JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'histoire du droit/The Legal History Review LXXXXIX (2022), nr. 3-4

 

(image source: Brill)

Olav Moorman van Kappen † (De Redactie/La rédaction/The Editors)
DOI 10.1163/15718190-20220032

Uitreking Prijs Robert Feenstra 2017-2019
DOI 10.1163/15718190-20220033

Articles

The politics of the lex Aquilia Reparation disputes in the battle of the orders: the quest for fair trials (Wolfgang Ernst) [OPEN ACCESS]
DOI 10.1163/15718190-20220018
Abstract:

Centuries of interpretation by sophisticated Roman jurists developed a comprehensive and nuanced law of damage to personal property, based on the republican lex Aquilia. This lex originated from a plebiscite and the plebeians must have pursued a comprehensible political purpose. That purpose is to be found in the ‘access to justice’ problem inherent in the legis actio per sacramentum procedure, which hindered cash-poor plebeians from engaging in adversarial trials. This grievance became pressing in the aftermath of the last secessio plebis (ca. 287 BCE) when vast amounts of property damage and destruction awaited judicial redress. For the most heinous deeds, the killing of slaves and cattle, a manus iniectio procedure was instituted that incentivised uncontested payment of reparations based on a confessio in iure. In the context of this reform, other elements of the lex Aquilia can be reconsidered, inter alia the reliance on a price from the preceding year and the mysterious Chapter II.

Le manomissioni del ius civile e il momento acquisitivo della cittadinanza romana (Lorenzo Gagliardi)
DOI 10.1163/15718190-20220023
Abstract:

A comparison is made among the three manumissions of the ius civile and it is investigated what was the moment in which the freedmen acquired Roman citizenship and could begin to exercise political rights. It is concluded that the manumissi censu acquired all political rights immediately after the manumission. The manumissi vindicta and testamento, on the other hand, acquired citizenship at the time of manumission, but had to wait for the census both to be admitted to the centuriate assembly and to be registered in the tribes (and therefore to receive the right to vote in the tribal assemblies).

Akteure im Hintergrund Die Rolle der Faktoren in kaufmännischen Netzwerken und die Genese ihres rechtlichen Handlungsspielraums (Heiliges Römisches Reich Deutscher Nation und Deutsches Reich) (Anja Amend-Traut)
DOI  10.1163/15718190-20220016
Abstract:

Already since the emergence of supra-national trade, merchants and trading companies have made use of so-called Faktoren (factors) to establish and expand their business networks. The increasing differentiation of the factor activity was first taken into account by the case law and commercial expert opinions, so-called pareres, which were subsequently received and finally led to the commercial codifications by constituting their own legal figures for dependent and independent action, in particular the assistants, the power of attorney and the commission. As part of this consolidation process, the special need for protection of trade and its trust in the persons appointed by the principal, who bore the risk of having used third parties for his interests, was implemented. Long before this risk distribution led to the ALR and subsequent trade laws, this fundamental trading ethos was established and further developed by merchants and lawyers alike. Only this further training and transfer to new constellations and legal figures formed the basis for the distinction between a commercial and civil law obligation of the represented person for his representative.

Jacob Coren’s Observatio 40: shipowner liability for inculpable ship collision and its limitation in Roman-Dutch law (Tim Lubbers)
DOI  10.1163/15718190-20220026
Abstract:

In 1617, two Dutch merchantmen collided in a storm on the North Sea. The incident resulted in extensive legal proceedings before the Supreme Court of Holland, Zeeland and West-Friesland, lasting until 1640. In an unprecedented decision, which was published as no. 40 of Jacob Coren’s well-known Observationes, the Court limited the liability of shipowners for inculpable ship collision to the value of their ship. Based both on extensive archival research and the text of Coren’s Observatio, the present article offers a detailed discussion of the facts and proceedings of the case, and sets out how the case was received by Roman-Dutch scholars. As it turns out, limitation of shipowner liability was analysed in terms of noxal surrender in order to reconcile shipowner liability for inculpable ship collision with contemporary perceptions of equity.

‘Mercatores isti regulandi’: Monopolies and moral regulation of the market in Pedro de Oñate’s De contractibus (Wim Decock) 
DOI 10.1163/15718190-20220017
Abstract:

Compared to the writings of other teólogos-juristas belonging to the so-called School of Salamanca, Pedro de Oñate’s (1567-1646) De contractibus has met with little if almost no interest in the literature. It nevertheless marks an epochal achievement in the history of juridical and economic thought. Published between 1646 and 1654, Oñate’s De contractibus epitomizes five centuries of scholastic thinking about the moral regulation of the market. It is a spectacular work, addressing hundreds of problems related to contractual agreements and commercial life in general. This paper offers an overview of Oñate’s lengthy assessment of monopolistic practices, including price-fixing cartels, import barriers, the creation of artificial scarcity, and legal monopolies, including the conceptualization of intellectual property. Two major conclusions can be reached from the close-reading of Oñate’s treatment of monopolistic practices. First, Oñate’s opinions are marked by an even starker emphasis on individual rights, property and freedom than those of his colleagues working in major cities on the other side of the Atlantic. Second, his analysis is not only the reflection of his extraordinary knowledge of centuries of scholastic thinking about the morality of the market, but also of his practical experience in the New World.

Chinese international lawyer and British doctoral supervisor The case of Hwang King Hung and Hersch Lauterpacht (Li Chen)
DOI 10.1163/15718190-20220025
Abstract:

This article draws upon multi-archival research to rediscover Hwang King Hung, a forgotten Chinese international lawyer who was the first ethnic Chinese person to receive a PhD in Law from Cambridge University. Specifically, it aims to shed light on how Hwang was trained by Hersch Lauterpacht, Hwang’s doctoral supervisor, and how Lauterpacht played a crucial role in training eminent Chinese international lawyers in the first part of the 20th century. It further aims to challenge the traditional Eurocentrism of international legal history and inspire further research into the lived experiences of the pioneer generation of international lawyers from China.

Der Erbvertrag der Römer und der Erbvertrag heute Einige Erwägungen zu dem Buch von M.F. Merotto (Aleksander Grebieniow)
DOI  10.1163/15718190-20220024
Abstract:

Pacta successoria in Roman and contemporary law: observations in the margin of M.F. Merotto’s recent book. – The work I patti successori dispositivi nel diritto romano is the most recent publication tackling the problem of contractual succession according to Roman law. In the book’s introduction, Maria Federica Merotto responds to the voices calling for a more nuanced study of this phenomenon. Despite numerous exciting thoughts, the study displays shortcommings. The vast discrepancy between the declared methodological attitude and the actual course of the textual exegesis serves as a starting point for a more profound reflection on the shadow that modern legal concepts cast onto the ancient texts and the narrowness of traditional corpus of sources in conventional Roman law research.

Book reviews:

• Antichresis en pandgebruik, De bevoegdheid van de zekerheidsgerechtigde tot gebruik, beheer en vruchttrekking in rechtshistorisch en rechtsvergelijkend perspectief, written by R. Bobbink (Author: D. Schanbacher)
• De ondeelbaarheid van het pand- en hypotheekrecht; deconstuctie van een leerstuk, Een historisch-comparatieve studie, written by J. van Kralingen (D. Schanbacher)
• A history of Russian law from ancient times to the Council Code (Ulozhenie) of Tsar Aleksei Mikhailovich of 1649, written by F.J.M. Feldbrugge (Martin Avenarius)
• Loans and credit in consilia and decisiones in the Low Countries (c. 1500-1680), written by W. Druwé (Wolfgang Ernst)
• Freedom, an unruly history, written by Annelien de Dijn (Christophe Maes)
• Patent cultures, Diversity and harmonization in historical perspective , edited by G. Gooday [and] S. Wilf (Louis Pahlow)

Necrologie/Nécrologie/Obituary

In memoriam Margaret Louise Hewett, 1934-2022 (Jan Hallebeek)

Kroniek/Chronique/Chronicle

Ontvangen werken/Ouvrages reçus/Publications Reviewed

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