JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/The Legal History Review LXXXVII (2019), nr. 1-2

(image source: Brill)

Residual value and assessement of damages under the lex Aquilia (Harry Dondorp)

Abstract:

Nowadays it is generally held, that the owner who brought an actio legis Aquiliae usually claimed no more than his loss, perhaps already in Ulpian’s time, for certain in Justinian’s. For the sum of condemnation based upon the estimation-clauses of the lex Aquilia would only then exceed his damages, if either the injured object’s value had decreased in the last year or 30 days (Inst. 4,3,9) or the wrongdoer had denied having caused the damage (C. 3,35,4). There is, however, a third reason, which the Roman texts fail to mention: a possible residual value of killed lifestock, wounded slaves, and damaged objects, which benefitted the owner. Only a few later jurists took this into account: in medieval times Jacques de Révigny and Pierre Jacobi, Johann Oldendorp in the Early Modern era. The notion prevailed that the lex Aquilia obliged to pay at least the object’s full value.

The Gloss to the Saunteen Kesta (Seventeen Statutes) of the Frisian Land Law (Jan Hallebeek)

Abstract:

The Seventeen Statutes is one of the oldest classical texts of Old Frisian Law. In its late fifteenth century edition, as part of the Frisian Land Law, it was provided with Latin glosses. Analysis of these glosses, which were scarcely investigated until now, enables us to pronounce with more certainty upon the date of both the Frisian Land Law, as a compilation, and its Gloss. Moreover, the glosses to the Seventeen Statutes reflect a considerable increase of ecclesiastical competence, point to certain principles of Romano-canonical procedure and use Roman law texts when applying provisions of indigenous law. This all may indicate a stronger presence of learned law in late medieval Friesland than previously assumed.

The barratry of the shipmaster in early modern law: polysemy and mos Italicus (Guido Rossi)

Abstract:

‘Barratry’ is a polysemic term: it means deceit, bribe, simony, and fraud of the shipmaster. This article seeks to trace the origins of the word and to explore its different meanings, focusing especially on the influence that older meanings had on the development of more recent ones. This operation is of particular importance to understand the meaning of barratry that would appear for last – that of fraud of the shipmaster. By the time civil lawyers started dealing with maritime barratry, they were already well familiar with the other meanings of the term. This probably favoured the adaptation process, but it also left a deep mark on its outcome: the weight of those other meanings of the same term had a significant influence on the qualification of maritime barratry, an influence otherwise difficult to explain.

Thomas Craig on the origin and development of feudal law (Leslie Dodd)

Abstract:

When Thomas Craig (c.1538-1608) wrote his great treatise on Scottish feudal practice, the Jus feudale, he devoted a considerable part of the first book to legal origins. This article deals with Craig’s treatment narrative on the origins of feudal law and tenure in the fourth and fifth titles of the first book. By close examination of the text, the detailed formulation of Craig’s argumentation and technique is uncovered as well as the myriad classical, mediaeval and humanist sources upon which his literary project was based. In this way, the deep relationship between Craig – and by extension Scots law – and the historico-legal product of the French legal humanists is explored.

The legal foundations of post-mortem examinations in early modern Flanders. Princely legislation, custom, doctrine and judicial practice (Kevin Dekoster)

Abstract:

Because of its manifold references to the consultation of medical experts in homicide and infanticide cases, the Constitutio Criminalis Carolina of Holy Roman Emperor Charles V (1532) is often regarded as an important milestone in the development of early modern forensic medicine. During the sixteenth and seventeenth centuries the County of Flanders, a principality within the Habsburg Netherlands, witnessed a similar upsurge in the production of normative and doctrinal texts aiming to regulate forensic activities. Drawing on princely legislation, local customary law and the writings of the jurists Filips Wielant and Joos de Damhouder, this contribution will compare the corpus of Flemish legal texts with its practical application by the myriad of law courts operating within the county. As the princely legislation only laid out a general framework, the regulation of the forensic post-mortem was essentially an issue of local governance. The local nature of forensic practices should however not be overestimated. Evidence from preserved post-mortem reports demonstrates that there were more similarities between towns and regions within the county than actual differences.

De 19e-eeuwse geschiedenis van de Nederlandse wetenschap van het burgerlijke recht? Helemaal niet! (Jeroen M.J. Chorus)

Abstract:

This article reviews C.J.H. Jansen’s attempt to write the history of Private Law (except for Commercial Law) doctrine in The Netherlands during the 19th Century. Regrettably, Jansen’s book does next to nothing discuss academic and other scholarly writings on the Law of Property and of Obligations, and does not at all discuss such writings on the Law of Persons and the Family, of Juristic Persons and of Succession. It only deals with aspects of methodology, of sources of law and of extra-legal factors which inspired some authors, apart from pouring out over the reader lots of facts unconnected with Private Law doctrine. The book’s title is misleading.

Reviews:

• Hyginus, Das Feldmesserbuch, Ein Meisterwek der spätantiken Buchkunst, edited by Jens-Olaf Lindermann, Eberhard Knobloch and Cosima Möller, 2016 (A.J.B. Sirks)
• The emperor of law, The emergence of Roman imperial adjudication, written by K. Tuori, 2016 (A.J.B. Sirks)
• Wat is recht? De receptie van Oudfries recht in de Groninger Ommelanden in de 15e en 16e eeuw, written by Henk D. Meijering en Han Nijdam, 2018 (B.S. Hempenius-van Dijk)
• Le tribunal de l’officialité de Tournai et les comptes du scelleu, Introduction, édition et traduction française, written by Monique Vleeschouwers-Van Melkebeek, 2016 (Stephan Dusil)
• Deutsche Rechtsgeschichte im Kontext Europas, written by Peter Landau, 2016 (Stephan Dusil)
• Literatura jurídica y censura. Fortuna de Vinnius en España, written by Laura Beck Varela, 2013 (Jan Hallebeek)
• Procesgids. Hof van Utrecht. Hoofdlijnen van het procederen in civiele zaken, written by J.M. Milo & E.G.D. van Dongen, 2018) (Jan Hallebeek)

(source: Standen&Landen)