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Aniceto Masferrer

Summary

This article aims to describe the reasons for the decline of customary law in the early modern era. Confining the discussion to a limited geographical setting – the Iberian Peninsula – the arguments I used might be easily applied to other European jurisdictions. Part I presents an explanation of the predominance of custom in the medieval Spanish legal traditions. Part II describes the general features of the law in the early modern era, since they contributed – to a greater or lesser degree – to the demise of custom. Part III focuses more specifically on the theoretical and practical reasons for the decline and displacement of custom in early modern Spain. Part IV describes the consequences of the Decrees of Nueva Planta (1707-1718), approved by Felipe V in the context of the War of the Spanish Succession (1700-1714), regarding the development of the notion and role of custom in the eighteenth century. The article concludes with some reflections, emphasising that although customs do not easily co-exist with the state or a strong political power, neither do they entirely perish.

Laurent Waelkens

Summary

The study of the Roman law we know today, started in the twelfth century and was based on sources preserved from Roman Antiquity. The interpretation of these antique texts was, however, always contemporary and never reflected their original meaning. In this article we assess the importance of medieval and early modern interpretation and, by analyzing a series of thirteen classical notions of Roman law, illustrate how what we call “classical Roman law” nowadays found its origins especially in Early Modern Times. The article also brings an English summary of a series of articles we wrote in French and Dutch.

The long journey of ‘Privatautonomie’

The history of a concept coined and exported in times of persecution

Arndt Kiehnle

Summary

Individual autonomy was rediscovered in modernity when it came to the persecution of dissenters in Germany after the Reformatio n. Since the 18th century the ‘Privatautonomie’ of the individual has been established in German private law. Later, in the 19th century, the term autonomy gained ground in the legal terminology of French private law, also thanks to the German emigrant Foelix. In the 20th century autonomy, not least thanks to German-speaking jurists who fled from the Nazis, became a legal term also used in the private law of the USA and Great Britain.

R. Bobbink and Q. Mauer

Summary

The authors examine how papyrological sources from Roman Egypt written in Greek on antichresis relate to classical Roman law. Antichresis attested in papyrological antichretic contracts had a lot in common with antichresis emerging from Roman dispute resolutions. There was only one substantive difference: in classical Roman law, protection of the debtor was emphasized, whereas in the Greek papyrological antichretic contracts the position of the creditor was favoured. Given the similarities found, the authors conclude that antichretic loan both as an independent legal institution and as a pactum antichreticum was a pan-Mediterranean legal concept.

J. Monballyu

Summary

Banditism in the French period in the department of the Lys, 1796-1813

Guido Rossi

Summary

For a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think that the different legal framework of civil and common law courts progressively led to very different interpretations of the same thing. Thus, with the shift of insurance litigation from mercantile justice to law courts maritime barratry began to acquire increasingly different features in the two legal systems. Very often, the very same conduct of the shipmaster was considered as negligent by civil law courts and barratrous by common law courts. The difference was of great practical importance, for many policies excluded barratry from the risks insured against. So, depending on the kind of law court, an insurer could be charged with full liability for the mishap or walk away without paying anything. If the beginning of the story was the same, its end could not have been more different.

Moneta e cultura giuridica

Un brocardo di Azzone nella costruzione del diritto pecuniario medievale

David De Concilio

Summary

Dmitry Poldnikov

Summary

In the second half of the 19th century Russian positive law underwent a rapid and profound reform. It is best illustrated by the legislation in the domain of civil law, as one compares the pre-reformed casuistic and inconsistent Svod Zakonov (Digest of Laws) of 1833 and the ‘westernised’ Draft Civil Code of 1905. This transition was largely facilitated by the emergence of a fully-fledged comparative legislation in Russia.

Zur Methodologie der Rechtsgeschichte in Deutschland zwischen 1918 und 2018

Ansprache zum 100-jährigen Jubiläum der Gründung der Tijdschrift voor Rechtsgeschiedenis

Hans-Peter Haferkamp