Roman-Frisian Law of the 17th and 18th Century
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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
(2003)
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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 |