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Lokin, J., Brandsma, F., Jansen, C. (2003). Roman-Frisian Law of the 17th and 18th Century. Duncker & Humblot.
Lokin, Jan H. A. Brandsma, Frits and Jansen, Corjo. Roman-Frisian Law of the 17th and 18th Century. Duncker & Humblot, 2003. Book.
Lokin, J, Brandsma, F and Jansen, C (2003): Roman-Frisian Law of the 17th and 18th Century, Duncker & Humblot, [online]


Roman-Frisian Law of the 17th and 18th Century

Lokin, Jan H. A. | Brandsma, Frits | Jansen, Corjo

Schriften zur Europäischen Rechts- und Verfassungsgeschichte, Vol. 45


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This book deals with the foundations of legal practice in Friesland in the 17th and 18th century, specially with the way in which the Court of Friesland made use of the texts of the ius commune in it's judgements. With the help of the until now unexploited archives of the Frisian Court a selection of civil cases and legal opinions has been made which will not only interest the legal historian but the modern lawyer as well. Legal problems about for example minority, assignment, encumbrances, liability, sale, tort etc. are explained and discussed.

The practical solutions of the Court based on Roman law texts taken from the Justinian Corpus Iuris Civilis enlarge the knowledge of the reader and his comprehension of the dogmatic and historical aspects of each case. If possible a comparison with Roman-Dutch law is made and each chapter ends with a reference to modern Dutch laws, illustrating the 'eternity' of the legal problems dealt with. The book also makes clear why the Frisians considered themselves as most tenacious adherents of Roman Law: juris Romani tenacissimi. Convinced of themselves the Frisians members of the Court travelled along the 'pure' Roman highway while the jurists of other provinces and countries often had left the road and taken sidepaths. The book shows us that we in fairness may speak of an independent branch in the big tree of the ius commune: Roman-Frisian law.

Table of Contents

Section Title Page Action Price
Table of Contents 5
Preface 11
Chapter I: The Court of Friesland: A brief history of the institution 15
1. The creation and development of the Court of Friesland 15
2. The jurisdiction of the Court of Friesland 20
3. The applicable law 21
4. The mutual relationship between Frisian and Roman law 28
5. Conclusion 30
Chapter II: The beguiling ensign: The adventures of a minor under the patria potestas 33
1. Minority 33
2. Patria potestas 35
3. Minority and patria potestas in everyday practice 36
4. The applicability of the senatus consultum Macedonianum 38
5. The grant and ratification of an hypothec 40
6. An initial ancillary issue: the exceptio non numeratae pecuniae 43
7. A second ancillary issue: dolus (deceit) 46
8. Conclusion 48
Chapter III: The task of a meticulous administrator: Perils surrounding an investment not made 51
1. The administration of property 51
2. A closer look at the case of Wigeri and Beerents v Feijens and others 53
3. The task of a meticulous administrator 55
4. Conclusion 61
Chapter IV: On women in need of assistance: The prohibition of intercession 64
1. The prohibition of intercession 65
2. Restrictions on the prohibition of intercession 68
3. Error of law 73
4. Renunciation 75
5. Renunciation otherwise than by a public instrument 77
6. Conclusion 82
Chapter V: The assignee who did not give notice of the assignment: On assignment 85
1. Assignment under Roman law 85
2. Assignment under the ius commune 87
3. The instrument of assignment 90
4. The constitutio of the Emperor Gordianus 92
5. Personal knowledge on the part of the debtor 95
6. Conclusion 101
Chapter VI: “Mobilia habent sequelam”: Hypothecs on cows and horses or: on Friesland, where the jus Romanum is closely observed 103
1. A black-starred mare 103
2. Roman law or Germanic law? 104
3. Roman-Dutch law 109
4. The case of Fenema versus Heringa, or the position under Roman-Frisian law 115
5. The decision of the Court: ruinous to all traders? 124
6. Jus apud Frisios, utentes doctrina juris Justinianaei 125
Chapter VII: “A little bit longer”: Or “How much longer Roman feet were than Frisian ones” – Can the proprietor of a servient tenement relocate a servitude? 128
1. Vexatiousness? 128
2. In a proper manner 129
3. The communis opinio doctorum 135
4. Roman-Dutch law 136
5. Back to the proceedings between Bruinsma and Jans and Roman-Frisian law 138
Chapter VIII: The disappointed heir: The unwilling victim of the cautio Socini 141
1. A closer look at the law governing testamentary dispositions 142
2. The cautio Socini 144
3. Cramer versus Cramer 145
4. A further look at the cautio Socini 150
5. A few incidental remarks concerning private international law 153
6. Conclusion 155
Chapter IX: The purchase of a ruin at public auction: is the doctrine of laesio enormis applicable? 158
1. Introduction 158
2. Laesio enormis in Roman-Frisian law 159
3. The applicability of the concept of laesio enormis in the case of a public auction 162
4. The case of Eentjes versus Ydema 164
5. Legal and factual basis of the arguments and counter-arguments 165
6. Conclusion 167
Chapter X: The ignorant churchwardens, or: is a vendor required to deliver what he has sold free from all burdens and encumbrances? 171
1. A “modern” question? 171
2. Nyncke Heinsius and her fellow heirs versus the churchwardens of Akkerwoude 172
3. The vendor’s indemnification obligation under Roman law in cases concerning charges and burdens attaching to real property 174
4. Roman-Dutch law 179
5. Roman-Frisian law 184
6. Conclusion 193
Chapter XI: Farming agricultural land oneself: “Sale does not break hire”? 195
1. The case of Roels versus Rispens 195
2. Roman law 196
3. Roman-Frisian law 198
4. The arguments advanced in the case of Roels versus Rispens 199
5. Does a sale not break hire? 202
6. Conclusion 204
Chapter XII: Penalties, damages and compensation for pain and suffering: Rights of action arising from a tort 206
1. Penal or reipersecutory? 206
2. The litis contestatio 209
3. Penalties and the calculation of damages in cases of injury 214
4. Compensation for pain and suffering 222
5. Conclusion 225
Chapter XIII: The incompetent lawyer: Payment of fees and professional liability 229
1. The legal relationship between a lawyer and his client under Roman law 230
2. The honorarium 232
3. The concept of a reasonable honorarium in the ius commune 235
4. Incorrect judicial decisions 237
5. The condictio indebiti founded on an incorrect judicial decision 240
6. Restitutio in integrum 245
7. Professional liability 247
8. Conclusion 250
Chapter XIV: To prevent the bloodthirsty enemy from carrying out his cruel plans: lawful acts of the authorities and the Rhodian law on the throwing of goods overboard – A Roman-Frisian Quint versus Te Poel 252
1. Lawful or unlawful? 252
2. The case of Sierck Lieuwes versus the States of Friesland 254
3. The basis of the Court’s decision 258
4. Roman-Dutch law 264
5. Roman-Frisian law 265
6. Conclusion 268
Concluding observations 269
Documents from the Rijksarchief Friesland (Friesland Public Records) 277
List of sources 279
Bibliography – Full titles of works cited under their abridged titles 287
Index 289