JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/The Legal History Review XCI (2023), No. 3-4

 

(image source: Brill)

Articles

Zur Entmündigung wegen Wahnsinn und Verschwendung im römischen Recht (Christine Lehne-Gstreinthaler) [OPEN ACCESS]
DOI 10.1163/15718190-20233405
Abstract:

This article is devoted to the incapacitation procedure for insane and profligate persons in Roman law. On the basis of literary and legal sources, an attempt is made to explain the incapacitation procedure in more detail. Special attention is given to the concept of interdiction and the question of involvement of physicians in such proceedings.

Origen de la teoría sobre la Paráfrasis del Pseudo-Teófilo (Fernando Reinoso-Barbero)
DOI  10.1163/15718190-20233404
Abstract:

Origin of the theory about the Pseudo-Theophilus’ Paraphrase. – The sudden and abrupt change in Contardo Ferrini’s stance towards Theophilus, is attributed here to the misinterpretation of a letter sent to him by Zachariä von Lingenthal on January 31, 1884, just as his magnificent edition of the Paraphrase was on the brink of publication. This circumstance compels him to hastily modify and adapt its Prolegomena to his new theory, leading to significant unforeseen consequences. Furthermore, due to the rush, he also overlooks making modifications in other sections of his edition where, for this reason, Theophilus is still acknowledged as the author of the Paraphrase.

Testamentary law in late Medieval Dubrovnik A case study of the testament of notary Thomasinus de Savere (1284) (Henrik-Riko Held)
DOI 10.1163/15718190-20233411
Abstract:

This paper explores testamentary law in late medieval Dubrovnik (Ragusa) by analysing the testaments made by notary Thomasinus de Savere, working at Dubrovnik, 1277–1286. De Savere was an educated notary, originating from Reggio Emilia in Italy. He greatly contributed to the spread of doctrinal elements of ius commune in Dubrovnik. In determining the reach of his influence on testamentary law, I will first examine inheritance law in Dubrovnik at the time, followed by an analysis of the testaments De Savere composed for the local population. I will then compare these testaments with the testament De Savere made for himself (1284). The latter differs from the testaments composed for the locals, as it is doctrinally in line with the latest developments of the ius commune. I will discuss the possible reasons and relevance of this difference.

Modest building blocks The state of the art of monopoly thinking at the turn of the Middle Ages and the Early Modern Period in the works of lawyers and theologians (Wout Vandermeulen) 
DOI 10.1163/15718190-20233401
Abstract:

This article seeks to contribute to the growing current of legal historical literature on early modern commercial law. It examines the topic of monopolies and their prohibition in the Codex of Justinian (C. 4,59,2). Its purpose is to explore one aspect of the renewed interest in the topic among lawyers and theologians in the early 16th century, when trading corporations and authorities worldly and ecclesial caused a proliferation of monopolies. The aspect in question is the source material from the legal and theological tradition that early modern authors had at their disposal. Through analysing the printed editions of medieval works from Roman and canon law and from theology, this contribution sketches an image of scattered attention and a strong focus on guilds until the very last years of the Middle Ages. Only after 1450 do the roots of the notions that would dominate later debates come to the fore, and near exclusively in the works of moral theologians such as Konrad Summenhart.

Testamentary practices and village courts in the Bailiwick of ’s-Hertogenbosch (c. 1470-1550) (Mark Vermeer)
DOI 10.1163/15718190-20233409

Abstract:

This paper discusses the origin, function and uses of schepentestamenten, acts of last will registered before municipal courts of aldermen. From the second half of the fifteenth century, peasants and townsmen found recourse to these courts for the registration of acts of last will. At first these acts were primarily contracts among spouses mutually conveying to each other the property upon death, but especially after the secularisation of the notarial profession in 1531 the number of pious bequests and religious beneficiaries greatly increased. In general, three strategies prevail in the employment of the last will: overruling the customary dispensation to the surviving spouse and providing this person with additional resources, specifying the position of each of the children (especially when some were illegitimate or had received by life), and preventing loss of wealth from the family. For the legal instruments, the aldermen resorted to their standard formulary, although attuned to the peculiarities of the last will. The trust and authority the courts of aldermen enjoyed, in combination with their executive clout in enforcing compliance, allowed them to discard various formal elements required in notarial instruments, while also making them popular institutions for the registration of last wills.

L’élaboration d’une normativité en droit des gens: le recours au discours historique dans le De legationibus d’Alberico Gentili (Emilie Colpaint)
DOI 10.1163/15718190-20233407

Abstract:

The development of normativity in international law: the use of historical discourse in Alberico Gentili’s De legationibus. – The aim of this article is to examine the sources used and the method employed by Alberico Gentili in his De legationibus, to elaborate a norm for the law of embassies. Although legal sources feature prominently in this treatise, the majority of them are derived from a variety of sources from Antiquity (historians, philosophers, rhetors, poets, etc.). Alberico Gentili mainly uses historical sources, and more specifically the exemplum, in his treatise. By mobilizing historical exempla alongside legal sources, the jurist created a rational normative system capable of responding to the diplomatic challenges of the sixteenth century brought about by constantly evolving practice

The legal personality of foreign states in civil law: l’affaire Zappa and the bequest of the Marquise du Plessis-Bellière (Laurens van Apeldoorn) (OPEN ACCESS)
DOI 10.1163/15718190-20233408

Abstract:

This article traces the doctrinal debate on the civil legal personality of foreign states occasioned by two famous legal cases during the closing decade of the nineteenth century: the protracted conflict between Greece and Romania following Evangelis Zappa’s bequest of immovable property located in Romania to the Greek state for the purpose of resurrecting the Olympic Games, and the contested will of the Marquise du Plessis-Bellière which named Pope Leo xiii as legatee of real estate located in France. As Ernst Rabel and others have thought, the debate confirmed the scholarly consensus that the recognition given to a foreign state according to the rules of public international law, implies recognition of its capacity in private law matters. The objective of this article is to reconstruct the considerations that led to this apparent consensus, thus helping to facilitate an assessment of the persuasiveness of those considerations

Book reviews

• M. Graziadei and L. Zhang (eds.), The making of the civil codes, A twenty-first century perspective. [Ius Gentium: comparative perspectives in law and justice, 104]. Springer, [Singapore 2023]. xv + 412 p. (Alain Wijffels)
• S. Lepsius (ed.), Juristische Glossierungstechniken als Mittel rechtswissenschaftlicher Rationalisierungen, Erfahrungen aus dem europäischen Mittelalter – vor und neben den großen ‘Glossae ordinariae’. [Abhandlungen zur rechtswissenschaftlichen Grundlagenforschung, Münchener Universitätsschriften, Juristische Fakultät]. Erich Schmidt Verlag, [Berlin 2022]. vi + 333 p. (Jan Hallebeek)
• U. Babusiaux, Chr. Baldus, W. Ernst, F.-S. Meissel, J. Platschek [und] Th. Rüfner (Hrsg.), Handbuch des Römischen Privatrechts, Bände i-iii. Mohr Siebeck, Tübingen 2023. xxxiv + 3050 p. (Bd. i, ii); xxxii + p. 3051-3673 (Bd. iii) (A.J.B. Sirks)

Obituaries

• In memoriam Johannes Henricus Antonius (Jan) Lokin, 1945–2022 (Bernard H. Stolte)
• In memoriam Hans van de Wouw, 1939–2023 (G. Dolezalek)
• In memoriam Eltjo Johannes Hidde Schrage, 1945–2023 (Harry Dondorp)

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