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Starting from a general vision of Roman law regarding obligations, this article analyzes the relationship between the exact fulfillment of the former and the creditor satisfaction. In addition, based on the sources, some personal reflections are made as for the procedural claim in case of non-compliance, the payment made after the litis contestatio, and a review of the means of proof in the Roman private process in the Italian doctrine.
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As a complex, both political and juridical, personality of the inter-war period, Nicolae Titulescu (1882–1941) was remembered by his peers especially by his diplomatic activity (as Romania’s minister of external affairs and its representative at the Society of Nations) and by promoting the values of international law. Apparently “shadowed”, his work and papers on civil law completes and characterizes the formative and professional basis, the academic presence, and his office as a barrister. Titulescu’s juridical profile is thus revealed in its multitude and as essential in his public activity, thus under a strong influence. The general conception on law and its application in civil law stands out as Titulescu’s scientific contribution. “Read” in the terms and valued according to the priorities of each era, it stands of great actuality, as a chance of “reinventing” Romanian juridical science. Joining the new orientation from the end of the XIXth century and the beginning of the XXth, of abandoning the exegetic school if favor of the perspective of economic, social, and psychological conditioning of the legal phenomenon, Titulescu will promote the thesis of law as a social science, thus offering the prospects for the development of a “Romanian law”, in the sense of a creative adaptation of the imported regulation (specific to modernity), and stimulating the creation of a normativity exposed to the needs of the society, with a corresponding case law and jurisprudence. As a jurisprudent, Titulescu offered “a study of the civil law, and not of the civil code”, alternating the critical (economic and social) research with the legal debate and analysis. To him, interpreting the law was not exclusively a search for the view of the lawmaker, but not as much abandoning the written law in the name of equity; it was, most likely, adapting the law to social needs. Last but not least, by valuing this heritage, the direction to be followed by the post-1989 Romanian legal thought became now a rediscovery of the science of law as an intellectual effort, having its origins in the “spirit of the people” (Savigny), by which the Romanian society reveals itself to the jurist as “principle of our law” (M. Djuvara), and its purpose in the configuration of Romanian law as a system of legal institutions created by transposing the realities of social life into the technical language of legal categories.
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The guarantee for hidden defects means the seller's respsponsibility for the qualities established by law or in the contract and relating to the sold item. The essence of the guarantee is that the seller is responsible for the defects of the item, which he already had at the time of traditio. This obligation is focused not so much on responsibility as on the perfect fulfillment of the obligation. The rules of guarantee developed in the classical era in Rome remain largely unchanged even in the postclassical era and are thus incorporated into codified matter. A significant part of this regulation still originates from the edict of the aediles curules, who acted as magistrates for the regulation of trade relations.
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Background: The issue of teaching Roman law in postwar Poland is a fairly complex matter. A significant date is the year 1975, when the reform of legal studies that put Roman law into the framework of newly-created courses in the history of law came into force. It coincided with the subsequent editions of the textbook authored by the Professor Kazimierz Kolańczyk of Poznań. Research purpose: The objective of the research is to analyze the circumstances related to the creation of the second and third editions of Kazimierz Kolańczyk’s textbook Roman Law. The analysis was based on archival materials related to the preparation of the subsequent editions of the work. The article seeks to show what assumptions the author of the work intended to implement and what postulates were expressed by its readers. The article also aims to discuss the significance of the subsequent editions of the textbook in light of the legal studies reform being carried out at the time. Methods: The article applies a historical-legal method. Conclusions: The second edition of Kazimierz Kolańczyk’s textbook included modifications and improvements that were very well thought out by its author. Consequently, the work became slightly longer and even more accessible to the reader. The third edition did not contain significant differences compared to the second one. The publication of both editions was really crucial in the context of reform of legal studies, including the restoration of Roman law to its rightful place in the canon of legal studies.
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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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Talking about the Roman electoral system nowadays may certainly seem at a first glance, an outdated approach and one lacking a practical utility. However, if we leave aside the Greek democracy, the Roman electoral system was not only one of the best developed from a procedural point of view, but also one that overwhelmingly inspired modern systems. In the perception of the Romans, the state was not a separate and distinct entity from - and occasionally opposed to - the individual, but a group of individuals linked by various affiliations and sharing distinct obligations and privileges. But the real strength of the Roman state laid in the suffrage of the citizens, given that they had the necessary tools, legal and political alike, to elect those who exercised executive power, a basic feature today in all representative democracies.
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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.
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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 extinguished effects of confusion in civil obligations are verified in agreement with very particular rules in diverse categories of legal relations in which they affect and distinctive as well are the solutions that roman legal sources contribute in this sense, by which always maintaining as base of our study the unity in regards to the definition of the institution, we have projected our interests for the analysis of the confusion in the obligations with guarantee field, most definitely about the guaranteed obligations with the bond in accordance to their manifestation between deserving of and principal debtor, between deserving of and guarantor and lastly, between debtor and guarantor.
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Even the pagan Roman emperors issued a number of decrees concerning Jews and Christians. However, the regulation of the relationship between Jews and Christians did not begin until after the Constantinian change. The Christian emperors ruling in the fourth to sixth centuries sought to achieve the following three main goals in this area: (1) promoting the conversion of Jews to Christianity; (2) hindering the conversion of Christians to the Jewish religion; (3) elimination of hostility between Jews and Christians. For the first purpose, the rights of Jews were restricted (for example, they were excluded from public offices). Jews who converted to the Christian faith received special legal protection. For the second purpose, the conversion of Christians to the Jewish faith was declared a crime. Jews were forbidden to keep Christian slaves. Mixed marriages between Jews and Christians were prohibited. For the third purpose, Christians were forbidden to abuse Jews; attacking, looting and setting fire to synagogues was severely punished. Jews were also strictly forbidden to violate the Christian religion.
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1. Phenomenological and structural uncertainties in different legal systems. 2. D. 19.5.12 (Proc.11. epist.) And CI. 4.54.2 (Alexander A Charisio militi, a. 222). 3. Conclusions.
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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.
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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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Rimsko pravo je preko srednjovjekovnog ius commune postalo pravnom tradicijom europskog kontinentalnog pravnog kruga i opći fundament modernog europskog privatnog prava. Ono predstavlja ratio scripta novog europskog pravnog uređenja. Sa svojim metodskim postavkama doprinosi ujednačavanju elemenata jedinstvene jurističke radne tehnike. Putevi izgradnje bezvremenskih rimskih pravnih principa trebaju biti putokaz u procesima harmonizacije i unifikacije europskog prava i afirmacije europskog pravnog duha u planetarnim okvirima. Rimsko pravo kao autohtona sveučilišna pravna disciplina predstavlja respektabilni znanstveni korpus. Znanstvena obrada rimskih pravnih koncepata u novom europskom modulu pravničkog studija je postavljena kao centralna ishodišna dimenzija. Rimsko pravo je postalo univerzalna znanstvena disciplina. Pravni život Europe je osebujni modificirani modus vivendi rimskih pravnih figura i instituta.
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This paper examines some of the legal perspectives of Rome’s fight against piracy. The main objectives of the study are to touch upon the notion of piracy in Republican Rome and the actions that were taken by the State against these „sea bandits“.
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This article is devoted to the issue of the legal consequences of the Actio Pauliana institution, in particular with regard to the creditor’s protection regime in the event of the debtor’s insolvency. The Article will raise the issue of the basis for the creation of solidarity among debtors, rules of their liability, the legal foundation of the liability and claims against joint and several debtors in case of insolvency of one of them. The aim of this article is also to discuss the effects of Actio Pauliana in accordance with the procedure of obtaining the creditor’s compensation and also recourse claims between joint debtors of the jural relation.
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Roman authors demonstrated this hierarchy-oriented approach already when talking about the very establishment of Rome by Romulus, who divided then the foundational community into social orders of patricians and plebeians. Rome begins not with the individuals entering into a kind of social contract but with the pre-existing community. This community is granted with new identity with establishment of a specific order, that allowed addressing all the needs of the community and provided it with significant potential for expansion. Both social orders were burdened with the duties of mutual care and the specific duties towards Roman community itself. Therefore, the social relationships were understood in terms of duties and not rights. In order to provide for proper functioning of this social system, special institutions were established. Among others, that were described, particular attention was paid to Censors being in charge of supervising appropriate moral conduct of the citizens. The Censors exercised control over the way in which the citizens performed their moral duties, i.e. whether they have been observing mores (socially accepted patterns of conduct) in social life. Requirements stemming from the mores depended on the social position, and the higher the social position was, the greater were the requirements towards a given citizen. Censors could punish a citizen who had violated mores, with a censor’s note (nota censoria). The effect of the censor’s note were diverse and could entail severe consequences ending with exclusion from the community which resulted in deprivation of citizenship (capitis deminutio media).
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With a critical and renovating spirit, the author is firmly convinced of the value of the theory of the legal business, both for its usefulness to form the mind of the new jurists, as well as that of the romanist as the mercantilist and the civilist. The study focuses on an analysis and a critical review of the doctrinal generalities and the specific points of our romanistic science, including some reflections on the new doctrinal currents that allow us to extract the most outstanding scientific profiles of the so-called legal business. We will make a brief commentary on the I. General presuppositions. II. Concept of Legal Business. III. Brief reference to the essential elements. IV. Utility, justifications, and recognition of the scientific values inherent to legal dogmatics and the Theory of the Legal Business. V. Doctrinal postulates on the legal business. VI. Nuances and conclusive convergences. Historical-critical method. Historical-dogmatic method. From the dogma of the autonomy of the will, to the dogma of Betti's prescriptive declaration.
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In the text the author analyzes the excerpt of the work of late republican lawyer Alfenus Varus on the responsibility of slaves for the actions taken on the owner’s order. Text of Alfenus is preserved in D. 44.7.20. Its interpretation indicates that the discussed question was the private liability on the ground of lex Aquilia de damno and the perpetrator was manumitted after committing the wrongful act. The rule quoted by Alfenus, that the manumitted slaves should not be released from responsibility for the actions taken on the order of their masters, could refer to liability on the ground of the private and public law.
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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.
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