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Summary

Already since the emergence of supra-national trade, merchants and trading companies have made use of so-called Faktoren (factors) to establish and expand their business networks. The increasing differentiation of the factor activity was first taken into account by the case law and commercial expert opinions, so-called pareres, which were subsequently received and finally led to the commercial codifications by constituting their own legal figures for dependent and independent action, in particular the assistants, the power of attorney and the commission. As part of this consolidation process, the special need for protection of trade and its trust in the persons appointed by the principal, who bore the risk of having used third parties for his interests, was implemented. Long before this risk distribution led to the ALR and subsequent trade laws, this fundamental trading ethos was established and further developed by merchants and lawyers alike. Only this further training and transfer to new constellations and legal figures formed the basis for the distinction between a commercial and civil law obligation of the represented person for his representative.

In: Tijdschrift voor Rechtsgeschiedenis / Revue d'histoire du droit / The Legal History Review

Summary

Pacta successoria in Roman and contemporary law: observations in the margin of M.F. Merotto’s recent book. – The work I patti successori dispositivi nel diritto romano is the most recent publication tackling the problem of contractual succession according to Roman law. In the book’s introduction, Maria Federica Merotto responds to the voices calling for a more nuanced study of this phenomenon. Despite numerous exciting thoughts, the study displays shortcommings. The vast discrepancy between the declared methodological attitude and the actual course of the textual exegesis serves as a starting point for a more profound reflection on the shadow that modern legal concepts cast onto the ancient texts and the narrowness of traditional corpus of sources in conventional Roman law research.

Open Access
In: Tijdschrift voor Rechtsgeschiedenis / Revue d'histoire du droit / The Legal History Review

Summary

Rem de qua controversia est prohibemur in sacrum dedicare, D. 44,6,3: Prohibition to dedicate the future matter in dispute into sacred sites. – The only surviving source of the prohibition of dedication is D. 44,6,3, an extraction of Gaius’ commentary concerning the Twelve Tables. It forbids the ‘in sacrum dedicare’ of a ‘rem de qua controversia est’ – both terms of unsecure meaning. This article aims to prove that the first term does not have the creation of a sacred thing in mind, but refers to the dedication of objects in temples as sacred sites, and that the second one relates especially to a future matter in dispute. The prohibition of dedication ensures the litis contestatio of the legis actio sacramento in rem and protects the pretender from a more powerful adversary, in particular a municipality, by according a legis actio sacramento in personam against the person having dedicated. Because the votive offerings to public temples were given into the arca of the temple, which was part of the aerarium. Thus, donations from the owner became res publicae.

Open Access
In: Tijdschrift voor Rechtsgeschiedenis / Revue d'histoire du droit / The Legal History Review