽  
General Terms ◽  
Force Majeure ◽  
Common Purpose ◽  
Legal Position ◽  
The Common ◽  
The Law ◽  
Legal Consequences

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. In general terms non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.

Evidence and Child Sexual Abuse - Obfuscation or illumination?

1993 ◽  
Vol 18 (3) ◽  
pp. 16-19
Author(s):  
Frank Bates
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Expert Evidence ◽  
Legal Principle ◽  
Fact Finding ◽  
The Way

In an earlier article in this journal (Bates, 1992), I suggested that, ‘Legislation and traditional legal principle seems to have been used to obfuscate, rather than enhance, the fact finding process.’ The cases discussed in that article (Minister of Community Welfare v B.Y. and L.F. (1988) F.L.C. 91-973; In the Marriage of Y and F (1990) F.L.C. 92-141; In the Marriage of D and B (1991) F.L.C. 92-226) documented that administrative processes were far from satisfactory in the way in which they dealt with allegations of child sexual abuse and so, perhaps, was the way in which the courts viewed expert evidence. Unfortunately, the process does seem to be continuing and must, therefore, be appropriately documented.

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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