Pożyczka morska w zachodniej tradycji prawnej
Sea loan in the western legal tradition

Summary/Abstract: Researches on the sea loan in Roman law have led to the question of its fate in the western legal tradition, and its actuality for the legal science. Following the history of pecunia traiecticia from medieval times until the nineteenth century, it is fair to talk about the creation of a common framework of sea loan, which, in practice, completely relied on the achievements of Roman legal thought. Ancient heritage is evident from the name itself. Fenus nauticum, sometimes written foenus nauticum, pecunia traiecticia and even usura maritima were constantly present in glosses, commentaries and textbooks of ius civile and common law. They remained in legal science, even if much more popular have become a contract of insurance, bottomry loan or respondentia, different types of contracts that aimed to be a continuation of ancient sea loan. With the full awareness legal tradition preserved sea loan and in order to provide the dogmatic distinction, it found new names for other similiar but not the same contracts. For historical and comparative legal perspective, much more important, however, is the influence of the Roman conceptual framework on the structure of sea loan itself. Undoubtedly, the greatest hero of these ages has been the expression pretium periculi. Together with another ancient formulation si modo in aleae speciem non cadat, they were constant points of reference in the legal tradition. It turns out that not only the Romans feared that the sea loan does not become an convenient opportunity for speculation, or maybe even a way to circumvent the limits for interest. Gregory IX, decretalists, representatives of the usus modernus, nineteenth-century French doctrine and finally jurisprudence and doctrine of English and American common law, emphasized that such an agreement is binding on the parties in so far as it is circumvention of interest or „pure gambling”. In this form sea loan remained an important solution in the western legal tradition that has preserved its autonomy in relation to other types of contracts until the end of the nineteenth century.

• Details
• Contents