Articles
In memoriam Olav Moorman van Kappen, 1937–2022 (P.L. Nève)
(DOI 10.1163/15718190-2023xx01)
Der Eigentumserwerb durch traditio Zugleich zur Frage einer putativen iusta causa traditionis und zu Konsequenzen für die Kondiktionenlehre (Veronika Kleňová)
(DOI 10.1163/15718190-2023xx02)
Abstract:
The acquisition of property by traditio, In addition, putative iusta causa traditionis and consequences for the doctrine of condictio. – The Justinian Digest contain a number of texts in which the traditio transfers ownership, although the ‘causa’ on account of which the delivery takes place, does not exist in fact. The paper attempts to show that this phenomenon cannot be explained through a broad acceptance of the putative causa traditionis, because the Roman concept of the traditio ex iusta causa differed from that of the ‘titulus-modus-doctrine’. The classical Roman law considered the iusta causa in most cases as the purpose of the delivery, for which the traditio was a means to achieve; the (non-)achievement of the intended purpose did not decide on the transfer of ownership, but only whether the recovery of the performance (condictio) was admissible. This shows the way Roman law favored the transfer of ownership.
Zum Irrtum des Erblassers im klassischen römischen Recht (Amon Krükel)
(DOI 10.1163/15718190-2023xx13)
Abstract:
On error of the testator in classical Roman law. – The paper discusses the different ways in which the classical Roman jurisprudence treated the testator’s error, be it a mistake concerning the choice of words, be it a false estimation of facts misleading the testator’s voluntas. In either case, the jurists may have treated the erroneous disposition as void or reformulated it according to the testator’s intention. However, it is shown that – contrary to some voices in the literature – no general rules on dealing with errores can be recognised. Rather, the Roman jurists and emperors decided each case on its own without referring to an underlying principle. It is only in the late classical period that some tendencies of an abstract thinking regarding this topic can be discerned.
Chirographs in Roman law: constitutive or evidential? (A.J.B. Sirks) (open access)
(DOI 10.1163/15718190-2023xx03)
Abstract:
It has recently been sustained that chirographs had only evidential value and no constitutive effect in classical Roman law. That is correct regarding their origin in Roman law, however, the nature of a chirograph was such that as evidence it was effectively constitutive. Only the remedies later created (the exceptio and later the querimonia non numeratae pecuniae) provided relief. They and the actiones utiles granted to acquirers of chirographs prove that in the course of time chirographs were considered by their users as constitutive, if not already declared so. It appears from the Murecine texts where debtors declare themselves indebted by chirographs that this situation may already have existed in the middle of the first century ad. Hence we should accept the possibility of an early shift in legal categorisation of the chirograph to a contractus litteris.
« Aussy avant les filz que les filles, et les filles que les filz » : les droits successoraux des filles de famille dans la coutume de Liège et dans les actes de la pratique du XVIe siècle (Marie-Sophie Silan)
(DOI 10.1163/15718190-2023xx08)
Abstract:
« Aussy avant les filz que les filles, et les filles que les filz » : inheritance rights of daughters according to the custom of Liège and in deeds of the 17th century. – In the 16th century, the customary law of Liège, a middle-sized estate of the Holy Roman Empire governed by a prince-bishop, excluded daughters from inheriting censal property located outside the ‘franchise’ of the states’ cities. However, such property – lands and buildings subjected to cens and annuities (‘cens’ and ‘rentes’) – often constituted a significant part of the parental estate. Aware of the issue, and of the risks that the law might lead to situations of conflicts, including legal proceedings, between their children, many parents, together or separately, derogated from the customary rule in their will. An aspect which has more rarely been brought to the fore by legal scholarship, marriage contracts were also a means to divide the inheritance equally among children.
Plane nostris moribus: customary financing on future salary by the Dutch East India Company (Christiaan van Brouchove, Michael Milo & Ton van Velzen)
(DOI 10.1163/15718190-2023xx07)
Abstract:
Transferring claims has traditionally been a dogmatic near impossibility in the civilian institutional tradition. In practice, however, contractual creativity provided space to develop a variety of mechanisms for transferring claims. Our paper explores such a mechanism, which financed the seamen of the Dutch East India Company (voc), on the basis of their claims to future salary. The associated document, the so-called transportbrief, started from a seaman’s debt, which by mandate the Company accepted to pay to the bearer of the document, if conditions as performance of labor obligations were met. Payment practice itself was carefully orchestrated by resolutions of the voc board, the Heeren xvii, thereby tailoring market and law according to the various interests involved.
Joachim von Exter und die Rezeption der actio Pauliana im hamburgischen Stadtrecht (Constantin Willems)
(DOI 10.1163/15718190-2023xx11)
Abstract:
Joachim von Exter and the reception of the actio Pauliana in Hamburg statute law. – On 23 May 1785, a certain Joachim von Exter defended his legal dissertation De actione Pauliana Hamburgi non introducta sed necessario introducenda at the University of Frankfurt an der Oder, under the auspices of Joachim Georg Darjes, professor of natural law. As the title of his thesis indicates, von Exter wanted to demonstrate that there had been no formal reception of the actio Pauliana, remedy against fraudulent conveyances in Justinianic law, in the statute law of his home town Hamburg up to his time, but that an incorporation of this legal institution was something to be desired. After a brief preliminary note on von Exter’s quite colourful life, the paper traces the core theses of his work and the process of reception of the actio Pauliana in Hamburg.
Beschuldigd van intrafamiliaal geweld voor het Hof van Assisen van het Scheldedepartement / de provincie Oost-Vlaanderen, 1811–1867 (Jos Monballyu)
(DOI 10.1163/15718190-2023xx04)
Abstract:
Accused of domestic violence before the Assize Court of the Scheldt Department / Province of East Flanders, 1811-1867. – Studying the criminal prosecution of intrafamily violence in the Scheldt department / province of East Flanders between 1811 and 1867 is only possible by consulting the archives of the Assize Court of that region. Because this Assize Court only dealt with the most serious criminal cases, one can only study the tip of the iceberg.Between 1811 and 1867, the Assize Court of the Scheldt Department / Province of East Flanders in Belgium treated 203 criminal cases involving interfamily violence. 107 (53%) of these cases involved violence against a child and in 94 of those 107 cases (88%) an infanticide. In total 103 people were charged with an infanticide, but in the end only 38 were punished with death, being the then legal punishment for this crime. All other accused were acquitted or, after a reclassification of the facts listed in the indictment, sentenced for another crime such as an involuntary manslaughter of a child or concealing a child. The main reason for this was the fact that an infanticide, which was usually committed without witnesses, was very difficult to prove. Thirteen other criminal cases for violence against a child dealt with violence against a no longer new-born child. The Court of Assizes applied the normal penalties in these criminal cases. This usually involved mostly intentional manslaughter, murder or attempted murder of such a child.In the period 1811–1867, the Court of Assize also tried 73 people for violence against a parent or grandparent. Of those 73 persons, 15 were acquitted and 58 (7 women and 51 men) punished. Three persons accused of elder murder were punished: one for intentionally beating his father, one for murdering his father and one for murdering his mother. The 55 other accused were punished for intentional hits on an ascendant.Partner violence was the category of interfamily violence that was least dealt with by the Assize Court. In total, the Assize Court handled only 25 criminal cases for marriage partner violence, involving 27 people as perpetrators or accomplices. Six of those 25 criminal cases dealt with poisoning of the partner and 12 criminal cases with murder or attempted murder of the partner. In only five of the last 12 criminal cases, the accused was sentenced to death, but in the end only one of them was guillotined. The four other death row inmates were given a kingly grace who commuted their death sentences to a hard labour. In the other seven of those 12 criminal cases, the case was reclassified to intentional manslaughter or intentional hits and wounds and punished as such.The Assize Court also treated five criminal trials in which a person was charged from the outset with intentional manslaughter of the marriage partner. In three of those five criminal cases, the accused was also punished for such intentional manslaughter, in one of those five criminal cases, the offences were reclassified to intentional hits and wounds causing illness or disability of more than twenty days, and in one of those five criminal cases, the accused was acquitted. Finally, the Assize Court also treated two criminal cases in which a person was charged from the outset with intentional hits and wounds against his marriage partner. In one of those two criminal cases, after a reclassification of the facts, the Court sentenced the accused to two years’ imprisonment and a fine of 200 francs. In the second criminal case the accused was acquitted.
‘Windscheid steht Paulus in nichts nach, und ist dabei für uns viel mehr wert als jener’ Zum Umgang Stanisław Wróblewski’s mit der Pandektistik (Ernest C. Bodura) (open access)
(DOI 10.1163/15718190-2023xx09)
Abstract:
‘Windscheid is in no way inferior to Paul, and in this he is worth much more to us than Paul’ – on Stanisław Wróblewski’s treatment of Pandectistics. – In his home country Poland Stanisław Wróblewski (1868–1938) is unanimously numbered among the jurists of the first rank in the extant literature on legal historiography. He is considered to be ‘the Polish Roman lawyer about whom the most has been written’. The admiration for Wróblewski’s scholarly oeuvre among Polish authors even goes as far as that he is often referred to as the ‘Polish Papinian’ in local literature. He is appreciated on the one hand for his expertise as a jurist and, on the other hand, for his mastery of the art of legal thought and argumentation, and finally for the depth of his legal analysis. In the context of this contribution, however, only the question of his relationship to the pandectism, including in particular his relationship to the university teaching of modern Roman law (pandect law), will be examined in more detail. Wróblewski is repeatedly associated with pandectism in legal historical literature. After all, he argued in favour of the continuation of Pandect lectures (pandect law), after the year 1900, i.e. even as the great epoch of pandectism was already drawing to a close. For this purpose, four texts from the years 1894 to 1916, in which Wróblewski explicitly addressed the problem of the relationship to pandectism or to modern Roman law (pandect law), will be analyzed in more detail.
Special Courts (Sondergerichte) in the General Government (1939–1945) Legal analysis (Konrad Graczyk/Hubert Mielnik) (open access)
(DOI 10.1163/15718190-2023xx12)
Abstract:
This article presents the legal bases of operation and organisation of the special judiciary in the General Government for the occupied Polish territories. Special courts were subject to the policy pursued by the German authorities in the General Government. The German legislation in the gg delegated to the jurisdiction of special courts chiefly such criminal matters that involved safeguarding German interests in the occupied country. Adjudication in such cases boiled down to applying normative acts related to combatting serious (severe) crime or expressly pursued the German policy in the gg, including the exterminatory anti-Jewish legislation. The special courts created by the German occupier in the General Government were not judicial authorities in the traditional sense. The literature on the topic is not particularly extensive. The article would be the first comprehensive study of this subject written in English.
Book reviews:
- S. Geonget, « Le Mariage de l’estude du droict avec les Lettres humaines », L’œuvre de Louis Le Caron Charondas. [Travaux d’Humanisme et Renaissance, 617]. Droz, [Genève 2021]. 557 p. (Luigi-Alberto Sanchi)
- J. Schröder, Recht als Wissenschaft, Geschichte der juristischen Methodenlehre in der Neuzeit (1500–1990), Bd. 1: 1500-1933, Bd. 2: 1933-1990. 3., überarbeitete und wesentlich erweiterte Auflage 2020. C.H. Beck, [München 2020]. xix + 511 p.; xv + 347 p. (Sören Koch)
- Ph. Rygiel, L’ordre des circulations?, L’Institut de Droit International et la régulation des migrations (1870–1920). [Histoire contemporaine, 31]. Editions de la Sorbonne, [Paris] 2021. 349 p. (Raphaël Cahen)
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