Reception of Roman lawEvolution of Roman contract law

ConsiderationSpecific performance

Institutional forcesMedieval law schools and scholarsAdministrative nation-stateConception of law

Reception of Roman lawMedieval law schools and scholars

Glossators (11th – 13th Cent.)Bologna discovery of Justinian’s CJCAnnotations to text of CJC / scholastic methodAccursius (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

Preemptive warTo 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

Reception of Roman law

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

Reception of Roman lawRoman contract law - consideration

Nuda pactio obligationem non paritA 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 boundSixth century AD: exclusively written

Recognition of informal oral contracts

Reception of Roman lawOral contracts recognized in Roman law

Four types - informal consent sufficient: 1. an agency agreement (mandatum)2. a partnership agreement (societas) 3. a sale-purchase (emptio venditio) 4. 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).

Reception of Roman lawEvolution of attitudes toward consideration

Lex mercatoria: abandoned consideration requirementCanon 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

Reception of Roman lawEvolution 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)

Reception of Roman lawRoman contract law – specific performance

Omnis condemnatio pecunariaWhatever the defendant’s promise, he is condemned to pay a specific sum. Roman law, through Justinian Corpus Juris Civilis

Glossators and CommentatorsNemo 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.

Reception of Roman lawEvolution of attitudes toward specific performance

German usus modernusRejected specific performanceBut purchaser (actio empti) can insist on specific performance

Dutch-Roman writersGrotius: natural law requires person to do as promisedBut can satisfy by paying

Dutch courts (legal science)Abandoned in obligationes ad faciendum (promise to do)Modern view

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

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.

Reception of Roman lawImportance 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 juristaeDevelopment of administrative nation-stateLegal theory- Roman law as “written reason”

Reception of Roman lawDevelopment of Roman law

Mos italicus (Bartolus)Scholastic method – Juris Utriuque DoctorApplication to current situations

Mos gallicus (French jurisprudence)Concerned with antiquity Elegant refinement / humanism

Ius communeRoman law applied throughout medieval EuropeProcess of modernization

Reception of Roman law

Reception of Roman lawBartolus de Sassoferrato (1314–57)

professor in Pisa and Perugiamos 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"

Reception of Roman law4. Bartolus, Consilium 128Franciscus 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.

Reception of Roman law4. Bartolus, Consilium 128The 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.

Reception of Roman lawModernization of Roman-Dutch Law(1) Dutch-Roman jurists were not merely professors

Studied lawyer interpretations / judicial opinions Law professors gave opinions in specific cases

(2) Elegant humanismInfluence of French humanistsContemporary mores hodierni gain own significance

(3) Cosmopolitan (Spanish influence)Professors appointed from outside cityForeign students in Netherlands

(4) Natural law – Grotius “father of Roman –Dutch law”

Reception of Roman lawModernization of Roman-French Law

Paris – North(pays de coutume)

Midi – South(pays de droit ecrit)

Reception of Roman lawModernization of Roman-French Law

ParlementsJudicial office – hereditary offices / transferableArrets de reglament (judicial legislation)Refusal to apply royal ordinances

Replaced by revolutionary lawAbolition of privilegesEquality under lawLiberty / protection of property

Reception of Roman lawModernization of Roman-German Law

Usus modernusPandectarum

German “Romanists”

German“Pandecists”