Civil Law – Historical Roots Roman law Actors: jurist, praetor, judge Justinian Corpus Juris Civilis Method of determining Roman law Glossators Commentators Authorities: treatise writers
Jan 15, 2016
Civil Law – Historical Roots
Roman law Actors: jurist, praetor, judge Justinian Corpus Juris Civilis
Method of determining Roman law Glossators Commentators Authorities: treatise writers
Civil Law – Historical Roots
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
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)
Civil Law – Historical Roots
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
Civil Law – Historical Roots
Hagia Sofia (537AD) greatest church in Christendom converted into mosque by Mehmet II buttresses added by Sinan (1571)
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?
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
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?
Civil Law – Historical Roots
Addictio in diem(1) Buyer agrees to let seller look for better price
(2) Seller can annul contract if finds a better price
(3) 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?
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
Civil Law – Historical Roots
Hermessen Matthaeus
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?
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?
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!
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”?
Civil Law – Historical Roots
South Africa
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)
Civil Law – Historical Roots
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
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?
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?
Civil Law – Historical Roots
Bank of Lisbon
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