JOURNAL: Grotiana XLIV (2023), No. 2 (Dec)

 

(image source: Brill)

Grotius’s Contribution to Commercial and Maritime Law (Dave De ruysscher) (OPEN ACCESS)
First sentences:

On 10 February 2023 a workshop was held at Tilburg University that addressed the theme of Grotius and commercial and maritime law. The thematic issue presented here is the outcome of this event. In four contributions Grotius’s views on the issues of pledge, insolvency, representation and limited liability are analyzed.

Grotius’s Contribution to the Law of Secured Credit (Vincent Van Hoof) (OPEN ACCESS)
DOI 10.1163/18760759-44020003
Abstract:

Over the centuries, Grotius’s writings on onderzetting (rights of hypothec) have been widely cited, particularly in the Netherlands and South Africa. This article investigates the originality and lasting impact of Grotius’s contributions to this field. The article follows the layout of the chapter on hypothecs of Grotius’s Inleiding tot de Hollandsche Rechts-geleertheyd. It examines Grotius’s translation of hypotheca as onderzetting, the structure of his Inleiding, the distinctions between various kinds of hypothec, and contemporary requirements for the creation of hypothecs. It then explores the right to follow encumbered assets into the hands of third parties and analyses the enforcement of hypothecs, priority issues in cases of competing hypothecs, and reflects on Grotius’s influence on Dutch security rights. In summary, although Grotius’s insights were largely derivative, often echoing interpretations of earlier scholars, they illustrate Grotius’s deep understanding of the influence of Germanic and Roman law on Roman-Dutch security rights. Grotius had a lasting impact on legal scholarship and practice because he was the first to provide a scholarly systematization of Roman-Dutch law within the framework of Justinian’s Institutes and firmly placed the rights of hypothec in the book on property rights of his Inleiding.

Grotius and Insolvency (Maurits Den Hollander) (OPEN ACCESS)
DOI  10.1163/18760759-44020004
Abstract:

This article considers Hugo Grotius’s ideas on a specific topic of commercial law, analysing his position and potential contributions to early modern Dutch insolvency legislation. It might be questioned how ‘Hollandic’ Grotius’s interpretations of legal solutions for insolvency as presented in the Inleidinge tot de Hollandsche Rechts-Geleerdheid actually were. Grotius’s treatment of cessie van goede is relatively strict, whereas compositions are hardly mentioned. A rather different image rises from his later work. Here, Grotius displays a more radical view, in specific cases allowing the sovereign to interfere in private property rights and to restructure debts for the common good. It is an inriguing question if and to what extent these ideas can be related to contemporary Dutch insolvency practices.

Representation in Business: Grotius’s Inleidinge and the Ius Commune Tradition in the Low Countries (Wouter Druwé)
DOI 10.1163/18760759-44020005
Abstract:

In his Inleidinge tot de Hollandsche Rechts-geleerdheid, Hugo Grotius wrote an accessible introductory overview of Hollandic law, in which he combined insights from the learned law (ius commune) with the particular law of Holland. The Inleidinge was read by generations of Dutch law students, and would thus become very influential in the Roman-Dutch tradition. This contribution studies how the topic of representation, especially in a business context, was treated in Grotius’s Inleidinge. On the basis of an analysis of the Justinianic Corpus iuris, the medieval ius commune tradition and – especially – early modern scholarship from the Low Countries, it is argued that Grotius’s Inleidinge by and large followed the communis opinio among the learned scholars, although on one important point – namely the acquisition by a third party of a claim on the basis of a stipulatio alteri – Grotius went beyond that communis opinio and, thus, opened the way for a gradual wider legal acceptance of active direct representation.

Grotius and Limited Liability (Dave De ruysscher) (OPEN ACCESS)
DOI 10.1163/18760759-44020002
Abstract:

Grotius’s ideas on proportionate and limited liability, as mentioned in the Inleidinge and De iure belli ac pacis, were novel in comparison to the civilian doctrine of his time. Grotius drew from sources of local law and statutes regarding maritime law but was nonetheless original in his interpretations. Grotius proposed to consider the liability of co-owners of ships (reders, exercitores), who acted as organizers of maritime expeditions, and of others that were participating in these expeditions, as broad. At the same time, their liability was limited to the maximum of the value of the ship and cargo. In this regard, Grotius’s conceptions hinged on a view of a ship’s voyage as engendering a community of risk among all stakeholders. However, in spite of the underlying connections, Grotius did not eradicate all inconsistencies which the originality of his combinations brought forward.

Grotius’s Via Media (Sebastián Contreras Aguirre)
DOI 10.1163/18760759-44020006
Abstract:

Grotius’s theory of the foundations of law and morality follows a sort of middle way between rationalism and voluntarism. Grotius, far from both extremes, defends both the normative force of the will and the directive power of practical reason. On this basis, he explains that reason serves as the formal cause of law and the will as the efficient cause. Now, the command of the will alone is not yet valid as a law. It must conform to reason. Reasoning so, Grotius places himself within the scholastic-Aristotelian tradition. Accordingly, he holds the primacy of reason over the will and defends the eminently practical, i.e., non-mathematical, character of morality and law.

Book Reviews:

• Contract before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619–1695, written by Stephen Bogle (by Matthew Cleary)
• Sepúlveda on the Spanish Invasion of the Americas: Defending Empire, Debating Las Casas, edited and translated by Luke Glanville, David Lupher, and Maya Feile Tomes (by Daniel Schwartz)
• Portraits of Women in International Law: New Names and Forgotten Faces?, edited by Immi Tallgren (by Francesca Iurlarlo)
• Hugo Grotius als Wegbereiter des Menschenrechts auf Asyl und des modernen Rechts zum Schutz geflüchteter Personen vor ernsthaftem Schaden, written by Rainer Keil (by Jacob Giltaij)

Read the full issue here.