The present article purports to stress the importance of the legal curriculum in the over-all compilation process of Justinian’s Digest. The basic hypothesis is that, in composing the Digest, Justinian’s drafting committee based its composition on the arrangement of the legal curriculum as it was before Justinian and as it was about to be changed in the process. The basis of this hypothesis is the division of the Digest into seven partes. It is contended that the basic structure of the first five partes of the Digest was predetermined by the legal curriculum, whereas the last two partes are an ‘Appendix Masse’. It is also contended that the distribution of books over all the seven partes of the Digest is the result of a preconceived formula inspired by the mathematics of Diophantus of Alexandria.
On the origin, nature and composition of the partes Digestorum
W.J. Zwalve and Th. de Vries
Marc de Wilde
In 1615, the States of Holland and West-Vriesland commissioned Hugo Grotius to draft a set of legal regulations for the Jews in their province. This article analyzes Grotius’s draft, entitled Remonstrance. It examines how Grotius understood and justified the rights of Jews and to what extent his approach was novel. More particularly, it shows how Grotius developed the concept of a natural duty to offer hospitality to strangers to advocate admission and toleration of Jews. He borrowed this concept from the sixteenth-century jurist and theologian Francisco de Vitoria, who had used it to justify the Spanish colonization of the Americas. While Vitoria had suggested that the Indians had violated their natural duty to offer hospitality to strangers by refusing to admit the Spanish merchants to their lands, Grotius argued that the provinces of Holland and West-Vriesland had a natural duty to offer hospitality to the Jews who had been expelled from their communities for religious reasons. Unlike Vitoria, Grotius recognized the natural duty to offer hospitality to strangers as the natural foundation of the right to asylum, which applied irrespective of religion. This enabled him to argue that these Jews, as religious exiles, had to be admitted to the provinces of Holland and West-Vriesland, and granted particular rights, including the freedom of (private) worship.
On evictio in libertatem. – By the evictio in libertatem might be affected the sale of a statuliber, likewise the sale of a slave whom the fideicommissaria libertas was bequeathed and who were sold without mentioning their condicio. Evictio in libertatem refers also to the sale of a slave whose freedom was ordered through an earlier lex venditionis which was not repeated to the buyer and finally to the sale of a liber homo that was bought without the buyer`s knowledge of his freedom. Besides the dispersed phenomena of evictio in libertatem the paper deals with the cases where the liability of a vendor for eviction was excluded because of the fact that 1) the buyer has voluntarily (effective or ineffective) freed the bought slave, 2) the buyer was forced by praetor to manumit the bought slave ex causa fideicommissi, 3) the buyer caused the freedom of the bought slave indirectly through a breach of an obligation. Despite the excluded liability for eviction an actio empti was granted to the buyer if he suffered a loss in consequence of the legal defect, namely when: 1) the vendor in the sale said that the man sold is a statuliber, but concealed the condition of his freedom, he knew, 2) the vendor concealed the fact that to the slave sold the fideicommissary freedom is bequeathed and the slave, after he has been freed from the buyer, changed the person of the patron, 3) the vendor concealed the fideicommissary freedom bequeathed to the slave sold and the buyer was forced to manumit the slave. Furthermore was the seller liable ex empto when he said that the man sold is a statuliber, directed to be free on giving a certain amount of money, but declared the sum to be greater than it really was.