Laesio enormis and dolus in re ipsa nowadays: the question of fault.
The mediaeval interpreters of Roman law have worked out the dolus re ipsa-concept to explain the mysterious laesio enormis (C. 4,44,2 [a. 285]). They supposed the inequality in exchange to be a result of malicious undertaking, for which paradoxically, no one was personally liable (D. 45,1,36 [Ulp. 48 Sab.]). In course of time, the incorporation of laesio enormis into the scheme of dolus turned into a presumption of a malicious act on the part of the enriched party, even though the laesio enormis is free from subjective criteria. It is astonishing how little the dolus re ipsa is discussed, although the modern paradigm for correcting inequality in exchange is based on the same assumptions. This ‘Wiederkehr der Rechtsfigur’ certainly deserves more attention.
Monopolisierung des Ehegüterrechts im Dotalregime
Jakob Fortunat Stagl
The ratio behind the prohibition for spouses to donate to each other. Monopolising matrimonial property law in the dotal system.
The present inquiry is based on the premise that the riddle of the highly contested rationale of the prohibition of donations between spouses can only be solved by taking into account the legal basis of this prohibition. The classical jurists treated the prohibition within the ius dotium, shorthand for ‘matrimonial property regime’, a legal matter heavily transformed by the lex Iulia et Papia which followed the goal of inciting the upper class to get married which would guarantee the desired offspring and control over the Emperor’s subjects. Considering the palingenetic context of the treatises on the prohibition, the lex Iulia et Papia is to be considered the legal basis of the prohibition which, therefore, has the purpose of channelling all economical transactions between the spouses into the ius dotium which in turn serves the goals of the lex Iulia et Papia. To sum it up: The prohibition was another legal ordinance in Augustus’ arsenal serving his fight for moral renewal, that is to say limitation of civil liberties, and the consolidation of his power.
In Roman Statutes the Twelve Tables Law have undergone a considerable shift: a considerable part of the delicts (iniuria, arbores furtim caesae and furtum) has been moved from Table VIII to Table II. It is argued that this shift, which breaks with the accepted arrangement, is unwarranted. Further, some observations are made on the edition of several rules in the Twelve Tables.
Justitia – Italia oder Germania?
The enactment of the German Civil Code (BGB) marked the triumph of the Romanists in the famous codification debate. However, the Germanists’ resistance endured and found new grounds and means of conflict. This essay throws light on the exploitation of the fine arts for the advancement of the Germanists’ legal policy. With the help of the prominent murals in the plenary hall of the court of appeal in Düsseldorf, executed in 1913, we will examine the continuing influence of the germanistic combat and the socio-political mores of the functionary elite of the late empire. It will be demonstrated that these murals were an expression of the ressentiment of a certain part of these ‘power elites’ towards the liberal constitutional state which had come into existence by the time of the codification of the BGB at the very latest. Nazi ideology was able to appeal to these political dispositions and values after the First World War. This was one of the major routes that led to the Nazi takeover and finally to the decline of the rule of law in Germany.
Le processus de légitimation du droit international du travail en Belgique (1888-1938) – Légitimité, expériences et mémoires du belge Ernest Mahaim
The legitimation process of international labour law in Belgium (1888-1938), Legitimity, experiences and memories of the Belgian Ernest Mahaim.
The aim of this contribution is to explain and understand the emergence of international labour law in Belgium in the late nineteenth and early twentieth century. First a marginal discipline disputed by the doxa of lawyers, diplomats, and politicians, international labour law is a direct result of the social evolution of the country. This paper focuses on the process of legitimation of this particular branch of law between 1888 to 1938 through the prism of one of his main specialist in Belgium, and also a key-figure of a worldwide network, Ernest Mahaim , professor at the University of Liège.
Johannes Wamesius (1524-1590), a professor of law at the Leuven university, was often asked for his expert opinion on concrete legal cases. Two volumes of (altogether) 600 so-called consilia de iure pontificio were published posthumously by his successor Étienne Weyms. After a short introduction, this article focuses on twenty canonical consultations. Those twenty consilia all concern questions of credit and money-dealing. This contribution first discusses Wamesius’ method and presents the parties and competent authorities involved. Secondly, attention is paid to how Wamesius deals with the plurality of legal sources. In a third step, Wamesius’ views on usury, as well as his consultation on a case of coinage are discussed. Finally, some concluding observations are offered.