scholarly journals The foundations of creditor's liability in gratuitous contracts in Croatian medieval law

2020 ◽  
Vol 59 (89) ◽  
pp. 205-226
Author(s):  
Višnja Lachner ◽  
Jelena Kasap
Keyword(s):  
Roman Law ◽  
Legal Systems ◽  
Historical Sources ◽  
Legal Norms ◽  
Ius Commune ◽  
Legal Position ◽  
Medieval Law ◽  
Contractual Obligations ◽  
The One ◽  
Legal Grounds

Gratuitous contracts (bailments) are the most common legal affairs in everyday legal transactions. On the one hand, their informal nature that distinguishes them from other legal affairs facilitates their application; on the other hand, it complicates the legal position of the contracting parties in case of breach of contractual obligations. Liability for breach of contractual obligation equally affects both contracting parties: the creditor and the debtor. In accordance with the principle of utility, the debtor is a contracting party that benefits most from the conclusion of a gratuitous contract. However, the discussions about the creditor's obligations and the liability criteria have been quite rare ever since the development of the earliest legal systems. This is not surprising given the fact that the gratuitous contracts are, almost as a rule, concluded between friends and acquaintances, and marked by the trust of the contracting parties. The foundations of the privileged liability of creditors, both in Western European legal systems and in Croatian law, are based on Roman law principles, which have been entered into the modern law of obligations through reception of the ius commune legal norms. As the issue of creditors' liability in gratuitous contracts has not been sufficiently examined in the Croatian scientific literature, this research is aimed at exploring and establishing the legal grounds of liability of the lender (creditor), the depositor, and the donor in Croatian law, by analyzing and comparing the available historical sources of Croatian medieval law. In that context, the authors will also discuss in more detail the reasons for enacting the unique legal solutions contained in the Croatian Obligations Act.

Mandatory Family Protection in the Civilian Tradition

2020 ◽  
pp. 648-706
Author(s):  
Reinhard Zimmermann
Keyword(s):  
Eighteenth Century ◽  
Eastern Europe ◽  
Central And Eastern Europe ◽  
The Other ◽  
Comparative Perspective ◽  
Roman Law ◽  
Legal Systems ◽  
Modern Times ◽  
Ius Commune ◽  
Code Civil

The chapter traces the development of mandatory family protection from Roman law through the ius commune to the modern civilian codifications. The Justinianic reform of 542 AD having failed to streamline and simplify the rules of classical Roman law, it was left to the draftsmen of the codifications from the end of the eighteenth century onwards to tackle that task. Particularly influential were the French Code civil of 1804 and the Austrian Civil Code of 1811. Germany adopted the Austrian model of a ‘compulsory portion’ (ie a personal claim for the value of a part of the estate). Elsewhere the French model of ‘forced heirship’ (part of the testator’s property is reserved to his closest relatives) was extremely influential, although in modern times some of the Romanistic countries have changed from forced heirship to compulsory portion. The chapter also considers the post-socialist countries of Central and Eastern Europe, the Nordic countries, and the codifications in the Americas. A number of lines of development can be traced in comparative perspective, among them a tendency to weaken the position of the deceased’s closest family members (by granting them merely a personal claim in money rather than the position of co-heirs, by reducing the quotas to which they are entitled, and by drawing the range of the deceased’s relatives entitled to mandatory protection more narrowly). The surviving spouse’s position, on the other hand, has been strengthened. Characteristic for a number of civilian legal systems is the endeavour in various ways to render to law of mandatory family protection more flexible. The implementation of the concept of a needs-based claim for maintenance is one of the devices attesting to the quest for increased flexibility.

Charitable Giving in English and Roman Law

1979 ◽  
Vol 38 (1) ◽  
pp. 118-147 ◽  
Author(s):  
C. E. F. Rickett
Keyword(s):  
Charitable Giving ◽  
Roman Law ◽  
Legal Person ◽  
Legal Systems ◽  
The Real ◽  
Legal Position ◽  
English Law ◽  
The Church

Robert Feenstra has argued that, although the conception of the trust—so prominent in English law—is generally unknown in civilian legal systems, one of the major areas in which the trust is used in English law, the dedication of property for public or chari-table purposes, is amply covered in the civilian systems by the concept of the foundation. There are, he says, two foundation concepts, both of which have their origins in post-classical Roman law. As for classical Roman law, he concludes that “the classical Roman jurists did not pay much attention to these foundations,” and that any discussion in the important classical Digest texts is found within the confines of legacy and fideicommissum.The First concept is that of the “real” or “proper” foundation. The “real” foundation is a legal person, and the main point is the existence of an aggregate of assests devoted to a paticular purpose and provided with an organisation of administrators to give effect to this purpose … The property which has been set aside belong neither to the administrators nor to the persons who benefit from the foundation: it belongs to the foundation itself, seen as an artificial, a juristic person.There are strong indications, Feenstra suggests, of an historical beginning of this real foundation concept in later Roman law, both in the legal position of the Church after Constantine, where texts speak of property belonging to an ecclesia or a monasterium and in the existence of venerabiles domus, where the “houses” are identified as holding property.

scholarly journals The Class-Based Approach to Roman Criminal Law

2021 ◽  
Vol 30 (1) ◽  
pp. 35
Author(s):  
Bożena Czech-Jezierska
Keyword(s):  
Criminal Law ◽  
Historical Materialism ◽  
Class Struggle ◽  
Roman Law ◽  
Ancient Rome ◽  
Primary Interest ◽  
Legal Norms ◽  
Roman Society ◽  
Legal Position ◽  
Class Divisions

<p>The theory of class struggle lay at the root of Marxist methodology. According to historical materialism, the slave formation existed in the ancient Roman state, and Marxist historians further developed the concept of class divisions in Roman society. Their views on this subject permeated also the research on Roman law, which was to be studied in terms of the influence that class divisions and class struggles had on the evolution of the state and legal norms in ancient Rome. This approach mainly concerned Roman private law, which was of the primary interest to scholars. The author attempts to determine whether the issue of class also constituted a reference point for studying the criminal law of ancient Rome, which had the character of public norms. The article examines the most representative views of Roman law scholars who applied the Marxist method in their research. Despite their attempts, they found it hard to uphold the concept that ancient Roman society had been divided into antagonistic and structurally homogeneous classes, and what is more, that these classes had been united by class consciousness. Differences between social strata in their legal position, including different criminal law norms, did not result from class divisions and class struggle, but rather reflected the specific character of ancient Roman society.</p>

scholarly journals CHRISTIANITY AND HUMAN RIGHTS: PAST CONTRIBUTIONS AND FUTURE CHALLENGES

2015 ◽  
Vol 30 (3) ◽  
pp. 353-385 ◽  
Author(s):  
John Witte ◽  
Justin J. Latterell
Keyword(s):  
Human Rights ◽  
Canon Law ◽  
Roman Law ◽  
Historical Sources ◽  
Legal Norms ◽  
Public Debates ◽  
Future Challenges ◽  
Historical Accounts ◽  
Subjective Rights ◽  
Key Questions

AbstractThis article analyzes the historical sources and forms of human rights in Western legal and Christian traditions, and it identifies key questions about the intersections of Christianity and human rights in modern contexts. The authors identify nine distinctions between different conceptions of rights correlating with at least four types of jural relationships, and they argue that leading historical accounts of human rights attribute “subjective” rights too narrowly to Enlightenment and post-Enlightenment legal thought. Earlier forms of classical Roman law and medieval canon law, and legal norms developed by Protestant reformers of the sixteenth and seventeenth centuries shaped Western human rights regimes in historically important ways, anticipating most of the rights formulation of modern liberals. In response to contemporary scholars who criticize human rights paradigms as inadequate or incompatible with Christian faith and practice, the authors argue that rights should remain a part of Christian moral, legal, and political discourse, and that Christians should remain a part of pluralistic public debates about the appropriate scope and substance of human rights protections.

A Comparative Overview of the Fair Wear and Tear Exception: the Duty of Holders of Temporary Interests to Preserve Property

2002 ◽  
Vol 6 (1) ◽  
pp. 85-100
Author(s):  
Raffaele Caterina
Keyword(s):  
Common Core ◽  
Complete Solution ◽  
Roman Law ◽  
Private Ownership ◽  
Legal Systems ◽  
Personal Rights ◽  
Wear And Tear ◽  
Long Life ◽  
The Law ◽  
The Relationship

“A system of private ownership must provide for something more sophisticated than absolute ownership of the property by one person. A property owner needs to be able to do more than own it during his lifetime and pass it on to someone else on his death.”1 Those who own things with a long life quite naturally feel the urge to deal in segments of time. Most of the owner's ambitions in respect of time can be met by the law of contract. But contract does not offer a complete solution, since contracts create only personal rights. Certain of the owner's legitimate wishes can be achieved only if the law allows them to be given effect in rem—that is, as proprietary rights. Legal systems have responded differently to the need for proprietary rights limited in time. Roman law created usufruct and other iura in re aliena; English law created different legal estates. Every system has faced similar problems. One issue has been the extent to which the holder of a limited interest should be restricted in his or her use and enjoyment in order to protect the holders of other interests in the same thing. A common core of principles regulates the relationship between those who hold temporary interests and the reversioners. For instance, every system forbids holder of the possessory interest to damage the thing arbitrarily. But other rules are more controversial. This study focuses upon the rules which do not forbid, but compel, certain courses of action.

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.

scholarly journals Illogicality and Roman Law

1972 ◽  
Vol 7 (1) ◽  
pp. 14-24 ◽  
Author(s):  
Alan Watson
Keyword(s):  
South Africa ◽  
International Law ◽  
Western Europe ◽  
Outer Space ◽  
Roman Law ◽  
Modern World ◽  
Legal Systems ◽  
The Moon ◽  
Age Of Reason ◽  
The Law

It is a commonplace that Rome's greatest contribution to the modern world is its law. Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res nullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no ‘practical” value. Thirdly, following upon these but worse still, the usefulness of Roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in “the Age of Reason” were ready to regard Roman law as “the Law of Reason”.

The Shari’a Approach to Contemporary Problems of Mass Surveillance

2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Sattam Eid Almutairi
Keyword(s):  
North America ◽  
Personal Data ◽  
Legal Systems ◽  
Legal Norms ◽  
Muslim Countries ◽  
Norms And Values ◽  
The World ◽  
State Surveillance ◽  
Mass Surveillance ◽  
Do So

AbstractThe phenomenon of mass surveillance has confronted legal systems throughout the world with significant challenges to their fundamental norms and values. These dilemmas have been most extensively studied and discussed in relation to the kind of privacy cultures that exist in Europe and North America. Although mass surveillance creates the same kinds of challenges in Muslim countries, the phenomenon has rarely been discussed from the perspective of Shari’a. This article seeks to demonstrate that this neglect of mass surveillance and other similar phenomena by Shari’a scholars is unjustified. Firstly, the article will address objections that Shari’a does not contain legal norms that are relevant to the modern practice of state surveillance and that, if these exist, they are not binding on rulers and will also seek to show that, whatever terminology is employed, significant aspects of the protection of privacy and personal data that exists in other legal systems is also be found deeply-rooted in Shari’a. Secondly, it will assess the specific requirements that it makes in relation to such intrusion on private spaces and private conduct and how far it can benefit from an exception to the general prohibition on spying. Finally, it is concluded that mass surveillance is unlikely to meet these Shari’a requirements and that only targeted surveillance can generally do so.

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.

“A composItIon wrItten wIthout creatIve lImItatIons” – Wanda Landowska and concerto for harpsichord and five instruments by ManueL de Falla (1923)

2021 ◽  
Vol 1 (15) ◽  
pp. 67-107
Author(s):  
Ines R. Artola
Keyword(s):  
Strict Sense ◽  
Sonata Form ◽  
Historical Sources ◽  
Avant Garde ◽  
20Th Century Music ◽  
The Third ◽  
Word Analysis ◽  
The Past ◽  
History Of ◽  
The One

The aim of the present article is the analysis of Concerto for harpsichord and five instruments by Manuel de Falla – a piece which was dedicated by the composer to Wanda Landowska, an outstanding Polish harpsichord player. The piece was meant to commemorate the friendship these two artists shared as well as their collaboration. Written in the period of 1923-1926, the Concerto was the first composition in the history of 20th century music where harpsichord was the soloist instrument. The first element of the article is the context in which the piece was written. We shall look into the musical influences that shaped its form. On the one hand, it was the music of the past: from Cancionero Felipe Pedrell through mainly Bach’s polyphony to works by Scarlatti which preceded the Classicism (this influence is particularly noticeable in the third movement of the Concerto). On the other hand, it was music from the time of de Falla: first of all – Neo-Classicism and works by Stravinsky. The author refers to historical sources – critics’ reviews, testimonies of de Falla’s contemporaries and, obviously, his own remarks as to the interpretation of the piece. Next, Inés R. Artola analyses the score in the strict sense of the word “analysis”. In this part of the article, she quotes specific fragments of the composition, which reflect both traditional musical means (counterpoint, canon, Scarlatti-style sonata form, influence of old popular music) and the avant-garde ones (polytonality, orchestration, elements of neo-classical harmony).

Sign in / Sign up

Export Citation Format

Share Document