Civil Law – Historical Roots Roman law Actors: jurist, praetor, judge Justinian Corpus Juris Civilis Method of determining Roman law Glossators Commentators

Civil Law – Historical Roots

Roman law Actors: jurist, praetor, judge Justinian Corpus Juris Civilis

Method of determining Roman law Glossators Commentators Authorities: treatise writers


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


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)



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


Hagia Sofia (537AD) greatest church in Christendom converted into mosque by Mehmet II buttresses added by Sinan (1571)


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?


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


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?


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?


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


Hermessen Matthaeus


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?


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?


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!


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”?


South Africa


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)



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


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?


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?


Bank of Lisbon


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

Documents

Civil Law – Historical Roots Roman law Actors: jurist, praetor, judge Justinian Corpus Juris Civilis Method of determining Roman law Glossators Commentators