Bona fides presumitur in classical Canon Law

2016 ◽  
Vol 102 (1) ◽  
Author(s):  
Harry Dondorp
Keyword(s):  
Canon Law ◽  
Good Faith ◽  
The Other ◽  
Moral Duty ◽  
Roman Law ◽  
Legal Practice ◽  
Fourth Lateran Council

AbstractIn 1215, the Fourth Lateran Council settled a controversy between theologians and jurists with regard to the duty to make restitution. This moral duty was not always recognized at law because of the limitation of claims, which the jurists derived from Roman Law (C. 7.39.3) and which they termed as longissimi temporis praescriptio. Hence, correcting a statute that cannot be observed without peril to one’ soul, the council required that the person who prescribes, must not know at any time that the object belongs to someone else. The effect in legal practice may have been minor, for the canonists presumed the possessor’s ignorance after thirty years of uncontested possession. It was to the other party, the claimant, to disprove this presumption. Even if, by exception, there was a presumption to the contrary, the defendant invoking prescription could avoid proving his good faith by oath, for the presumtion then derived from the combination of the lapse of time and a proper cause (titulus) of his possession

Bona fides presumitur in classical Canon Law

2016 ◽  
Vol 102 (1) ◽  
pp. 99-122
Author(s):  
Harry Dondorp
Keyword(s):  
Canon Law ◽  
Good Faith ◽  
The Other ◽  
Moral Duty ◽  
Roman Law ◽  
Legal Practice ◽  
Fourth Lateran Council

Abstract In 1215, the Fourth Lateran Council settled a controversy between theologians and jurists with regard to the duty to make restitution. This moral duty was not always recognized at law because of the limitation of claims, which the jurists derived from Roman Law (C. 7.39.3) and which they termed as longissimi temporis praescriptio. Hence, correcting a statute that cannot be observed without peril to one’ soul, the council required that the person who prescribes, must not know at any time that the object belongs to someone else. The effect in legal practice may have been minor, for the canonists presumed the possessor’s ignorance after thirty years of uncontested possession. It was to the other party, the claimant, to disprove this presumption. Even if, by exception, there was a presumption to the contrary, the defendant invoking prescription could avoid proving his good faith by oath, for the presumtion then derived from the combination of the lapse of time and a proper cause (titulus) of his possession

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.

scholarly journals Comments on the Influence of Canon Law on the Common Law Legal Tradition

2019 ◽  
Vol 20 (1) ◽  
pp. 5-30
Author(s):  
Javier Martínez-Torrón ◽  
Lorraine Hernández
Keyword(s):  
Canon Law ◽  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Roman Law ◽  
Considerable Influence ◽  
Legal Tradition ◽  
Evolutionary Path ◽  
Conventional View ◽  
The Common

In this paper, the author questions the conventional view that the civil law and common law traditions are radically different in their reception of Roman Law. He argues that Roman Law concepts, mediated by canon law, exerted a considerable influence over the common law. He identifies a number of channels through which this influence has shaped common law concepts. Thus, canonical equitas probably served as a model for the equitable rules bases on good faith. Although common law evolved in a distinctive way, because of procedural considerations, its evolutionary path had already been followed by that of canon law.

Structure of Medieval Roman Law

2018 ◽  
Author(s):  
Jan Hallebeek
Keyword(s):  
Twelfth Century ◽  
Canon Law ◽  
Legal Culture ◽  
Roman Law ◽  
Southern Europe ◽  
Court Cases ◽  
Legal Practice ◽  
Ius Commune ◽  
Northern Regions ◽  
Advisory Opinions

At the beginning of the twelfth century a university emerged at Bologna where the study of Roman law was taken up. The first generations of scholars, the glossators, interpreted the Corpus iuris civilis in its medieval shape (subdivided into five volumes) and produced various types of scholarly works: glosses, lecturae, summae, etc. Learned jurists of the fourteenth and fifteenth centuries, the commentators, continued the exegetical work of their predecessors. They no longer wrote glosses, but continuous commentaries. Moreover, they produced consilia, advisory opinions given in view of specific court cases. By this time the study of Roman law had spread over major parts of southern Europe. With the dissemination of canon law and the foundation of universities, the knowledge of Roman law could also spread to more northern regions, penetrate into legal practice, and lay the foundation of a common legal culture on the continent: the ius commune.

scholarly journals “Vom Ehebruch und weglauffen”

2021 ◽  
Vol 84 (1) ◽  
pp. 3-24
Author(s):  
Per Ingesman
Keyword(s):  
Canon Law ◽  
Roman Law ◽  
Legal Practice ◽  
The Reformation ◽  
Philipp Melanchthon ◽  
The Law ◽  
Law Courts

Abstract: In 1539, Johann Bugenhagen wrote a book, Vom Ehebruch und weglauffen (“On adultery and desertion”), to advice King Christian III on the handling of marital cases. Based on Scripture, divorce is allowable only if a spouse commits adultery or runs away secretly. The article compares Bugenhagen’s two grounds for divorce with those found in Niels Hemmingsen’s Libellus de coniugio, repudio, et divortio from 1572 and in the Marriage Ordinance of King Frederik II of 1582. It is argued that Hemmingsen in allowing six grounds for divorce, including e.g. violence and impiety, follows Philipp Melanchthon, who not only accepted the two scriptural grounds, but also a number of additional grounds from Roman Law and Canon Law. With its three grounds for divorce – adultery, desertion, and impotence – the Marriage Ordinance of 1582 reflected legal practice developed in the law courts that had been handling marital cases since the introduction of the Reformation.

scholarly journals Bona fides (poštenje posjeda) kod zastare (praescriptio acquisitiva) i dosjelosti (usucapio) – prilog raspravi o suodnosu kanonskog i hrvatskog prava

2021 ◽  
Vol 70 (6) ◽  
pp. 755-781
Author(s):  
Henrik-Riko Held ◽  
Keyword(s):  
Catholic Church ◽  
Canon Law ◽  
Good Faith ◽  
Roman Law ◽  
Legal Tradition ◽  
Holy See ◽  
Reasonable Possibility ◽  
Adverse Possession ◽  
The Republic ◽  
The Right

The author analyses bona fides, or possession in good faith, as a prerequisite of the canonical praescriptio acquisitiva and the adverse possession as set forth in contemporary Croatian law in their interrelationship. The problem stems from the fact that the Treaty between the Holy See and the Republic of Croatia on legal matters, being an international treaty and thus having precedence over Croatian laws according to the Croatian constitution, in certain circumstances allows for a direct application of canon law within the Croatian legal system. The aim of this paper is to analyse whether this also applies to bona fides in adverse possession, and if so, in which way exactly. The canonical praescriptio in the context of the Roman legal tradition is analysed first in order to clarify certain terminological and conceptual discrepancies between canon law and Croatian law in this field. Bona fides regarding usucapio and praescriptio of Roman law and the Roman legal tradition is then particularly addressed. The central part of the paper deals with canonical bona fides, where it is specifically noted that it is a stricter standard in comparison to good faith as found in Croatian law. Canon law requires positive good faith throughout the whole required prescription period, meaning knowledge or a reasonable possibility of knowledge of having a right to possess, not infringing the right of another thereby. On the other hand, Croatian law requires knowledge or possibility of knowledge at the outset, while later on only acquired knowledge will render possession illicit. In addition, the Croatian standard of good faith is conceived more simply in comparison to the twofold canonical standard, i.e. only as the absence of knowledge or possibility of knowledge of not having a right to possess. Although both systems presume good faith, those differences may prove crucial if an interested party (owner of property being prescribed) offers evidence to the contrary. Finally, our analysis of the Treaty between the Holy See and the Republic of Croatia on legal matters revealed that the canonical standard of bona fides should be applied whenever a juridical person of the Catholic Church in Croatia acquires property by means of adverse possession, but by all accounts also when any other person acquires Church property in the same way.

scholarly journals Recepcija rimskog prava na glagoljici

2021 ◽  
Vol 41 (3) ◽  
pp. 679-689
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.

Świadczenie niegodziwe – trudne dziedzictwo rzymskiej inspiracji

2018 ◽  
Vol 72 ◽  
pp. 101-119
Author(s):  
Wojciech Dajczak
Keyword(s):  
Legal Reasoning ◽  
Legal Discourse ◽  
Comparative Methods ◽  
Good Faith ◽  
The Other ◽  
Legal Regulations ◽  
Legal Practice ◽  
Ius Commune ◽  
Weak Points ◽  
Unjustified Enrichment

Incorporating the rules inspired by the Roman condictio ob turpem causam into modern regulations of unjustified enrichment provokes criticism. Such regulations are diversified into several models but mostly invoke controversies. The main goal of this paper is evaluating these critical opinions and doubts repeated in legal discourse using historical and comparative methods. Author focuses on five issues: usefulness of condictio ob turpem causam in the light of works of ius commune jurists; doubts concerning the principle in pari turpitudine melior est conditio possidentis; different approach of various European legislators to the idea of condictio ob turpem causam; relation between regulations of unjustified enrichment and unenforceability of agreements contrary to the o law and good customs; importance of the restitution of payments contrary to the law and good customs for today’s legal practice. The conclusions of such analysis allow to admit that doubts concerning the continuation of the Roman condictio ob turpem causam are justified. From the other side, in times of multicultural societies and increasing number of legal regulations the growth of disputes resulted from the payments contrary to law and good customs can be observed. The rejection of repayment based on the contrary to the objective good faith offers – according to the author – the best compromise between weak points of Roman condictio ob turpem causam and challenges of modern practice. In the legal reasoning it is expressed by the maxime „no one shall be heard, who invokes his own guilt”.Incorporating of this maxime into the unjustified enrichment is all the more justified when higher could be in legal practice doubts concerning the acceptability of rejection of restitution of the payment with has been made without legal ground but in the contrary to the principle of good faith.

Alma Mater Studiorum. O genezie i początkach uniwersytetów

2017 ◽  
Vol 15 (2) ◽  
pp. 9-22
Author(s):  
Marek Maciejewski
Keyword(s):  
Middle Ages ◽  
Canon Law ◽  
18Th Century ◽  
Ancient Greece ◽  
Roman Law ◽  
Institutions Of Higher Education ◽  
13Th Century ◽  
New Era ◽  
Conducting Research ◽  
The 19Th Century

The origin of universities reaches the period of Ancient Greece when philosophy (sophists, Socrates, Plato, Aristotle, stoics and others) – the “Queen of sciences”, and the first institutions of higher education (among others, Plato’s Academy, Cassiodorus’ Vivarium, gymnasia) came into existence. Even before the new era, schools having the nature of universities existed also beyond European borders, including those in China and India. In the early Middle Ages, those types of schools functioned in Northern Africa and in the Near East (Baghdad, Cairo, Constantinople, cities of Southern Spain). The first university in the full meaning of the word was founded at the end of the 11th century in Bologna. It was based on a two-tiered education cycle. Following its creation, soon new universities – at first – in Italy, then (in the 12th and 13th century) in other European cities – were established. The author of the article describes their modes of operation, the methods of conducting research and organizing students’ education, the existing student traditions and customs. From the very beginning of the universities’ existence the study of law was part of their curricula, based primarily on the teaching of Roman law and – with time – the canon law. The rise of universities can be dated from the end of the Middle Ages and the beginning of modernity. In the 17th and 18th century they underwent a crisis which was successfully overcome at the end of the 19th century and throughout the following one.

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