Real Contracts in Roman Law and Their Development in Positive Law with Special Emphasis on Loan Contracts (Mutuum)

Author(s): Dren Hilmi Dauti / Language(s): English Issue: 1/2021

This paper has analyzed Real Contracts in Roman law and their development in positive law in Kosovo with particular emphasis on loan contracts. Real contracts have been analyzed analytically - their types and importance focusing on the review of the loan contract, the characteristics, rights and obligations of the contracting parties - lenders and borrowers. The focus has been put on the specific consideration of this very important contract for the economy of Kosovo. The key significance of these contracts is that they enter the ranks of the oldest legal contracts. The legal rules for the loan contract have been recognized since Roman law. This contract in Roman law was a real contract, a feature that has remained until the contemporary law but with few changes. The legal rules for this contract are found in the Law of Hammurabi which recognizes the loan in cash with interest and without interest. The loan, or mutuum, is the oldest and most important real contract of Roman law. As an unprotected legal relationship has existed since ancient times and relied on the friendly giving of a certain amount of replaceable and consumable items to the debtor’s property, who committed to return the same amount of the same items to the creditor after the contracted deadline. The review was conducted based first of all on Roman Law and then focus shifted to the national legislation of the Republic of Kosovo, which is currently in force, but often focusing on the problems that exist in our practice. The loan contract is of particular importance in legal circulation considering its purpose, whereby the lender’s good intentions towards the borrower prevail. The loan contract (mutuum) in the positive law of Kosovo is regulated by the Law on Obligations, 2012.

Historical-Legal Aspects of the Influence of the Canons in the Treatment of Servitudes in Kosovo

Author(s): Berat Aqifi,Ardian Emini / Language(s): English Issue: 1/2021

In this paper we will analyze the institute of law services in a broader historical-legal point of view, seeing it closely related to the principles of law in general, and Albanian customary law based on the Canons that acted in the face of a very large influence of the Roman law of that time, of the Byzantine Empire (“Nomos Georgikos”), of the laws of Ottoman law (“Sharia law”), which exercised their activity, and which had for consequently their influence in the areas where Albanians lived. Given the importance of the servitude as an integral part of the right to property, the circumstances in which it was created, the way it evolved since ancient times influenced by Roman law and the Albanian Canons, where you learn to important also in our law in particular, although it was not created by the right of ownership, it became an important derivative of it. From this paper we will try to give some answers due to some ambiguities that have influenced to date in the historical legal aspect in the right of ownership in our country, regarding the shortcomings of the legal framework of real rights on foreign items to provide solutions to numerous cases and problems that arise in practice from their implementation influenced by the Albanian customary law transferred through the Canons. Of particular importance are the legal norms in the civil field, especially in the field of property rights and inheritance created in certain historical and geographical circumstances and conditions, where this right acted, also influenced the preservation of some features and elements of national nature. , in the face of the risk of assimilation and the numerous influence of foreign law. Of course, special attention is paid to the “Canons”, as part of a special extension and value of Albanian customary law.

Dreptul între formă, conţinut şi discurs politic. Despre o receptare ştiinţifică a dreptului roman în România.

Author(s): Tudor Avrigeanu / Language(s): Romanian Issue: 3/2019

Der vorliegende Beitrag versucht, eine Erklärung für das Fehlen der sog. Wissenschaftlichen Rezeptio des römischen Rechts aus der rumänischen Rechtsgeschichte und Rechtswissenschaft. Dafür wird die Unterscheidung zwischem Form und Inhalt des Rechts in verschiedenen Zusammenhängenn erörtet, und schließlich die strukturelle Ähnlichkeit zwischen der Schutzfunktion der rechtshistorischen Lehre von der wissenschaftlichen Rezeption des römischen Rechts in der Zei des Nationalsozialismus und der Aufbaufunktion der rechtswissenschaftlichen Lehre von den sog. Konstanten des Rechts in Bezug auf die Konstruktion freiheitlicher Rechtszustände unter dafür günstigen politischen Bedingungen während der kommunistischen Zeit.

BLACK SEA – A SHOWCASE OF LEGAL AND MORAL SYMBOLS DURING ROMAN ANTIQUITY

Author(s): Valerius M. Ciucă / Language(s): English Issue: 2/2021

The science of law, so jus-naturalistic and metaphysical as such, represents by definition a collection of metaphors and symbols with a moral and especially a juridical signification. The semiotics of law constitutes avant la lettre a field of excellency in the mentality of many Roman jurists, jurisprudents (philosophers of law), judges, and many other humanists (as Cicero, Seneca or Ulpian, etc., and a plethora of writers and poets). In this respect, we are looking for the Roman manner to find symbols of human connotations starting with the metaphor Mar Nero, after the Greek terms, Pontus Axeinos & Pontus Euxeinos.

IGNIS, INCENDIUM, FORTUITUS CASUS – D. 19, 2, 9, 3 I OPASNOST ŠTETE OD POŽARA KOD LOCATIO FUNDI

Author(s): Tomislav Karlović / Language(s): Croatian Issue: 3-4/2021

The paper discusses the issues of the contents and the significance of Ulpian’s text D. 19, 2, 9, 3 within a wider context of allocation of risk in lease agreements and the place of fire, conflagration (incendium) among the different forms of vis maior in Roman legal sources. Considering the problem of subsequent impossibility of performance in locatio conductio (rei), D. 19, 2, 9, 3 stands out as the one mentioning periculum in relation to locatio fundi, however, it is burdened by different interpretations. The analysis in the article starts with the D. 19, 2, 9, 3 and then continues setting it in the context of other related texts in which the Roman jurists dealt with the problem of fire in lease agreements. The conclusion is drawn on the probable changes in the text as well as on the function of the term fortuitus casus in the line of the texts dealing with fire. It emphasizes the connection between fire (ignis) and conflagration (incendium) marked by the words fortuitus casus, which would show a differentiated approach to incendium as a form and an example of vis maior.

SOME REMARKS ON SLAVE-SELLERS’ LIABILITY UNDER ROMAN LAW

Author(s): Marko Sukačić / Language(s): English Issue: 1/2022

This article discusses the matter of the liability of professional slave-sellers for non-disclosure of a material defect to the buyer under Roman law. After first examining the professional sellers’ representation and image as reported in the relevant sources, the article reviews the material defects of slaves for sale through the lens of jurists’ and other relevant authors’ discussion on morbus et vitium, and how the two relate to the sellers’ claims in regard to the slaves they are selling. Next, the article provides an overview of the buyer’s legal protection in the event of a found defect or false advertising, specifically in the form of actio redhibitoria. By analyzing legal and other relevant ancient Roman sources, this article probes the fine line between allowable sales talks and legally binding sales promises on a number of peculiar slave sale contracts under Roman law. Lastly, the article argues which party to the sale contract had the less favorable position in terms of carrying the risk of the unintentionally undisclosed material defects in the classical Roman law and explores the point at which the limits to advertising end and the seller’s liablity begins.

FORUM ROMANUM - РИМСКА ДРЖАВА, ПРАВО, РЕЛИГИЈА И МИТОВИ

Author(s): Dragana Knežić-Popović / Language(s): Serbian Issue: 1/2006

ЦИЦЕРОНОВО СХВАТАЊE ПОЛИТИЧКИХ ВРЛИНА

Author(s): Dragica Vujadinović / Language(s): Serbian Issue: 1/2007

This text is devoted to the political-philosophical legacy of Cicero, connected with his ideas about the best political order and importance of the best legal system, as presented in De republica and De legibus. However, the special focus is put on his conception of political morality, as considered in his book De officiis. There are political virtues conceived as the basis of civic duties, which demand from all citizens (and especially from the most virtuous ones) to devote their life to the politics and governance of the state, and to do that in a wise way and in favor of the common good. Another Cicero's belief is that a well ordered political and legal system contributes to the development and promotion of political virtues and civic duties of the citizens. The author of the text mentions two motives for considering this topic: the first one is political-philosophical, theoretical in its character; the second one is concretehistorical and practicalpolitical, i.e. directly linked with the Serbian political practice. Namely, the author intends to remind the intellectual and political elites and the public in general in Serbia to the essential importance of practicing politics in accordance with political morality, political virtues and civic duties, and primarily in favor of the common good instead of in favor of the mere personal interests or particularist benefits.

Проф. др Драгомир Стојчевић, проф. др Анте Ромац: Dicta et regitlae iuris - латинска правна правила. изреке и дефиниције („Саврсмена администрација“, Београд)

Author(s): Ljubomir Iv. Jović / Language(s): Serbian Issue: 4-6/1998

УГОВОР У КОРИСТ ТРЕЋЕГ У РИМСКОМ ПРАВУ

Author(s): Đorđe Nikolić / Language(s): Serbian Issue: 1-3/1998

ЗАКОН УРСОНЕ

Author(s): Antun Malenica / Language(s): Serbian Issue: 4-6/1996

The author deliberates upon the subject of the Law (statute) of Ursone, the city of which was attached to the cities-colonies of the Roman citizens by Gaius Julius Caesar in 44 B.C. After briefly reviewing the contents and systematics of the Law, the author points to the fact that the statute contains only public law, exclusively the provisions regulating relations in Ursone. On the ground of the aforementioned, the author draws three conclusions, as follows: 1) That the division of law into public and private, discoursed upon by the classical jurist Ulpianus, has been crystallized already in the period of the Republic and that it has been observed in legislative practice, although the post-classical codifications do not point to the fact, including herein Justinian codification as well. 2) That within the public law corpus jurists distinguished between general rules of law and local communities public law. 3) That Romans have regulated the position of colonies in their provinces in a very systematic way, consequently producing laws and municipal statutes in the, even todays, true sense of the word. Through the analysis of the preserved provisions of the Law the author conveys the picture of the colony social structure, its income, organization of power, legal proceedings and municipal matters. In reference to the power organization, the author finds that it has been established in the spirit of the Roman constitutional tradition of the period of the Republic, meaning that, contrary to Rome, where one man has been the holder of power from Caesar thereafter, provincial colonies and municipalities have been governed by local aristocracy during the principale period. It is the author’s opinion that this formula, according to which central power is held by an individual whereas local power is held by aristocracy, has provided several centuries of prosperity throughout the vast Empire areas. By analyzing colony law, the author explains the difference between the Roman and contemporary perceptions of public law, emphatically setting forth that owing to that difference modem categories, such as, for instance, criminal law and criminal act, should not be sought after in such laws.

О САДРЖИНИ ПОЈМА „LEX” У РИМСКОМ ПРАВУ

Author(s): Žika Bujuklić / Language(s): Serbian Issue: 4-6/1996

The terni lex belongs to the oldest language heritage of the ancient Rome, representing one of the fundamental notions of Roman law throughout its entire history. To the present-day it has been retained as such in Romanic languages in the roots of the words denoting the notion of “law”. The author points to numerous etymological explanations of the term lex and asserts that they do not provide a sufficiently solid basis for reliable conclusions concerning the original meaning of this notion. The ancient sources testify to the fact that the area of application of the term lex in Roman law is very wide and that this pluralism provides a relatively diverse picture in which it is difficult to establish certain order, either dogmatic or historical. However, since the times of Rome to the present-day, it has not hindered legal theoreticians from persistently subjecting that vital diversity to the rigid rules, witty conceptions and numerous classifications, trying to impose logic there where it is non-existent in reality. The bulk of the work is devoted to the polemics concerning views of A. Magdelain, who believes that the archaic lex may be recognized on the ground of the formal-language analysis itself of a certain norm, i.e., its imperative expression style. However, the author of the article points both to the weakness of such methodological approach and to the inadmissibility of conclusions derived through that approach. The author believes that it is possible to seize the contents of the notion of lex only by means of a prior analysis of concrete social relations, because law has come into being in order to regulate them. Short of that social dimension the notion of law is being turned into an abstraction deprived of a more profound connection with the reality itself.

IUS QUIRITIUM И ПОСТАНАК РИМСКЕ ВИНДИКАЦИЈЕ

Author(s): Miroslav Milošević / Language(s): Serbian Issue: 1-2/1995

Although vindication is a specificity of early Roman law, significant for the creation of modem notion of absolute rights, its origin is not sufficiently known. Inadequacy of the existing conceptions in this matter is to quite a degree due to lack of adequate attention to the introductory formula of vindication, where parties invoke the ius Quiritium. That this phrase is only a reference to the existing law is not supported by authors who dedicated special studies to this subject. According to them ius Quiritium was rather a kind of legal ground. After stating arguments for such an interpretation and an analysis of legal acts presumbly related to the above term the author concludes that ius Quiritium in ancient law is probably a term applied to decisions of Roman community, as a rule - assembly, on instituting particular rights or status (i.e. granting of land by way of adsignatio, distribution of booty, freeing of slaves or granting citizenship). Since these procedures were at the time of forming of the old ius civile (before the XII Tables) in the middle of social conflicts, the author considers that the legisactio Sacramento in rem originated through deliberate effort of interpreters, in order to provide a mechanism of protection for relations new in the legal system. At first vindication does not protect a right as such but the individual legal situation established by an act of the community. Only after the development of law and in concordance with the needs of the late Republic, vindication came to be a regular procedural means.

SOCIETAS I CONSORTIUM - ПОРЕКЛО КЛАСИЧНОГ ОРТАКЛУКА

Author(s): Milena Polojac / Language(s): Serbian Issue: 6/1992

The origin of classical contract of partnership is a controversial question. Continuous discussion is provoked first of all by scarcity of sources. In addition, the very legal nature of the contract, with interlaced economic, social and ethical elements, as well as great variety of types of partnership point at the complexity of the origin of that institute. The archaic Roman institute of consortium was influential in instituting consensual societas, but the weak point in this respect is that so-called consortium theory connected the origin of societas directly and exclusively to consortium. However, if consortium is understood, through available sources, and especially new Gaius’ fragments, as well as while analyzing historical-comparative and sociological achievements - as a Roman variety of great family cooperative, then this archaic institute could not be considered a direct source of the consensual partnership. Their essence is different and the circumstances are contrary' which are prerequisites for the existence and development of these institutes. On the other hand, the legal regime of partnership consists of many solutions based on ius fraternitatis - which may be ascribed to the influence of consortium, but to the role associations in general had in ancient societies as well. In case of the widest form of partnership, however, relating to all property (societas omnium bonorum), where the influence of consortium is obvious, the possibility is not excluded of a direct relationship between these institutes.

RES MANCIPI У АЛБАНСКОМ ОБИЧАЈНОМ ПРАВУ

Author(s): Milutin Đuričić / Language(s): Serbian Issue: 2-3/1992

In Roman law there exists a classification of property into res mancipi and res nec mancipi. The author studied this classification at the Albanian population in Kosovo and Metohia, where there still existed ancient forms of many legal institutes from the past. The above two kinds of property are found by the author to exist in the form of gjë dorëznari and gjë ipa dorezttari in Albanian folk law. A property (thing) is not a res mancipi according to its natural physical properties, but becomes such in the process of concluding, execu tin and protection of a firm contract, which is guaranteed by meand of the fides. And fides takes place by sponsoring and mancipatio. A sponsor is a free man who is responsible by pledging his life for the specific obligation relationship between the one transferring the right and the one acquiring it. He is the one preserving the fides (trust) between distrustful parties in the process of creation, execution and protection of every’ obligation. The sponsor is called in Albanian dorzon both in the procedure of concluding and of execution and protection of the contract. There exist in Roman law several terms concerning the same person depending on the function performed by such person: at the moment of conclusion, he is a sponsor, at the time of execution, he is a praes, while in his protective function he is called pretor. This custiodian of firm faith settles all disputes concerning the res mancipi. The trade in res mancipi is absolutely sure because the sponsor guarantees by his life for the obligation of the debtor. Mancipatio is a recommended form of the transfer of the property (thing): out of the hand of the one transferring it to the hands of the sponsor - in order for the latter to hand it over to the one acquiring it. Even today the Albanians effect the transfer of property through "three hands" (the one transferring - to zon - the one acuquring). This is a way of their protection against unilateral breaking of contract, non-fulfilment of the obligation stricti verbis, eviction and transforming the contract into a criminal offence. The phenomenon of res mancipi finds its origin in the tribal society, where a sponsor as a man of mutual trust, replaces the protection subsequently provided by the mechanism of state power. 'Гће procedure of sponsio and mancipatio prevents murders and blood revenge (vendetta) in distrustful tribal communities.

УГОВОР О ГРАЂЕЊУ У РИМСКОМ КЛАСИЧНОМ ПРАВУ

Author(s): Jelena Danilović / Language(s): Serbian Issue: 1-3/1991

The contract of construction has only, recently, in the countries of European continental law, become in independent contract in teh sphere of economic law and separated from the contract for personal services. Under the influence of the Roman, namely Pandects law, it has been more or less connected in great codifications to that contract. In Yugoslav Law on Obligation Relations, too, in article 630, the contract of construction is defined as a contract for personal services, although already in the subsequent text its particularities are emphasized. Also, by singling it out into a separate Chapter XIII (immediately after the contract for personal services), it is however regulated as an independent named contract. In contemporaty Yugoslav theory, too, only recently the opinion prevailed that it should not be connected to the contract for personal services. It is noted here that already in classical Roman law all particularities of thelatter contract have been singled out - the fact that the operator undertakes the obligation to construct in his own overhead a specific object. But classical lawyers did not single it out of the contract for personal services, which was also die case with not taking out entirely that contract from the entity of contracts known as locatio conductio. However, they did make separate rules to be applied only to the contract of construction. These rules have been created by following the customs and practice at the time of enormus building up of Rome at the beginning of the Principate. Beginning with the contracts entere into in practice and corresponding litigation, classical jurists have singled out the contract of construction from the number of other kinds of contract whict were subject to the rules of locatio conductio operis faciendi, but stull they did not make it independent.

ПРАВНИ КОРЕНИ УГОВОРА О ДЕЛУ

Author(s): Blaža Marković / Language(s): Serbian Issue: 6/1990

Roman law is a genuine source and a permanent inspiration in all legal research. The contract for personal services is treated by Roman law within the framework of the contract locatio conductio operis, while provisions concerning this contract are found alredy in the Justinian Code. Its application in practice was, however, rather rare, bearing in mind the nature of the slave holding social system. Dutch jurist J. Veoth has laid down the grounds of the tripartite theory regarding the locatio conductio operis contract, namely: locatio conductio rei, locatio conductio operarum and locatio conductio operis. This kind of distinction in the case of locatio conductio was challenged by Felix Olivier Martin whose study „on the system of hire in Roman law" provoked quite a controversy by holding that the tripartite division was present in the practice, but was not visible either in the theoretical works of Roman jurists or in the Roman law codifications. Relevant research obviosly shows that the roots of the contract for personal services are found in Roman law, and that this type of contract underwent its evolution, while in some periods it had a rather narrow implementation. However, it never has been completesy extinguished and shall find its way in practice regardless of the social system.

Sliby v římském právu

Author(s): Michal Skřejpek / Language(s): Czech Issue: 86/2022

The article is focused on the issue of unilateral vows in ancient Rome, their nature and binding force. Attention is paid to public religious vows, whether made for the good of the Roman state or later the emperor (vota publica). In this context, their special forms are also mentioned, such as evocatio, consecratio and especially devotio. Private religious vows (vota privata) are not omitted. The second type of promises was pollicitatio – private promises in favour of the municipality, the aim of which was initially exclusively to obtain a local office, later they were made in reaction to consequences of the natural disaster. From the legal point of view, such unilateral promises are among the contracts arising as if from the contract (quasi- -contracts) and were enforceable only within the imperial process (cognitio extra ordinem).

Grave Robbery in Early Mediaeval Frankish Laws

Author(s): Tamás Nótári / Language(s): English Issue: 1/2022

Almost all German codices – except for Lex Saxonum, Lex Thuringorum, and Ewa Chamavorum – extensively discuss legal protection of the grave and the dead body and sanction persons who disgrace them. This scope of issues is dwelt upon in details by Edictum Theodorici, Leges Visigothorum, Lex Burgundionum, Edictus Rothari, Lex Salica, Lex Ribuaria, the Pactus, Lex Alamannorum, and Lex Baiuvariorum. In the present paper, we analyse the state of facts that constitute grave robbery in Frankish laws. This investigation requires the analysis of the legal source base as well as some examination in the history of language, which allows a comparative analysis of the issue and helps to highlight the various layers of the norms of Frankish laws by the example of this state of facts.

A naptár jelentősége a római civiljogban

Author(s): Tamás Nótári / Language(s): Hungarian Issue: 3/2022

The aim of this study was to analyse the importance of the order and characterization of the days (Fasti) for the legislation and jurisdiction in ancient Roman civil law (ius civile). After having summarized the order of the months and weeks in the Roman lunisolar calendar, both the categories dies fasti / dies nefasti (according to Varro: „dies fasti, per quos praetoribus omnia verba sine piaculo licet fari”) and those of dies comitiales and dies nefasti publici were to be defined. Finally (as the adjective fastus can be derived from the same root as fatum, i.e. the verb fari), it seemed to be worth throwing some light on the sacral roots of the legis actio sacramento.