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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.

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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.

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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.

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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.

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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.

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LEX RHODIA: ЗАКОНЪТ ЗА РОДОСКАТА МИТНИЦА

Author(s): Gianfranco Purpura / Language(s): Bulgarian Issue: 2/2021

The Lex Rhodia de iactu was in fact a law of the customs of Rhodes and had the aim to favor the shipyards of Rhodes. The law granted a temporarily duty exemption to the ships arriving in the island after a strong storm. The text which was recently found on a column in the port of Rhodes is for sure not an ancient one and can be attributed to the recent Italian colonial occupation of the island.

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ΠΕΙΡΑΤΉΣ. РИМ И ПИРАТСТВОТО

Author(s): Sebastiano Tafaro / Language(s): Bulgarian Issue: 2/2021

The Roman presence in the Mediterranean continued to grow until the 1st century BC and in the Principate. The Romans took note that for it there was already a widespread right (such as the Lex Rhodia) and accepted it. In this context, a particular aspect was the fight against piracy, which was also widespread and present in mare nostrum. The Roman owners themselves were not alien to ordering their servants to practice piracy, which was a source of wealth and was important for increasing the number of slaves. The first radical interventions against piracy were motivated by expansionist aims (such as the attempt for the creation of a Macedonian Empire and the expansion of the Illyrians, headed by the queen of Skodra, Teuta). Around 100 (BC) a provision was issued (known as lex de piratis, while in reality it is more correctly to be called lex de provinciis praetoriis: it envisaged a sort of actio popularis, and obliged the allies to fight piracy. It is Pompey the Great that took more drastic and definitive measures, having almost absolute power, through the plebiscite proposed by Gabinius (lex Gabinia). Pompey combined military action with political action, even envisaging forgiveness for those who had voluntarily abandoned piracy. Confirming that for the resolution of the big problems they can resort to the combination of forceful actions with far-sighted political acts.

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СДРУЖЕНИЕTO НА РИБАРИТЕ И ТЪРГОВЦИТЕ НА РИБА В НОВИ КАРТАГЕН: ПРИМЕР ЗА СОЦИАЛНА ИКОНОМИКА

Author(s): María del Carmen Lázaro Guillamon / Language(s): Bulgarian Issue: 2/2021

The relationship between associative phenomenon and the exploitation of fisheries resources on the Mediterranean coast in Ancient Rome is a fact. The historical references about the fishing tradition in our coast (not just at sea, but also in rivers and lakes) date back to Phonetician and Roman times. This demonstrates the importance of fishing activities, mainly dedicated to the own subsistence as well as to the production and the export of fish and salted fish to Rome or to other areas of the Roman Empire. The ways of regulating the access to the fishing resources are not widely known, but through some epigraphical sources – i.e. CIL II. 5929 – we can identify certain characteristics of this phenomenon and conclude that the associative form in ancient Rome has provided a special „social identity“ to the fishermen's associations.

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ISLANDS OF EXILE IN ROMAN CRIMINAL POLICY

Author(s): Ivana Jaramaz Reskušić,Ivan Milotić / Language(s): English Issue: 2/2021

In the field of criminal law the Romans invented and institutionally elaborated several types of exile, each with its own legal prerequisites and consequences. Each exile might consist of a banishment to an island while in most cases this meant that a person was exclusively banned to an island. This paper will explore the role and rationale of the convict’s banishment to a specific island (with specific features) from the perspective of the punishment, the criminal policies and criminal goals that the Roman authorities achieved not solely by selection of an island, but also by confining the convict to local living conditions.

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

Author(s): Marija Ignjatović,Aleksandar Djordjevic / 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.

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THE LLIBRE DEL CONSOLAT DE MAR: A MEDIEVAL NORMATIVE BODY IN THE IUS COMMUNE SCOPE

Author(s): Juan Canizares-Navarro / Language(s): English Issue: 2/2021

This study aims to address an always controversial issue, such as the reception of Roman law in the set of local laws and institutions -Iura propria. In the case of the Llibre del Consolat de Mar, the present research, aims to contribute to determining the degree of reception of the Ius commune –in particular through the Justinian Roman law. Should such reception be lesser than what is usually believed, this would mean that Ius commune had not always prevailed over the customs and practices of a specific area as in the medieval western Mediterranean maritime law contained in this Llibre.

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Examen de drept comparat asupra formării familiei de drept romano-germanice

Author(s): Sonia Drăghici / Language(s): Romanian Issue: 03/2022

The construction of the Romano-Germanic family law system is an interesting phenomena build around Roman law, which became a principle or a norm of thought for the European juridical thinking, and also around the law of Germanic people who colored the juridical European life and determined the process of codification. Thus, the article addresses the interesting issue of the combination process between Roman law with the law of the Germanic people, indispensable for the understanding of the Romano-Germanic family law system and for underlying the differences between this system and the common-law system. This is an important process, considering that a considerable part of the juridical systems of the world are founded around the family law system.

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GENERAL CONSIDERATIONS REGARDING THE HISTORIC EVOLUTION OF ROMAN LAW

Author(s): Cristinel Ioan Murzea / Language(s): English Issue: Supliment1/2017

The historic evolution or Roman law was in a determination relation with the factors which configure law, especially the social-political ones or the economical ones, but also those which pertain to the natural background in which Roman society evolved, thus passing from the citadel-state to the “polis” type of state and then to the universal state - the Roman empire - which would later become a model of political, military and legal organization for the entire antic world. Roman law was created in the history of the eleven centuries of existence or the Roman state which passed several stages of development, excelling in the classical age when, given the great reforms which are performed under the direct influence of the praetorian, the main legal magister, certain principles and legal institutions are created which proved to be viable across the centuries to follow, thus directly influencing the subsequent legislative activity in the modern and contemporary age in the European space.

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SOME CONSIDERATIONS REGARDING THE GENERAL LEGAL STATUS OF THE NULLITY OF THE LEGAL ACT IN THE LIGHT OF THE NEW CIVIL CODE

Author(s): Titus Prescure,Roxana Matefi / Language(s): English Issue: Supliment1/2017

Through this study, we aim to highlight the novelty that the Civil Code has brought about the regulations on the legal regime of nullity. At the same time, we aim to point out the controversial and/or critical conceptual aspects of the issue and to formulate de lege ferenda proposals on the improvement of the legal regime of nullity.

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STIPULATIO POENAE IN THE MIDDLE EASTERN LAW - PROBLEM OF ENFORCEMENT OF CONVENTIONAL PENALTY

Author(s): Samir Aličić / Language(s): English Issue: 7/2021

Stipulatio poenae is an institute of the Roman law corresponding to penalty clauses and liquidated damages in the countries of the Middle East. Originated in the ancient roman law, it was adopted into the Egyptian Civil Code of 1948 via French Civil Code of 1804, and the an diffused to most of the countries of the Middle East. Although initially permitted unlimited conventional penalties, the Roman (or Continental-European) law slowly restricted the contractual liberty of the parties in this regard. The institute of reduction of the conventional penalty/liquidated damages by the discretional power of judge became commonly accepted. Islamic Law, at the other hand, similarly like Common (Anglo-American) law, had negative stance on the conventional penalties. But with a more flexible approach being adopted, the development went into exactly the different direction than in the Continental-European countries. Consequently, the institutes of liquidated damages in the modern Middle Eastern and Common law legislations on one side, and their Continental-European counterparts in the form of penalty clauses on the other, are becoming more and more similar.

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IN MEMORIAM: PROF. DR. SC. MARKO PETRAK (1972. – 2022.)

Author(s): Nikol Žiha / Language(s): Croatian Issue: 1/2022

Ovim sjećanjem odajemo priznanje Marku Petraku, redovitom profesoru u trajnom zvanju, dugogodišnjem predstojniku Katedre za rimsko pravo, predstojniku Zavoda za pravnu povijest i rimsko pravo Pravnoga fakulteta Sveučilišta u Zagrebu i vjernom suradniku Pravnog fakulteta Osijek, koji nas je iznenada napustio 17. siječnja 2022. godine.

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ACTA PILATI, BETWEEN LAW, MORALS, AND RELIGION

Author(s): Marilena Marin / Language(s): English Issue: 1/2021

Starting with the very origin of man’s nature as a base for human rights, we suggest one of the controversial actions of ancient times, as a debate and analysis subject, respectively, Pilat of Pont’s action of „washing his hands” as a gesture of detaching himself judging-wise, and, eventually,sentencing the one whom he believed had wronged the Roman state. In this piece of writing, we will analyze, with reference to morals and religion, Pilat’s role as an official of the Roman state from a judiciary point of view. This role had to do with investing the governor with judging a case and the overall procedure he was to follow in the case of certain important procedures, to send information to the emperor who, at that time, was Tiberius Caesar Augustus. We believe that focusing on this subject may spark interest through the meth- od of analysis that we took up. We do not intend to make an analysis of the rules imposed by the canonic right and we won’t extend the analysis to all roles that Pilat had as an official either. We will limit ourselves to the judiciary aspects of Pilat of Pont’s activity in the context of Jesus’s trial. Knowing them better, we can find their utility and practical applicability in humans’ lives in society, but we can also understand the chosen subject better towards research for the writing here. Regarding the research methodology, we chose the interdisciplinary analysis, focused on empirical research, so that we can then reach conclusions that help us understand the survival of these notions over the centuries, to the present day.

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Einleitende Bemerkungen zu den Beiträgen der Referentinnen und Referenten des XV. Jahrestreffens der Jungen Romanisten

Author(s): Matthias Ehmer,Francesco Verrico / Language(s): German Issue: 1/2022

On September 13th and 14th 2021 the University of Würzburg (Germany) hosted the XVth Young Scientists Meeting on Roman Law. The following introduction sums up themes and presentations of the Meeting. A list of useful databases concerning the research on Roman Law, which was developed during our workshop, is also attached. After the introductory remarks three speakers present their essays, based on their presentation at the Meeting.

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Marek Kuryłowicz: Rzymskie prawo oraz zwyczaje grobowe i pogrzebowe. Studia i szkice

Author(s): Dagmara Skrzywanek-Jaworska / Language(s): English,German Issue: 1/2022

Review of: Marek Kuryłowicz, Rzymskie prawo oraz zwyczaje grobowe i pogrzebowe. Studia i szkice. Lublin: Werset, 2020, 288 S.

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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.

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