Latin American Law

Last updated 07 Sep 11

Medieval law> Canon law> Law merchant

Classic Roman Law(100AD - 300 AD)

Swiss Civil Code(1907)

Austrian Civil Law(1812)

Louisiana

Civil Code

(1808)

German Civil Code (1900)

French Civil Code (1804)

Turkish Civil Code(1926)

Italian Civil Code (1942)

Japanese Civil Code(early 1900s)

US Law

Is common law or civil law more like Roman law?

• Precedents • Forms of action (remedies)• Stages: writ / proof • Proof left to layperson• Law / equity distinction

Why study “medieval” law …

• Model for borrowing

• Gain perspective

• Discover truths

• Impose / power

Value of knowing other legal systems

Consideration

X promises Y (1) to transport 10 flasks of wine

for Y and (2) to marry his daughter

Y makes no promise in return

Is X bound on his promises?• Roman law• Canon law• Law merchant

Roman law

• Nuda pactio obligationem non parit– A naked agreement [without

consideration] does not create an obligation. Dig. 2.14.7.4.

– Ex nudo pacto non oritur actio. No action arises on a contract without a consideration.

• Stipulatio – formal contract by which promisor

(and only promisor) becomes bound– Sixth century AD: exclusively written

Canon law

• Pacta, quantumcunque nuda, servanda sunt– Agreements, even naked ones,

must be kept (Pope Gregory 1234)– Pacta sunt servanda - agreements

must be kept

• "Every treaty in force is binding upon the parties to it and must be performed by them in good faith.“ Vienna Convention on the Law of Treaties, Art 26

Keith Orgel:Church jurisdiction?

Law merchant

• Lex mercatoria: abandoned consideration requirement– Customs of merchants– Encourage commerce– Specialized courts / procedure

• UCC 2-204: An offer by a merchant to buy or sell goods in a signed record that [assures] it will be held open is not revocable, for lack of consideration …

Jim Rodden: what is fairness?

Canon law …

Trevor Ostbye:History / aspects of Roman law?

Canon law

Canonists - commentators • Academics• Scholastic method

Natural law

Papal decretals

Canons of church councils

Bible

Corpus iuris canonici(marriage, succession, crimes)

• Concordantia discordantium canonum (Decretum) , compiled by Gratian, 1140

• Decretals of later popes (Boniface VIII, Clement V, John XXII)

Roman law

Gratian, Father of the Canon Law. “He associated the Scriptures with natural law, a changeless source of law written on

our hearts by God”

Canon law persistence• Argentina civil code: denied non-

Catholics the right to marry, did not allow divorce (same in Chile, Brazil)

• Uruguay civil code: husband can seek a divorce if his wife commits adultery, but not vice versa.

Times are changing• Argentina Law No. 23,179 (1985):

women equality regarding joint custody, equal rights for children born out of wedlock.

• El Salvador (2004): ban common practice requiring women to submit to pregnancy test to work.

• Same-sex unions: Argentina, Brazil, Colombia, Ecuador, Mexico, Uruguay

Keith Orgel: Why is LatAm less boundby religion compared to US?

Pelligrini v. Italy (ECHR 2001)

National law vs. church law

Lex Mercatoria ...

Trevor Ostbye: why not Roman law?

Jim Rodden: role of scholar in each?

Needs of merchants

Commercialcustoms

Commercial codes(ex acqueo et bono)

Merchant tribunals• Expert judges• Expeditious procedures• Equal treatment to outsiders

Venice

Amalfi

Genoa

Barcelona

Law Merchant

Pisa

Law merchant E-commerce law

Trevor Ostbye: how has Ebay created law merchant / good or bad?

William Murray, 1st Earl of Mansfield

• British judge, House of Lords• Father of “English commercial

law”– Based on Roman and law

merchant– Defined principles of

commercial law• So consider origins of UCC

– “trade usage” / “just price” / “good faith”

– Karl Llewellyn / Soia Mentschikoff

Lord Mansfield (1705-1793)

Trevor Ostbye:Why not rely on common law?

Delaware(corporate law)

NCBusinessCourt.net

Venice(law merchant)

But where did corporate structure come from?

Jim Rodden: how many US states have business courts?

End

Johannes Andreae, Sarcophagus, Bologna

Law merchant LatAm commercial law

Spain also opened "sea councils" in cities like Mexico and Lima to solve maritime and commercial controversies over its conquered territories. Later,

during independence, Latin America countries developed their own commercial codes, massively

influenced by the medieval Law Merchant.

Joel

Law merchant E-commerce law

I find it unsurprising that merchants would develop self-governing laws in Medieval times

or in the present day.

Lauren Connell

The online Law Merchant’s ability to continue as the primary regulating force in the online

marketplace will be challenged and, I predict, come to an end.

Lauren Connell

Canon law and law merchantin Panama

Family law / death penalty /

Separation of civil and commercial law

Joel de León