Civil Law – Historical Roots

1. Civil Law – Historical Roots Roman law • Actors: jurist, praetor, judge • Justinian Corpus Juris Civilis Method of determining Roman law • Glossators • Commentators • Authorities: treatise writers

2. Roman law - actors Praetor Approves litigation Annual edict Jurist Roman aristocracy Legal writings / opinions Judge Iudicium strictum Iudicium bonae fidei Praetor’s actio (formula) Names judge Intentio: if Def agreed to pay Pl $10,000 Exceptio doli: if Pl did not commit fraud Condemnatio: Tell Def to pay Pl $10,000 – unless already paid Civil Law – Historical Roots

3. Civil Law – Historical Roots Corpus Juris Civilis (Justinian) • Institutes (4 books – 530AD) • textbook (based on Institutes of Gaius – 160AD) • force of law • Digests or Pandects (50 books – 530AD) • Excerpts from 38 jurists • Opinions and writings • Codex (12 books – 529AD) • Imperial decrees • Revised and compiled • Novels (Justinian decrees after 534AD)

4. Civil Law – Historical Roots

5. Civil Law – Historical Roots Justinian’s reign (527-565AD) • turning-point in Late Antiquity • paganism finally loses long struggle to survive • Irreversible schism in Christianity between East and West • First Bubonic plague (542, returned 558) • last time Roman Empire on military offensive • Africa and Italy recovered • foothold in Spain • By end of reign, Balkans devastated by raids / Italy economically ruined • Byzantine art • Architecture: Hagia Sophia (still standing in Istanbul) • Sensuous poet Paul the Silentiary • Commissioned revival of classic Roman law

6. Civil Law – Historical Roots Hagia Sofia (537AD) • greatest church in Christendom • converted into mosque by Mehmet II • buttresses added by Sinan (1571)

7. Civil Law – Historical Roots Demerara Turf Club Ltd v. Wigt (Privy Council 1918) Turf Club, in liquidation, announced auction of its Bel Air Park. “Purchaser shall pay auctioneer in cash on knock of the hammer.” Wigt made the last bid of $16,005. The auctioneer refused to sell at that price. Wigt said, “The Turf Club is mine.” But to no avail, so he sued for specific performance. Questions: • What law applies in British Guiana? • What’s the issue? The parties arguments?

8. Civil Law – Historical Roots Roman-Dutch law (mid-15th Century to codification) • Plaintiff’s argument • Auctioneer is offeror / each bidder is acceptor – each bid a provisional contract • Auctioneer (absent reservation) tacitly agrees to accept best bid • Defendant’s argument • Bidder is offeror / auctioneer is acceptor • Auctioneer has discretion not to accept

9. Civil Law – Historical Roots Roman-Dutch law • No code, statute, ordinance • No decided cases • Look to writers of authority Questions: • What law is court seeking to discern? • What do authorities say? some more authoritative? • Are any analogies?

10. Civil Law – Historical Roots Addictio in diem • Buyer agrees to let seller look for better price • Seller can annul contract if finds a better price • If so, first buyer can increase his price and keep goods Questions: • Useful analogy? • Is addictio in diem an auction? Like an auction? • Where look next?

11. Civil Law – Historical Roots Antonius Matthaeus (De Auctionibus – 1653) • Necessary sales (public auctions): not final until court decrees and “lifts the wax from the seal” • Voluntary sales (Dutch auction) • Day 1: highest bidder receives a premium (bidder bound, seller not) • Day 2: Seller starts at 1/3 higher price, descends until someone calls “mine” • If not, first-day bidder buys

12. Civil Law – Historical Roots Hermessen Matthaeus

13. Civil Law – Historical Roots Matthaeus (De Auctionibus – Book 1, Chapter 10, De Licitationisbus) (1) Can bidder withdraw? No (2) Can seller withdraw? No • Seller able to withdraw, not bidder, would be “absurd” • Seller who proclaims auction tacitly agrees to sell Questions: • Is this the end of the matter? • How does the court avoid Matthaeus’s conclusions?

14. Civil Law – Historical Roots Count the authorities: • Auctioneer offers and bidder accepts (plaintiff wins) • Puchta, Pandekten, Berwick • maybe Voet (most famous Dutch jurist) • Bidder offers and auctioneer accepts - no sale until fall of hammer (defendant wins) • Mattheaus (but says auction subject to auctioneer’s promise to accept) • Modern Andries Maasdorp Question: • How does the Privy Council resolve this split? What source?

15. Civil Law – Historical Roots Privy Council: • “no rule of Roman-Dutch law that prescribes that bidder is acceptor” • “no rule that highest bidder can insist property not be withdrawn and claim to have bought it” • “This being so, the matter is governed by the provisions of the conditions of sale [knock of the hammer] … that the offer will come from the bidder and there is no bargain till it has been accepted by the auctioneer” … much ado about nothing!

16. Civil Law – Historical Roots Bank of Lisbon and South Africa v. De Ornales (Sup Ct South Africa 1988) Ornelas Fishing Company had a line of credit with Bank of Lisbon. It was secured by deeds and other securities given to secure any “overdraft,” but worded broadly cover all obligations”from whatever source.” When Ornelas closed its line of credit, the Bank kept its securities. This is nasty – no? Isn’t the contract “unconscionable”?

17. Civil Law – Historical Roots South Africa

18. Civil Law – Historical Roots History of exceptio doli generalis • Old Roman law: ius strictum does not recognize fraud liability • Praetorian law ameliorates (1) Actio doli mai (2) Exceptio doli male (exception in sphere of contracts / defense to stipulation or loan)

19. Civil Law – Historical Roots

20. Civil Law – Historical Roots Exceptio doli (Bortolus notices distinction) • Exceptio doli specialis – defense that fraud in making of contract • Exceptio doli generalis – defense that “evil” for plaintiff to sue on contract • Achieve equity • Classical Roman law: pleaded as defense, included in praetor’s formula • Post-Classical Roman law: confession and avoidance / defendant mentions facts

21. Civil Law – Historical Roots Glossators and Commentators (12th Cent. – 15th Cent.) • Glossators recognize dolus generalis • Commentators (modernize Roman law of contracts) • “nude pacts” (verbal agreements) create obligation same as “privileged contracts” • stipulatio stripped of technicalities / exceptio doli generalis unneeded Questions: • Are we at Roman-Dutch law yet? • If not, why this study of the historical?

22. Civil Law – Historical Roots • Roman-Dutch law (15th Century) • Exceptio doli generalis not received in Holland • References in texts on Roman law not acceptance • No evidence that used in litigation • No reference with authorities (Dutch and others): disappeared in Middle Ages • What’s left? • Equity cannot override clear rule of law • All contracts are bonae fidei, but no equitable exception Question: • Who wins – nasty Bank or victimized borrower?

23. Civil Law – Historical Roots Bank of Lisbon

24. Civil Law – Historical Roots Dissent (Jansen) • Justinian Digest (D 44.4.1.1) • “Person’s fraud should not benefit through civil law, but contrary to equity” • Although exceptio doli generalis no longer procedural device, bona fides to be applied • Contract uncertainty • British common law adopts unconscionablity • UCC adopts unconscionablity (affronts decency) • German law: exceptio absorbed into bona fides • Unconscionable: Bank used standard form, security far beyond needs, offends sense of justice, see earlier cases