CEEOL - Browse Subjects Result

We kindly inform you that, as long as the subject affiliation of our 300.000+ articles is in progress, you might get unsufficient or no results on your third level or second level search. In this case, please broaden your search criteria.

Lex commissoria: from a Forbidden Clause in Roman Law to a (Contemporary) Debtor’s Welcome Relief

4.50 €

Preview

Lex commissoria: from a Forbidden Clause in Roman Law to a (Contemporary) Debtor’s Welcome Relief

Author(s): Marko Sukačić / Language(s): English Issue: 2/2021

The lex commissoria, an agreement under which the creditor assumes ownership of the pledged property if the debtor defaults, was prohibited in the post-classical period of Roman law by the constitution of Constantine in the CTh 3,2,1 (CI 8,34,3). This article explores the possible substance of the lex commissoria in the classical Roman law of pledge as well as Constantine’s motive behind its prohibition, and compares it with that in the contract of sale. The impermissibility of the lex commissoria, as inherited from Roman legal tradition, had persisted in the contemporary Croatian legal system until recently. Under Directive 2014/17/EU, Croatia, as well as all other member states of the EU, transposed the permissibility of such a clause, albeit as limited to consumer housing loan agreements. From this canvas, the concluding remarks juxtapose the Roman with the contemporary lex commissoria and discuss the actual purpose and effect of the said prohibition.

More...

4.50 €

Preview

Actio Publiciana and Mancipatio

Author(s): Adolfo Bautista Cremadez / Language(s): English Issue: 2/2021

Mancipatio was the established way to trade res mancipi (slaves, italic soil and big animals), so if these things were delivered by traditio the transmission was invalid. This distinction disappeared before Justinian's compilation, generalizing the traditio as a mechanism for the transmission of all goods. This work discusses the possibility that the mechanisms for protecting the Praetorian owner (especially the actio publiciana) could have determined the disappearance of mancipatio.

More...

ОТНОВО ЗА АТИПИЧНИТЕ СИНАЛАГМАТИЧНИ СЪГЛАШЕНИЯ В МИСЛЕНЕТО НА КЛАСИЧЕСКИТЕ ЮРИСТИ

Author(s): Luigi Garofalo / Language(s): Bulgarian Issue: 1/2021

From Labeo to Paul, not a few Roman jurists dwelt on innominate synallagmatic agreements, discussing in particular the requirements they had to meet in order to be protected by the courts and through which actions such protection could be granted. The focus of the essay is precisely the reconstruction of their varied thought, sometimes diverging from that proposed by Carlo Augusto Cannata, who in many works explored the theories of the prudentes in contractual matters.

More...

Principiul legalității operelor autorului

Author(s): Nicoleta Rodica Dominte / Language(s): Romanian Issue: 1/2022

In the content of this article we will try to map the fact that originality represents the key element of the legality of artistic creations by invoking both fictional and jurisprudential landmarks. In a metaphorical interpretation, the literary case Mr. K versus Cornichonn highlights, in a fabulistic manner, the amplitude and strength of the authentic originality of a literary creation, providing the value of a judicial symbol. In another context, the jurisprudence outlines the paradigm of the analysis of originality as an essential criterion in acquiring copyright protection.

More...

Right of Pre-emption – Historical Perspective

Author(s): Vlad Ionuţ Savu / Language(s): English Issue: 2/2021

In this scientific approach, we will focus on the historical dimension of the right of pre-emption. This paper is structured in three chapters highlighting the most important historical aspects underlying the right of pre-emption. Etymologically, pre-emption comes from the Latin words pre (before) and emptio (sale). The first notions of the right of protimis appear in Roman law, where property and inheritance are treated as religious derivations. The great French historian Numa Denis Fustel de Coulanges (1830 - 1889), in his work Cité Antique (Ancient City), stated that property appears to be of divine origin.It belongs to a family, which includes the protective gods, the dead and the continuators of the family cult, i.e. those who are alive or those who will be born. Each individual of the family is considered a temporary possessor of the property with the obligation to pass these rights on to the descendants in order to continue the family's domestic cult.

More...

RECEPTUM NAUTARUM AS AN INSTRUMENT FOR INSURING GOODS AND PASSENGERS IN MARITIME TRANSPORT

Author(s): Marija Ignjatović,Aleksandar Đorđević / Language(s): English Issue: 2/2021

In Roman law, the safekeeping of the passenger belongings on board was treated as a special case of a deposit agreement. The ship owner was obliged to take due care of the thing entrusted to him during the transport by ship. Failure to comply with this obligation was the basis of the shipowner's liability for the lost item and legal protection was achieved through a lawsuit actio furti et damni adversus nautas. However, as ship owners (including barn owners and innkeepers) were notorious for often acting in an organized manner with thieves in order to obtain illicit property gains, the praetor introduced another remedy (receptum nautarum) for increasing passenger and goods safety during sea transport. The Receptum nautarum was an informal agreement by which the ship owner, regardless of guilt, assumed responsibility for the damage caused to the items brought on board. It arose as a result of the need, present even today in the conditions of modern law, to obtain insurance coverage for those risks that the subjects cannot bear on their own. Hence, this type of legal protection, created in Roman law, is seen as a forerunner of modern insurance of goods and passengers, of the participants in the maritime enterprise.

More...

Predictability of judicial decisions and foundations of European law: legal security in Roman law beyond the subjection of the judge to the statute

Author(s): Antonio Angelosanto / Language(s): English Issue: 2/2022

Objectives:It is believed that in the post-modern age the legal security and the predictability of judicial decisions have entered a crisis because the principle of the judge's subjection to the statute is also in crisis. The Roman law could teach us that the legal security and the predictability of judicial outcomes have experienced a pre-modern age where they were not linked to the modern principle of the judge’s subjection to the statute but were instead linked to the principle of unambiguous, clear and precise wording of the legal paradigms which the judge was subjected to in order to deliver his judgment.Material and methods:According to the Roman foundations of the European law, the institutions of the European Union have drawn our attention back to the necessity of unambiguous, clear and precise legal text.Results:The Latin sources analysed here show the use of the formulae («precise, strict, and simple») and not of the statutes as a guarantee of predictability of judgement outcomes and as a control of the sentences of the judges. We may say that the judge in the Roman formulary procedure was subject to the magistrate's formula and not to the statutes, because the relationship was between the judge and the formula and not between the judge and the statute.Conclusions:In conclusions, the current crisis of the statute should not necessarily lead us to abandon the need to guide the judges’ decisions with clear, precise and unambiguous legal paradigm.

More...

ОБЈЕКТИВНА ОДГОВОРНОСТ У РИМСКОМ ПРАВУ

Author(s): Mirjana Bogunović / Language(s): Serbian Issue: 36/2014

In this paper, the author tries to differentiate the cases in which the responsibility for the resulting damage is held regardless of the guilt of the perpetrator, i.e. the existence of intent or inattention, i.e. negligence, and to prove that objective responsibility in Roman law is not present as a burden of the past and primitive animosity, but as a casuistry that certainly indicates to the mature legal reasoning of Roman lawyers and praetors. Although the Romans did not recognize the possibility of representing other persons for a long time, they recognized noxal responsibility from the earliest times as a legitimate form of responsibility for others. According to the cases of objective responsibility mentioned in the paper, they did not leave a significant mark on modern legislation, they are certainly intriguing due to their original legal solutions and deserve more detailed theoretical considerations.

More...

MANDATUM И IUSSUM

Author(s): Mirjana Bogunović / Language(s): Serbian Issue: 37/2015

The contested legal nature of iussum produces a series of doubts about the place and importance of that institution in the system of Roman law. Is iussum an institute of public law or is it from the domain of private law; whether it has the meaning of power of attorney or subsequent approval; does it regulate individual situations or does it have the character of a general authority to act? A particular problem that appears in the study of this institute is the discernment of the difference between the mandate and the iussum as an institute that achieves the same purpose. Both institutes represent legal instruments through which other persons commit themselves to certain actions in favor of the principal. To what extent the iussum is similar to the mandate and how much is autochthonous, the author tries to figure out in the paper based on the analysis of the texts of Roman jurists from the

More...

TRANSACTIO В ПРОЦЕСИТЕ ЗА DELICTA И CRIMINA В РИМСКОТО ПРАВО И СЪВРЕМЕННАТА МЕДИАЦИЯ В НАКАЗАТЕЛНОТО ПРОИЗВОДСТВО. ПРАВНОИСТОРИЧЕСКИ РАЗМИСЛИ ОТНОСНО ВЪЗСТАНОВИТЕЛНО ПРАВОСЪДИЕ

Author(s): María del Carmen Lázaro Guillamon / Language(s): Bulgarian Issue: 1/2023

Penal mediation is the new paradigm that current penal doctrine tries to integrate as innovation in criminal proceedings from the socalled principles of restorative justice. In this context, the Roman experience has been forgotten, as if with innovative penal mediation is intended that the parties build an eventual final agreement of economically, emotionally... restoration, the agreement that occurs in the context of the prosecution of a criminal offense was possible in the field of delicta and crimina of Roman law. The parties could agree through the agreement ending the dispute which was originated in this criminal context. Such basis may, likely, be useful for the intended integration of penal mediation in the current criminal justice system. Thus, the essential interest of this work is the analysis of Roman legal sources which end the dispute through pactum, transactio, when the cause of litigation is a delitum or a crime. They also get a historical-critical view of the management of penal mediation procedures.

More...

A New Possible Interpretation of Digest of Justinian D.9.2.27.14: A Contribution to the Study of Precursors of Environmental Law in Roman Law

Author(s): Samir Aličić / Language(s): English Issue: 2/2023

The paper addresses the meaning of the Digest of Justinian 9.2.27.14, which deals with the case of damage caused by contamination of the soil by weeds. The author of this paper concludes that neither Celsus nor Ulpian had any doubt that in the case of the contamination of soil an interdictum quod vi aut clam could be brought, but only within a period of one year following the damage. This interdict is granted to either the owner, and, if the land was subject of the contract of lease, to the tenant (lessee), but only to one of them. Furthermore, an Aquilian action could also be brought, but only one of these two legal instruments could be used. The lawsuit could be brought both by the owner or by the tenant. The actio is granted to both the the owner and the lessee, not as an actio directa, but as an actio in factum ex lege Aquilia. The reason for this cannot be established with certainty.

More...

13 NOWELA JUSTYNIANA O PRETORACH LUDU

Author(s): JAROSŁAW ROMINKIEWICZ / Language(s): English Issue: 1/2023

The article is devoted to Novel 13 of Justinian I “On the praetor of the people,” issued in 535 A.D. It includes the first Polish translation of the novel with a brief commentary. In the constitution in question the emperor created a new magistracy — the praetor of the people (praetor plebis), who replaced the existing praetor of the vigiles (praefectus vigilum). A new magistracy was to be directly responsible to the emperor, and not — as was his predecessor — to the urban praefect ofConstantinople. The praetor of the people was to serve as a policing and judicial magistracy in cases concerning thefts, homicides, adulteries, kidnappings and other crimes of similar character. He was also responsible for protection of citizens and their property against fires.

More...

NABYCIE PRZEZ OCCUPATIO POSIADANIA POŻYTKÓW NATURALNYCH ZIEMI I PRODUKTÓW ZWIERZĄT WEDŁUG TEORII LEONA PINIŃSKIEGO. CZĘŚĆ 3

Author(s): Dagmara Skrzywanek-Jaworska / Language(s): Polish Issue: 129/2023

Background: The aim of article is explore the acquisition of possession of the natural benefits ofthe land (Besitzerwerb an Feldfrüchten) and animal products (Besitzerwerb an Thierprodukten)according to the Leon Piniński’s possessio theory. This is the latest in a series of articles devotedto the considerations of the Polish Romanist on the acquisition of possession of movable thingsby occupatio.Research purpose: One research purpose is to understand the concept of possessio developedby Piniński in terms of the economic connection between man and a thing. The other researchpurpose is to characterize the scientific profile of the Polish Romanist against the background ofthe activity of the Pandectists and other representatives of German-speaking legal scholarship.Methods: The article uses the historical and legal method.Conclusions: The conclusions of the two preceding articles remain valid. They may besupplemented by a general proposal. Pininski’s scholarly activity against the backdrop of 19thcentury German-speaking legal science, which was dominated by Pandectists, deserves theattention not only of Roman law studies, but also of the dogmatists of the law in force. The author,whose work is appreciated and quoted in European literature, remains almost unnoticed in Polishdoctrine. But any alternative theory on which the system of the law in force is based – in this casethe possessio theory – is still a source of scientific inspiration, not just for the legal historian.

More...

Mulier accusatrix in the Laudatio Turiae

Author(s): Maciej Jońca / Language(s): English Issue: 1/2024

Legal sources relating to the imperial period (especially Justinian’s Digesta) show that Roman criminal law allowed women to bring criminal charges only in exceptional situations. On the other hand, to prosecute the murderer of a relative was considered a sacred duty for the members of the victim’s family. Any negligence in this area was perceived as wicked behaviour and detrimental to the memory of the deceased. The obligation to bring a criminal charge, symbolically identified with vengeance (ultio, vindicta), rested with men. The surviving funeral eulogy known as the Laudatio Turiae shows a very different pattern. Its content shows that at the end of the first century BC, it was a woman who accused the murderers of her parents in court and brought about their conviction. The oration makes it possible to initiate an interesting discussion on the real importance of women’s voice in the criminal process and on the social stereotypes that limited their participation in public procedures.

More...

47. nowela Justyniana

Author(s): JAROSŁAW ROMINKIEWICZ / Language(s): Polish Issue: 336/2023

The following text is dedicated to 47th Novel of Justinian. It comprises of the Greek text of the Novella along with its first Polish translation and a brief commentary. In this constitution, the Emperor introduced a new pattern of dating documents that were in legal circulation. Specifical- ly, he decided that all documents and court records were henceforth to be dated according to the consecutive year of the currently reigning Emperor. This method of determining the date was to take precedence and override dating practice according to consulship, indiction or any other local or provincial customs.

More...

SENATUL, INSTITUȚIE POLITICO-CONSTITUTIONALĂ FUNDAMENTALĂ ÎN STATUL ROMÂN

Author(s): Aurelia Gidro / Language(s): Romanian Issue: 2/2021

The Senate, throughout the history of the ancient Roman state, represented a collective body involved in important state problems throughout all three historical stages, even though its influence was, in some periods, diminished by the autocratic tendencies of some Roman rulers.The existence of the Senate first embraced the form of a „counsel of the elders”, and then became a true axis of political life until the end of the Republic. During the Empire, although the political importance of the Senate is steadily decreasing, the senatorial families preserved their prestige, eventually forming a genuine senatorial order placed in the service of the Roman state.Although the Imperial Senate was systematically undermined by the personal authority of the Roman emperors, it can be argued that it has remained forever one of the most important organs of power in ancient Rome.

More...

The novella (37) of Justinian of 535 and its anti-Judaic character

Author(s): Arkadiusz Urbaniec / Language(s): English Issue: 1/2024

The considerations contained in this article concern legal regulations directed against the followers of Judaism, included in novella 37, issued by Emperor Justinian in 535 and in force only in the prefecture praetorio of Africa. Controversies in the historical discourse are caused by both the reasons for the introduction of a restrictive law, which has no equivalent in other parts of the Roman empire, and its actual reception. The conducted analysis questioned the appropriacy of using the passage from De aedeficiis of Procopius of Caesarea as an example of the practical application of this law and, based on the epistolog- raphy of Pope Gregory, determined the hypothetical terminus ante quem of its validity.

More...

ВЛИЯНИЕТО НА РИМСКОПРАВНАТА РЕГЛАМЕНТАЦИЯ НА РАЗПОРЕЖДАНИЯТА ПОРАДИ СТРАХ ВЪРХУ ФОРМИРАНЕТО НА КОНЦЕПЦИЯТА ЗА СУБЕКТИВНО ПРАВО

Author(s): Emilia Ganeva / Language(s): Bulgarian Issue: 1/2023

The creation and practical application of protection of persons who dispose due to fear in Roman law, was an intuitive step towards the theoretical understanding of the concept of subjective right, which took shape centuries later.

More...

DEVELOPMENT OF CONTRACT FORM IN ROMAN LAW ILLUSTRATED BY STIUPULATION AS A VERBAL CONTRACT

Author(s): Nina Kosanović / Language(s): English Issue: 1/2024

As the first and fundamental verbal contract in Roman law, stipulation (stipulatio) emerged and developed under the influence of various socio-economic conditions that shaped the development of the Roman state. Originating in pre-classical Roman law under the influence of religion and customs, this verbal contract was subject to changes, such as acquiring the characteristics of a written contract during the period of classical Roman law and experiencing the most significant changes during the period of post-classical Roman law. By observing and analyzing the development of stipulation as a verbal contract, we can observe several general tendencies in Roman law. Thus, we can eventually respond to the following question: how the strict formalism of Roman contract law gave way to the primacy of causality, i.e. how the process of transition from strict formalism to consensualism and the transition from the oral to the written form of contract conclusion took place.

More...

PRAWNICZA KOINÈ

Author(s): Maciej Jońca,Verena HALBWACHS / Language(s): Polish Issue: 131/2024

PRAWNICZA KOINÈ

More...