Reception of Roman law

1. Reception of Roman law Evolution of Roman contract law • Consideration • Specific performance Institutional forces • Medieval law schools and scholars • Administrative nation-state • Conception of law

2. Reception of Roman law Medieval law schools and scholars • Glossators (11th – 13th Cent.) • Bologna discovery of Justinian’s CJC • Annotations to text of CJC / scholastic method • Accursius (1182-1259) • Commentators (14th – 15th Cent.) • Primarily in Italy (mos italicus) • Bartolus de Sassoferrato (1314-1357) • Practical adaptation, not exegesis • Humanists (16 – 17th Cent.) • Return to classical Roman roots (mos gallicus) • Influenced by natural law school

3. Preemptive war To enfeeble a prince of a state whose power increases day by day for fear that, if permitted to increase too much, it may upon occasion inflict injury is unjustifiable…. [T]hat one has a right to attack another because he has power to do harm, is contrary to all the rules of equity. Such is the constitution of human life that one never exists in perfect security. It is not by the employment of force, but in the protection of Providence and by innocent precautions that one should seek resources of defense against the fear of uncertain danger. • --Hugo Grotius, 1625

4. Reception of Roman law How did Roman law handle consideration (informal agreements) and specific performance (damages as exclusive remedy)? • rules evolve over time? • influences?

5. Reception of Roman law Roman contract law - consideration • Nuda pactio obligationem non parit • A naked agreement [without consideration] does not create an obligation. Dig. 2.14.7.4. • Ex nudo pacto non oritur actio. No action arises on a contract without a consideration. • Stipulation • formal contract by which promisor (and only promisor) becomes bound • Sixth century AD: exclusively written • Recognition of informal oral contracts

6. Reception of Roman law Oral contracts recognized in Roman law • Four types - informal consent sufficient: • an agency agreement (mandatum) • a partnership agreement (societas) • a sale-purchase (emptio venditio) • a letting or hiring (locatio conductio) • “Consensus, or mutual assent of the parties, is the special characteristic of four agreements.” Henry S. Maine, Ancient Law 322-23 (10th ed. 1884).

7. Reception of Roman law Evolution of attitudes toward consideration • Lex mercatoria: abandoned consideration requirement • Canon law: Pacta, quantumcunque nuda, servanda sunt • Agreements, even naked ones, must be kept (Pope Gregory 1234) • Pacta sunt servanda - agreements must be kept • "Every treaty in force is binding upon the parties to it and must be performed by them in good faith.“ Vienna Convention on the Law of Treaties, Art 26

8. Reception of Roman law Evolution of attitudes toward consideration • Old Germanic customary law: precept of fidelity (Grotius 1642) • Natural law: God would be acting against his nature were he not to keep his word (Cicero – “good faith is fundamental to justice”) • German usus modernus reverses maxim:Ex nudo pacto oritur actio • Roman-Dutch law: doctrine of consideration dead (Groenewegen 1664)

9. Reception of Roman law Roman contract law – specific performance • Omnis condemnatio pecunaria • Whatever the defendant’s promise, he is condemned to pay a specific sum. • Roman law, through Justinian Corpus Juris Civilis • Glossators and Commentators • Nemo potest praecise cogi ad factum – ?? • Rule for facere obligations (to do) • Exception for dare obligations (to give) • French Civil Code Art 1142: Any obligation to do or not to do resolves itself into damages, in case of non-performance on the part of the debtor.

10. Reception of Roman law Evolution of attitudes toward specific performance • German usus modernus • Rejected specific performance • But purchaser (actio empti) can insist on specific performance • Dutch-Roman writers • Grotius: natural law requires person to do as promised • But can satisfy by paying • Dutch courts (legal science) • Abandoned in obligationes ad faciendum (promise to do) • Modern view

11. Reception of Roman law Compare Roman law and ius commune (Roman law as received in Europe) • deductive or inductive? • systematic? Abstraction  principles  categories  concrete rules

12. Reception of Roman law What is Common Law (ius commune) of continental Europe? How is it different from Common Law of England? Compare development of Roman law in France and Germany.

13. Reception of Roman law Importance of Roman law • Why did Roman law become and remain significant in continental Europe? • Influence and domination of Rome? • Justinian’s Corpus Juris Civilis? • Identify the roles of – • Medieval law schools and juristae • Development of administrative nation-state • Legal theory- Roman law as “written reason”

14. Reception of Roman law Development of Roman law • Mos italicus (Bartolus) • Scholastic method – Juris Utriuque Doctor • Application to current situations • Mos gallicus (French jurisprudence) • Concerned with antiquity • Elegant refinement / humanism • Ius commune • Roman law applied throughout medieval Europe • Process of modernization

15. Reception of Roman law

16. Reception of Roman law Bartolus de Sassoferrato (1314–57) • professor in Pisa and Perugia • mos docendi Italicus ("the Italian way of teaching") • standard way of legal thinking • nemo jurista nisi bartolista -- "nobody is a jurist unless he is a follower of Bartolus"

17. Reception of Roman law 4. Bartolus, Consilium 128 Franciscus had as his wife a certain Thoma, and he had a dowry of 200 florins. This Franciscus died and left some minor sons, with whom the said Thoma, the mother of the said sons, continued to live for three years. Then she entered a second marriage, and had stayed with that man for three years, when that second husband demanded his wife's dowry and alimony from those heirs of the said Franciscus.

18. Reception of Roman law 4. Bartolus, Consilium 128 The question is whether alimony is owed and for what time. In this question it must be examined why this alimony is demanded, whether it is demanded on behalf of the mother who should be supported by her sons, and then it is a question to be decided by the judge, and must be denied: For she is owed support by her husband, in whose service she is, as in Digest 13,6,18,2... And this is my opinion. Bartolus.

19. Reception of Roman law Modernization of Roman-Dutch Law • Dutch-Roman jurists were not merely professors • Studied lawyer interpretations / judicial opinions • Law professors gave opinions in specific cases (2) Elegant humanism • Influence of French humanists • Contemporary mores hodierni gain own significance (3) Cosmopolitan (Spanish influence) • Professors appointed from outside city • Foreign students in Netherlands (4) Natural law – Grotius “father of Roman –Dutch law”

20. Reception of Roman law Modernization of Roman-French Law Paris – North (pays de coutume) Midi – South (pays de droit ecrit)

21. Reception of Roman law Modernization of Roman-French Law • Parlements • Judicial office – hereditary offices / transferable • Arrets de reglament (judicial legislation) • Refusal to apply royal ordinances • Replaced by revolutionary law • Abolition of privileges • Equality under law • Liberty / protection of property

22. Reception of Roman law Modernization of Roman-German Law Usus modernus Pandectarum German “Romanists” German “Pandecists”