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JUS - 2015 - 1. Il Diritto romano nella civilistica europea

digital JUS - 2015 - 1. Il Diritto romano nella civilistica europea
Fascicolo digitale
rivista JUS
fascicolo 1 - 2015
titolo JUS - 2015 - 1. Il Diritto romano nella civilistica europea
editore Vita e Pensiero
formato Fascicolo digitale | Pdf

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Primo fascicolo del 2015

ARTICOLI

Il diritto romano nella civilistica europea
di Frits Brandsma, Dmitry Dozhdev, Francesco Giglio, Gabor Hamza, Lauretta Maganzani, Cosima Moller pagine: 3 Scarica
Informationspflichten des Verkaufers. Grundlagen im romischen und im heutingen deutschen Recht
di Cosima Moller pagine: 20 € 6,00
Abstract
Information duties in sales law reflect different conceptions of contract law which is basically founded on the principles of self-responsibility and good faith. They serve as as protection of the buyers as well as limits of the sellers’ liability. Concerning the question of the possible bases of information duties, Roman and German law show interesting similarities and differences. In Roman law information duties are determined in the edict of the aediles curules, in considerably different interpretations of bona fides by Roman jurists and in precise contractual agreements. In nowadays German law, there are information duties fixed by statutory law in the context of the contract even before its conclusion and duties based on the principle of good faith (§ 242 BGB). Special agreements on information duties which go beyond the possible concreteness of legal regulations are implemented. The interpretation of the legal and contractual framework leads to remarkable differences based on diverse concepts of contractual obligations.
Reconstructing the Jurist’s Reasoning: ‘Bona Fides’ and ‘Synallagma’ in Labeo (D. 19, 1, 50)
di Dmitry Dozhdev pagine: 20 € 6,00
Abstract
The text of Labeo advances bona fides as a normative foundation of the mutual obligations arising from the contract of sale. In the last years this text was treated from a political and ideological perspective, while it seems to present an outstanding dogmatic reasoning that can be revealed through analysis of the jurist’s argument as dealing specially with the legal construction of the interdependent contractual obligations (synallagma). The public act (lex publica) liberating the buyer from his duty to pay the price could only be a statute derogating all monetary debts (lex de novis tabulis). Since such lex is not known at the time of Labeo, the scholastic character of the case under discussion is supposed. The obligation of the buyer should have been previously transformed (novatio) through a special stipulation to become an independent monetary obligation that could be derogated by the lex publica. In general the effect that such a stipulation should have on the mutual obligations of the parties became the recurrent issue of Roman jurists’ practical decisions since the second century BC. According to Varro, whose texts reflect the situation of the third and second century BC, the stipulated monetary obligation of the price did not substitute the contractual obligation of the buyer, but existed along with it. The texts written in the first century BC by Alfenus on this issue are ambiguous. Later on, the novatory effect of the stipulation of the price is beyond doubt. In the second century AD Julian tries to treat the monetary obligation of the buyer in line with the usual mutually conditioned obligation based upon the contract of sale. It seems that Julian is following the idea advanced by Labeo in D. 19, 1, 50 who defended the seller from the claim of the buyer relying on the mutual dependence of the obligations of the parties notwithstanding a previous novatio and a consequent violation of the synallagma. To sustain such an approach Labeo appeals to the bona fides principle governing the synallagmatic contracts. Being simply an element of the judicial formula of the contractual claim, bona fides in Labeo’s decision becomes the material basis of the relationship and legal principle governing contractual obligations.
La codificazione del diritto civile e il diritto romano in Ungheria
di Gabor Hamza pagine: 8 € 6,00
Abstract
This text deals with the history of Hungary civil law codification process and the troubled adventure experienced by the Hungarians while drafting the Constitution, until the publication of the latter in 2012. For each project of codification and each final text, all references to Roman law principles are indicated as well as the description of the editors attitude towards Roman law tradition.
Roman Law in the Modern English Legal Literature
di Francesco Giglio pagine: 17 € 6,00
Abstract
Although the Reception of Roman law did not take place in England, Roman law used to play an important role in legal analysis. The paper considers whether this relationship survives in the modern English legal literature. To this purpose, the main modern contributors to the Roman law English law debate will be presented with a focus on Peter Birks and his legacy to English law. It will become clear to the reader that the influence of Roman law upon modern English law, strong until the sixties of last century, is rapidly fading.
The Privy Council and Roman Law
di Frits Brandsma pagine: 15 € 6,00
Abstract
The Privy Council, or more appropriately called the Judicial Committee of the Privy Council, was and is the highest court of appeal for many current and former Commonwealth-countries, overseas teritories and crown dependencies of the United Kingdom. In that capacity the Committee has the task to judge according to many different kinds of law, because since Calvin’s Case (1608) Sir Edward Coke’s doctrine holds in lands conquered from Christian kings the existing laws remained in force unless and until they were formally replaced by English law. It had to administer Roman-Dutch law from South Africa or from Ceylon, or French law from Quebec, or the common law of England from Ontario, or curious mixtures of law which prevail in various colonies, sometimes Roman law. One of the cases decided by the Privy Council dealt with Roman law as applied in the jurisdiction of the Parlement de Paris in France in the seventeenth century, in a nineteenth-century case from Quebec.
La ‘tradizione’ nel diritto civile italiano: l’esempio dell’azione di rivendica e della cd. probatio diabolica
di Lauretta Maganzani pagine: 15 € 6,00
Abstract
The discipline of art. 948 of the Italian civil code on ownership claim has been strongly influenced by the historical tradition and represents an exception to the today general principle of the atypical nature of the claim. The severity of the burden of proof imposed on the plaintiff (so called probatio diabolica), in particular, makes the discipline difficult to apply in practice, but a review of the historical tradition can help to overcome these difficulties concerning the enforcement of the discipline itself.
Religion and Public Transport: between Religious Pluralism and State Neutrality
di Silvia Meseguer Velasco pagine: 24 € 6,00
Abstract
As part of the public services, transport is one of those areas where tensions have arisen as the background derived from the significant presence of the religious factor in the public space. Disputes have reached various well known issues by the American and Strasbourg Case Law and, likewise, in Spanish tribunals. In this work, the clustering has been undertaken following two parameters. The first one, those influencing the transport of individuals (generally public, but occasionally including private references). The second, those influencing the right of religious freedom or freedom of conscience of the citizens, acting either as users or employees of the transport companies – public or private – who manage those services. Before analysing the mentioned casuistry, the notion of the State ideological-religious neutrality must be defined in this particular field as a necessary condition to guarantee an adequate protection of the freedom of religion and belief.

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