Academic literature on the topic 'Exceptio doli (Roman law)'

AbstractIn Roman law, D. 44,4,2,3 is the reference-text for stipulation without cause. Causality is a characteristic feature of early-modern legal thinking, but it may seem alien to a text from the 3rd century A.D. Would it therefore be possible to understand that text without reading into it the stipulation without cause? If one looks for a single meaning of causa in all the passages of the Digest where the phrase appears, the term seems to have a complex significance, including both a law-suit, litigation, a legal act and a legal fact. In that light, D. 44,4,2,3 takes on another dimension, as the text explains a particular feature of the exceptio doli. This study may thus offer a caveat for differentiating, when reading a text of Roman law, between its original ancient use and its reception during the ius commune era.

AbstractThe Roman concept of assignment.–The functionality of the Roman concept of assignment is usually underestimated: although there was no real transfer of the creditor's right to the assignee, the authority to sue the debtor automatically granted to the assignee by virtue of the underlying contract provided for a similar result. It was irrevocable and exceeded the death of both the assignee and the assignor unless the latter died without heir. When suing the debtor, the assignee was not required to give a security assuring the debtor of not being sued again by the assignor. The assignee could also prevent performance to the assignor by making use of his collection authority and notifying the debtor of the assignment. This notification gave rise to a pactum which the debtor could oppose against the assignor's claim. Had the debtor not done so, the assignee could overcome the objection that performance was rendered to the assignor by way of an exceptio doli.

Renunciation of the exceptio SCti Velleiani in classical Roman law. – If the SC Velleianum was applicable to the intercessio by a woman, she received an exceptio SC ti Velleiani against the creditor. According to Paulus D. 16,1,31 and Pomponius D. 16,1,32,4 and hence classical Roman law, she was in a position to virtually renounce the defence by providing surety to either the debtor or the creditor. By this means, the woman was not any longer protected against her declared intention. Thus, the Roman jurists effectively reduced the risk for a woman not to find a con­tractual partner (Paulus D. 16,1,11), which was particularly decisive for a business woman.

‘LONGI TEMPORIS PRAESCRIPTIO’ AS A DEMURRER IN THE MATTER OF LONG POSSESSIONSummary During centuries Praescriptio longi temporis has changed its meaning, requirements, application and nature, therefore, it seems to be adequate, to use it as a subject of the conference entitled “Law at the turn of the century”. This term derives from the Greek law. During the Pre-Classical Age it had its specific nature of an usual procedural privilege, granted on the basis of a long lack of action taken from the opposite party. Since the 1st century AD it had been used in Roman provinces and between peregrines. In Justinian’s era, after the combination with usucapio, it gained the acquiring nature. Praescriptio longi temporis, as a system operating according to the Greek conception, was, on the one hand, aimed at the ending of the insecurity of the relations resulting from the long-term provincial property possession, while on the other, it couldn’t lead to acquire their ownership due to the fact that they belonged to the Roman State. As the extinguishing limitation, it resembled the roman exceptio, after the defendant, and rei vindicatio, after the owner. It was set against the owner who revindicates, who would have left the provincial land unsecured for the period of 20 years, if the case had concerned subjects inhabiting different provinces (inter absentes) and for the period of 10 years, if the sides had inhabited the same province (inter praesentes). At the turn of the 3rd and 4th century AD it gained the acquiring effectiveness that convinced Justinian to conduct a fundamental reform by which virtue, from the combination of usucapio and longi temporis praescriptio, ordinary acquisitive prescription originated and extraordinary acquisitive prescription was introduced – longissimi temporis praescriptio.