Faculty of Law 2009/2010

Legal History Coursebook

European Law School
English track

Year 1 Courseperiod 3
MET1005

2009-2010 Course 1.3 Legal History

Faculty of Law

Maastricht University

CONTENTS

Chapter 1: Introduction 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 Objective Operating procedure Studying effort Teaching format Literature Examination Course alterations Planning group p. 1 p. 1 p. 2 p. 2 p. 3 p. 3 p. 4 p. 5

Chapter 2: Individual assignments 2.1 2.2 2.3 2.3 2.4 2.5 2.6 General Re-sit Submitting assignments Contents Formal requirements Contents Fraud p. 9 p. 9 p. 9 p. 8 p. 10 p. 10 p. 15

Chapter 3: Tutorials Week 1: Roman Law Tutorial 1: Legal systems of Roman law in Antiquity Tutorial 2: Roman contract law Week 2: Reception and Ius Commune Tutorial 3: Legal systems in the period of Reception and Ius Commune p. 23 Tutorial 4: Contract law in the period of Reception and Ius Commune Week 3: Codification Tutorial 5: Legal systems and Codification Tutorial 6: Contract law and Codification p. 27 p. 29 p. 25 p. 19 p. 21

Glossary

p. 3

1. INTRODUCTION

1.1 Objective This course provides an introduction to both the external legal history of Europe and the internal study of substantive historical legal concepts. To this end, you will analyse and solve a number of simple cases in their historical context, applying the knowledge and insights of legal history and the methodology of legal-historical research gained during the course. Legal history as an academic discipline has multiple dimensions. The most pure form is the fundamental research of the legal historian into the development and application of law and legal rules in their historical context. This is essential for scholars of modern law, since good legal historical research is a basic element for comprehending modern law. Legal history contributes in many more ways to modern day lawyersunderstanding of law. The legal historical dimension is an important component in most, if not all, contemporary legal research. Here fundamental legal historical research and fundamental comparative research merge in an ever-fruitful manner. In our faculty, and most especially in the European Law School, the comparative method stands at the core of our research and the educational curriculum. It is therefore to be expected that the legal writings produced by students in this faculty will be of a comparative nature. This necessitates knowledge of legal history and legal historical research methods. The knowledge gained in this course is therefore not only immediately applicable to, for instance, your bachelor essay or master thesis: those aiming to perform at higher level will find legal history s s an indispensable element of their writings. An objective of this course is to give an introduction into the external legal history of Europe, from Roman Antiquity to the present day. External legal history focuses on law in a broad historical context, including both the development of legal science and the development of the in action that is, the practice of law. law , The history of specific legal concepts and institutions belongs to the so-called internal or substantive legal history. All lawyers must be able to interpret historical legal rules within their historical context. If not, the dangers are that anachronistic interpretations will lead to incorrect conclusions, resulting in, at the least, a less valuable outcome of research. An example: when looking at Roman contract law from the modern viewpoint on the concept of consensus it is , easy to come to the wrong conclusions regarding the enforceability of early types of contract. In this course, you will get acquainted with the substantive dimension of legal history. This will not (yet) concern fundamental research, but substantive historical research in an applied form. This research will be based on primary sources and modern subsidiary legal historical literature. It is impossible to discuss in depth all substantive law in a historical perspective, so a choice had to be made. The planning group has chosen to focus on the historical dimension of contracts, as this is an extension of the course on comparative contract law taught in the second period. You will therefore be presented with three cases, which are to be studied based on historical sources and modern legal historical literature. The objective here is for the students to learn interpreting the applicable legal rules within acceptable legal historical parameters, as well as placing these interpretations within the wider scope of the external legal history. 1.2 Operating procedure For educational purposes, we discern three major periods in our study of legal history: the Roman law period, the period of, roughly said, the ius commune and the Codification period. Each week of the Legal History course, we will focus on one of these periods. Each week will be 4

concluded with an assignment, which involves solving a case situated within that period by applying the historical legal rules of that particular time. Before the case can be solved an accurate description will have to be given of the governing legal system. To show your understanding of the legal system place within the wider scope of law development, the first s s step is to discuss external legal history, both in a general and a practical sense. Thus, you will write a short essay every week, consisting of three necessary parts: a description of external legal history, an exact description of the legal system involved and the solution of the case. How to go about this will be discussed in more depth later in this course manual. 1.3 Studying effort The Legal History course provides 4 ECTS. Each ECTS stands for 28 hours of study, giving Legal History 112 hours in total. Divided over the three weeks of the course, this means an average of approximately 37.5 hours per week should be spent on (preparation of) lectures, tutorials and assignments. This amounts to practically a full working week, therefore you will have to plan your efforts accordingly. This also means it is not a good idea to combine other educational activities with the course Legal History. Second year students, nota bene: as with the other first-year courses, you are not allowed to participate in either classes or exams of any second-year courses or higher, as long as you have not passed Legal History. This specifically concerns the courses Burgerlijk Procesrecht, Rode Draad and Private International Law. 1.4 Teaching format Lectures Every Tuesday for three weeks, two consecutive lectures will be given. Time and place of these lectures will be made known both in your personal Timetable and on EleUM. These lectures concern the external legal history and offer necessary support in studying the book by P. Stein (see below). The PPT slides of the lectures can be found on EleUM. It is a good idea to print these and bring them to the lecture, as a basis for your note-taking. It is an even better idea to prepare the assigned pages of Stein before the lectures. The lecture schedule is as follows: Week 1: Roman law in Antiquity (Stein, p. 1-41) Week 2: Reception and Ius Commune (Stein, p. 41-103) Week 3: The codification period (Stein, p. 104-132) Self-study modules Four self-study modules have been made available on ELEUM. Along with the lectures, these modules are a supplemental study aid for the book by P. Stein. The modules contain questions as well as texts, links and images. You can access the modules at the time that best suits you, keeping in mind the material of module 1 will, primarily, be covered in week 1 and the material of modules 2 and 3 will be covered primarily in week 2. Week 3 will be devoted to the material of module 4. In the opinion of the course coordination team, the self-study modules are essential to the successful completion of this course

Tutorials In addition to the lectures, 6 tutorials will take place, twice-weekly during the three weeks of the course. These tutorials will take place on Wednesdays and Fridays. Your Timetable will tell you which group you are assigned to. In the Wednesday tutorial the focus will be on how to go about describing a historical legal system within the period under scrutiny that week. This includes topics from legal practice, such as judicial procedure and the study of primary source texts. In the Friday tutorial our attention will be on the substantive legal rules in the context of the law of contract. See Chapter 3 (Tutorials) in this course book for texts that should be read and questions that should be answered prior to the tutorials. You will notice that the questions follow roughly the same pattern each week. This is done deliberately, to allow you to become acquainted with both the differences and the similarities in legal thinking in the periods discussed. It is expected that you will come prepared. There is little point in coming to a tutorial unprepared. Your tutor therefore has the right to refuse to allow you to participate if you are insufficiently prepared. Individual assignments As has been stated above, an individual assignment based on a particular case must be completed during each week of the course. In order to complete these assignments satisfactorily, the knowledge that has been gained during the lectures must be combined with the knowledge gained during the tutorials (for further information, see 1.5 and Chapter 2 of this manual). 1.5 Literature P. Stein, Roman Law in European History, Cambridge: Cambridge University Press, 2002 or later edition. R. Feenstra & M Ahsmann, Contract. Contractand freedom of contractin historical perspective (available in ELEUM). Self-study modules (available in ELEUM). Additional reading materials (reader).

1.6 Examination Your grade for this course is based on the three weekly assignments. Each of these assignments consists of three elements: a general external legal historical part, which delineates the developments of law in that period. A specific external legal historical part, which describes the legal system governing the time of the assignment case in detail, and a substantive part, in which the assignment case is analyzed and solved by applying the legal rules of the time. From each of these three assignments, one of the three parts will be selected for grading, such that each part is graded once out of three. This means that, if the general external legal historical part of the first assignment is graded and the solution of the case of the second assignment, automatically the description of the legal system in assignment three will be selected for grading. The average of the grades for the three assignments, rounded off to the nearest integer, will constitute the final grade for Legal History. Which part of which assignment will be chosen for grading will not be made known during the course. The re-sit will consist of three new assignments. These will be released in the last tutorial week of Period 4, to be handed in before 17:00 on the Friday of the resit week at the end of Period 4.

1.7 Course alterations We are happy that the number of students taking the time to fill in the IWIO course evaluation for Legal History keeps growing. This gives the planning group an excellent opportunity to keep strengthening and improving this course. The changes we made to the course, based on last year evaluations, are: s Tutorials: A great number of students complained that one tutorial a week was not enough to deal with the extensive periods covered. The planning group agrees, therefore we have added a second tutorial each week. The two tutorials will take place on Wednesdays and Fridays every week. The first tutorial will be focused on learning how to research and write the second part of the assignments, the description of the legal system. The second tutorial will concentrate on the substantive knowledge of contract law rules. Lectures: IWIO showed that students were unhappy with the placement of the second weekly lecture at the end of the week, after the tutorial. Therefore, we have chosen to place both lectures at the beginning of the week. Logistics, however, only allow for this when both lectures are given on the same day. For this reason, weeks will start with a double lecture on Tuesday. Exam: According to a large section of students, the short time span of the course gave too little time to prepare well for Legal History written exam. This was compounded by the amount of s time needed to do the assignments well. The planning group values the assignments as one of the most important elements of this course. The knowledge of historical sources and how to find them, as well as the ability to execute proper substantive legal historical research, gained by students through producing the assignments has a clear surplus value, as these accomplishments effectively can and must be applied in later elements of the ELS curriculum (see 1.1). We have thus decided to drop the written examination and examine the course through the assignments. The general external historical element formerly comprised in the written exam has been incorporated into the assignments. Assignments: Many respondents were less than content with the fact that in previous years only one out of three assignments was graded. This is understandable, but within the norm hours set aside for grading in the faculty, the staff does not have the time to grade all three assignments completely. As we can understand the frustrations of the students in this regard, the planning group has tried to find a solution that does justice to the studentswish within the faculty s parameters. From this year onward the assignments will consist of three elements: a general external historical part, a description of the legal system that governs the assignment case and an analysis and solution of the assignment case. Each of the assignments will be graded, but not completely. From every assignment, one part will be chosen, in such a manner that all three elements are graded once. This way we will achieve the best possible grading coverage, giving attention to the total effort of the students. Studying effort: IWIO showed that students were not familiar with the studying effort guidelines applicable to this and other courses. A feeling that Legal History took too much of the studentstime was communicated, although at 25.5 hours a week the mean average of studying efforts lay below the level of what could be expected of the students. Therefore, a section ( 1.3) has been inserted into the course manual, clarifying the expected level of studying effort.

There are also a number of issues where effecting change lies not within the power of the planning group, or where ponderous reasons preclude changes. Course period: A sizable group of students indicated a preference for placement of Legal History in an 8-week course period. Obviously, the planning group does not have authority to effect curriculum changes by itself. Considering the streamlined programme for the first year, combined with policy choices at faculty level, moving Legal History to another time slot is as yet unattainable. Group size: Neither students nor staff are very happy with the group size in Legal History. Here, however, we encounter a physical barrier to accommodating the sincere wish for smaller groups. In this course period, the legal historians are offering two mandatory first-year courses side by side. This causes such a heavy peak load for the staff that, for any chance to be able to succeed in this, it is an absolute necessity to keep the number of teaching groups to a minimum. A minimum number of groups means, alas, maximum group size. The coordination team have prepared the course manual, teaching material and organization of this course with the utmost care. We are therefore very much interested in your reaction to the changes effected in the course. The team will continue to work on strengthening and improving this course. Your comments can help us with this. So, make good use of your influence and fill out the IWIO evaluation at the end of the course! Nevertheless, it is always possible that something in your course manual remains obscure to you. In that case, ask your tutor or come to the open office hours of the course coordinator, Tuesday to Friday, 17:00 17:30. 1.8 Planning group Course coordinator: Dr. J.A.J.M. van der Meer, LLM Open office hours during the course: every day Tuesday to Friday 17:00 17:30, Room 0.317 Planning group: Prof. Dr. C.H. van Rhee Prof. Dr. A.M.J.A. Berkvens

2. INDIVIDUAL ASSIGNMENTS

2.1 General During the course, students must complete three individual assignments, one individual assignment each week. These assignments will be posted on EleUM, under Legal History. For the assignment, students are to combine the knowledge gained during the lectures with that gained during the tutorials. The assignments all consist of three elements; each of the three assignments will be graded in part, one element will be chosen for each assignment and for each assignment, a different element of the paper will be graded. This way, all assignments and all elements will be taken into consideration. The chosen element of a paper will only be graded when marginal review of the other elements shows sufficient diligence on the part of the student. Consequently, students should produce three assignments of the highest quality throughout. Which element of which paper is going to be graded will be decided after the course has finished. Therefore, there will be no earlier notice as to this choice. 2.2 Re-sit The re-sit consists of three new assignments, one for each historical period. These assignments will be made available through EleUM under Legal History at the beginning of the last tutorial week of period 4. The assignments will have to be submitted through EleUM before Friday 17:00 in the week of the re-sits. The choice of which element for which assignment is going to be graded for the re-sit may differ from that of the first exam. For this and other reasons, it is not possible to retain results of first-exam assignments. 2.3 Submitting assignments Assignments must be submitted electronically through EleUM under Legal History. See the document Submitting assignments on ELEUM. You have already encountered requirements for naming a document that is to be submitted in the course of your Skills training. You have encountered guidelines and rules on the naming of your documents already in the course of your Skills training. The naming rules for the Legal History assignments differ very slightly from the Skills training rules. Please consider them carefully; mistakes made in concern to the naming rules will inevitably lead to exclusion of the submitted assignment. The documents that are to be submitted must be named as follows: IDnumber-z.doc. Only the digits of your ID number are required, so do not add an i or I at the beginning; z is the single digit standing for the number of the assignment, so either a 1, 2 or 3. Do not add a 0! The ID number and assignment number are connected by a hyphen, without any space before or after the hyphen. MS Word will add the extension .doc (or .docx) automatically. An example: the student with IDnumber i123456 will submit his or her 3rd assignment as: 123456-3.doc Always check after sending your document that it has actually arrived on EleUM. This should be automatic because EleUM gives you a confirmation of your actions. It may be advisable to print out this confirmation as proof that you have submitted your assignment. You must always take into account the possibility of a technical failure. It is possible that EleUM may not work on the morning of the last day of the submission period, or that it has been down

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for so long in the days leading up to this that you could not reasonably have been expected to submit your work on time. In such cases an announcement will be made during the lecture as to whether the deadline will be extended and, if this is the case, what the new deadline is. The extension will also be shown on EleUM, as well as on the notice boards at the Education Office. Short term interruptions will never lead to extension of the submission period, even when they occur at the end of the submission period. It is therefore wise to submit your assignments earlier rather than later. Assignment 1 must be submitted electronically before 08:00 on Tuesday 12 January. Assignment 2 must be submitted electronically before 08:00 on Tuesday 19 January. Assignment 3 must be submitted electronically before 08:00 on Tuesday 26 January. Assignments submitted after the deadline will be regarded as not having been submitted. 2.4 Formal requirements The assignment must have a front page showing the following details: ID number of the author; number of the assignment (i.e., assignment 1, 2 or 3); Word count for each separate element. The assignment must be constructed in or converted to MS Word. Any inaccessibility or illegibility of the document due to conversion of the document into MS Word from other word processors is accountable to the submitting student and will lead to inadmissibility of the document in question. The submitted MS Word document must be named IDnumber-z.doc. Each assignment must have an index of sources and an apparatus of referencing footnotes according to the guidelines of the Hornbook on Legal Writing (see EleUM Skills training). The index of sources contains only sources that appear in reference notes. Each of the assignment three elements should consist of 650-700 words. This brings the s total amount of the assignment to 1950-2100 words, not counting the index of sources or the apparatus of reference notes. Note: NO internal redistribution of the minimum/maximum word count is allowed, each element has to be 650-700 words! The assignment must be submitted through EleUM before the official deadline. To accommodate grading: The document should use letter type Times New Roman, typecase 12; The right margin should be broadened to 4 cm; Line spacing should be set at 1.5.

2.5 Contents General The individual assignments revolve around a case, which is set in the period addressed in that week. Each case consists of three interwoven elements; each of the three elements has a minimum/maximum word count of 650-700, no more, no less. Element 1: General external legal history Refinement periodization: To divide legal history into three main periods, as we have done in this course, is of course only a very rough delineation. Especially week 1 (a period of approximately 1000 years) and week 2 (a period of over 1400 years) cover eras that inevitably 11

show many changes and developments over time. In this segment of the assignment, you must therefore pinpoint the exact placement of the year that the case occurs within the period addressed in that week. Legal developments: Next, you are to discuss the relevant developments in law, legal science and legal practice taking place at the time of the case. If relevant, developments completed shortly (no more than 50 years) before the placement of the case or about to commence shortly (also no more than 50 years) after the placement of the case can be incorporated. Where this is done, the assignment should show clearly that the author is well aware of the fact that these developments are, at the time of the case, future or past events. The underlying causes for the completion or start of these developments have to be exposed. General topic: The main part of this element, next to the two preceding aspects, which concern the assignment case, concerns a discussion of a general topic concerning the general external legal history. What topic is to be discussed will be made clear in the assignment. Regarding this topic, all relevant developments, historical occurrences and underlying causes during the whole period will have to be scrutinized and reported upon. Connection assignment element didactical elements Resources for a well-executed first element of these assignments are to be be found in P. Stein s book, the lectures by prof. Van Rhee and the CALI modules. It is advisable to access other legal historical literature, to help you produce an informed opinion on the aforementioned three aspects of this element. NB: Since your references must of course allow for academic-level corroboration, only references to verifiable, therefore written (hard copy or internet) primary sources and academic-level literature are to be used in all parts of the assignment.

Element 2: Description of the legal system in force at the time of the case Legal rules do not function in a vacuum. They are part of, and function within, a legal system. Like law itself, legal systems continue to develop and evolve over time. For legal historical research to be in any way meaningful, whether it is elemental legal historical research or incorporating an, oft vital, legal historical dimension in researching modern law, knowledge of the legal systems is a necessity. Only when one knows how the legal system to which the researched legal rule belongs was structured at the indicated time or times is it possible to infer any meaningful conclusions on the subject. A more or less standard list of questions (legal systems questionnaire), with standard points of interest, helps to give form to the description of a legal system. This questionnaire differs slightly with regard to the focus of the description, depending on the underlying cause for the research. The points to be illuminated in the execution of a historical legal system description are discussed hereafter. Territory: It is always necessary to indicate the territorial reach of a legal system. It is not sufficient in this regard to limit this territorial description to within the Roman Empire or , in France In a compact, but adequate manner the territory encompassed by the Roman Empire or . France at the time of the case will have to be indicated. Demography: Even more important than the territory over which a legal system holds sway, is the population that lives under the system. The composition and social structure of their society

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is of great interest. A good description of the economic circumstances and level of prosperity in a society, as well as the social climate of the time, indicated for instance by the level of welfare, the development and social standing of the arts and other aspects of civilisation, give a good contextual background to the functioning of the legal system. Even more so than with the other aspects, a demographical description has to fit the exact timeframe of the case. Sometimes this even means that (nearly) adjoining years ask for a completely different description. An example to highlight this necessity: Let us suppose a case is positioned in the Netherlands of 1946. It is then incorrect to describe the country as occupied territory, with a population apathetic in its majority, but still partly involved in acts of violent resistance, riling the occupying forces and fomenting social unrest, notwithstanding the fact that only a short time before this had been the actual situation. Were the case positioned in 1944 on the other hand, then it would have been incorrect to say that the Netherlands was undergoing a booming economic growth, companioned with a quick rise in the level of prosperity, due to the dogged, energetic pursuance of rebuilding the country, even though only a short period later this would be the correct description. Governance: In this part of the assignment, you discuss the public format of state and government within which a legal system has force. It is convenient, though slightly anachronistic for weeks 1 and 2, to discuss this point in the format of Trias Politica: who has executive powers? How are these acquired and given form? Who has legislative powers? How are these acquired? How are legal rules, laws, and statutes brought into being? Who has judicial powers? How are these acquired? Moreover, what is their relation to the executive and legislative powers? Primary legal sources: Knowing how legal rules are expressed, whether there is a logical coherence and system to the body of legal rules and the structure of such a system, is an important factor in understanding a legal system. Keep in mind that even within a legal system the main areas of law (private law, public law, criminal law) can be structured quite differently. Legal science: The state of legal science at a particular point in time within a legal system is also a necessary component of a legal system description. This aspect often ties in with the item on s legal developments in the first assignment element. It is quite possible that the case is situated within a period that is quiet on the scientific front. Should this be the case, it is better to indicate you are aware of the fact that no clear developments can be indicated for this timeframe than to insert any developments of the (far) past or the (remote) future that clearly do not belong to the time of this legal system. One of the possibilities to give an insight to your readers on the state of legal science in the legal system under description is to discuss one or more of the great legal minds of that period. For that reason you are obliged to highlight the career of two distinguished jurists, active (or probably so) as lawyer or legal scholar at the time of the case. NB: This means you cannot choose a jurist who at that time has already died or is not yet born or is in all probability too young to be active as a jurist! Those jurists belong to earlier or later stages of the legal system involved, or even to completely different legal systems. If the timeframe of the case (nearly) coincides with the edition of important legal works, discussing these books will also help highlight the state of legal science within the legal system.

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Legal education: The format of legal education, that is how the training of new jurists is given form, can clarify many aspects of a legal system in its entirety. Whether lawyers are formally trained, in school or at university, what fields or even systems of law they study, what educational methods are used, what roles jurists play in society for which their education trains them, what percentage of trained jurists are active outside the traditional legal occupations are all factors important to the understanding of a legal system. Jurisdiction: a description of a legal system will remain a truly academic, theoretical exercise, unless sufficient attention is given to the functioning of the judicial system. It is interesting to look into the official and, possibly, unofficial ways and means the populace entered into litigation, as well as the way or ways in which malefactors were held legally accountable for their misdeeds. To this end, a description of the court system(s) of the legal system in question is an important feature of the legal system description. Connection assignment element didactical elements This element of the assignments is on the cutting edge of both the external legal history and the internal, substantive legal history. The element is general, in the sense that it does not concern specific (groups of) legal rules, but gives a general overview of the entire legal system, as the context within which legal rules can function. It is also substantive, as it looks into the actual way that legal rules were effective in practice. The way a system judiciary system works is s often the most important aspect of that system description. s An important resource to help you do well in this second assignment element is the first tutorial of every week, which is devoted to learning how to analyze and describe legal systems. The tutorial is set up so that it exercises doing research on several aspects of a good legal systems description. The maximum word count with each task is deliberate: this will force students to decide what the most important features to mention are and to learn how to be frugal but effective in their wording. The prescribed literature for this course is of a very general nature and passes through the three main periods with seven-league strides. To be able to give an exact picture of a legal system in force within a specific and short timeframe, you yourself will have to find extra sources in the library, in the study landscape and on the internet that can give you the specific information you need. You need to refer to these self-found sources for this element in the footnotes, at the right time and in the right manner (see the Hornbook on legal writing). Nota bene: The rules on contract law are only a small part of the total body of legal rules in a legal system. It is therefore incorrect to ignore all other law in the description of the general legal system. The rules of contract law have no specific place in this second element of the assignment. The correct place for discussing the substantive content of these rules is in the next and third part.

Element 3: Solving the assignment case This part of the assignment is devoted to learning how to work with substantive legal rules from a specific timeframe, with internal historical law. The element is set up as a small, discursively persuasive essay, consisting of an introduction, a main part with an analysis and application of the legal rule(s) pertinent to the case and a conclusion containing the solution to the case. Introduction: The introduction starts with the reason for the essay: the case. A short summary of the facts in the case has to be presented. Be aware that you are not meant to repeat the whole

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case verbatim. Only those elements needed to understand the legal problem and explain the solution should be given. A good tip: check the introduction against the persuasive main body, after finishing the complete essay of this third assignment element. Then you can check which elements are missing in your summary and which ones, in retrospect, are not needed because they do not return in the analysis, application and solution. After the summary of the case, you clarify the problems and formulate the legal question. Make sure that your formulation of the question concerns the problems at law, is precise and uses the correct legal terminology. The information in the introduction comes from the case itself, not from primary sources or academic level sources. It is therefore unnecessary to have reference footnotes with your introduction, as these would only refer to the case. Main body: Here we find the actual discussion of the case. You start by discerning what the applicable rules are. Be aware that in some periods you first have to decide which judicial process (court procedure) is the most appropriate one for the case. Only after having made this decision can a decision be taken regarding the applicable legal rules. To do this, you will have to see what the probable outcome is within each possible type of judicial process present within the legal system involved. It is therefore possible that, before you can start discussing the applicable legal rules, you will have to analyse a number of possible scenarios. Should this be the case, then a brief report of this decision making process has to be incorporated at the beginning of the main body: first explain which judicial process is preferable and why, and then follow with the applicable legal rules within the chosen judicial process. When the applicable legal rules have been presented, it is discussed what their force of law is and how this force of law came into existence. Is it a statutory legal rule, a customary legal rule, a local ordinance? If a law, statute or ordinance, the time of promulgation is indicated and, when applicable, the initiator of the bill. If a rule of customary law, the (underlying) reasons for its legal force are presented. When the applicable legal rules are known, their content is discussed. Here also the development of the underlying concepts through jurisprudence and case law should be incorporated up until the timeframe of the case. It is possible that a combination can be made with the analysis of the legal rules in question, although a separate presentation of the analysis is often advisable. The analysis is then applied to the facts of the case, in the same manner as you have learned in Skills training. In this aspect, you combine the analytical elements of the legal rules as factual as possible with the case, all the while corroborating your application results with arguments and sources. Nota bene: the persuasive main body in this element of the assignment contains references to your sources in footnotes whenever necessary, in the correct manner according to the Hornbook on legal writing. Conclusion: This part of the essay is more than just presenting the solution to the case. The solution must be underpinned by a concise repetition of the key arguments for the decision. This is not a complete repeat performance. In the conclusion students show that they are able to distinguish between relevant facts, theories and arguments and those less or irrelevant

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You must not introduce new information in the conclusion. Only facts, arguments, theories and convictions already elaborated in the main body are to be related. There will therefore be no notes of reference connected to a conclusion. Connection assignment element didactical elements This element explicitly builds on knowledge and skills acquired in the first half of the academic year. Within this course, you need to acquire the necessary elementary knowledge on the workings of substantive historical rules of contract law. The most important resources for a worthwhile execution of this element can be found in the second tutorial of each week, based on a study of the book by Feenstra/van Rhee. Last but not least: Each assignment must be accompanied by an index of sources used. See on this also 2.4.

2.6 Fraud All submitted assignments will be subjected to a fingerprint test This test will include . assignments submitted by Legal History students from earlier years. If this shows that there is too much similarity between the assignments of two or more students, these students will be referred to the Board of Examiners. Nota bene: second-year students are NOT allowed to use their assignments of last year. The incorporation of one own texts from earlier assignments is as much seen as fraud as that s of texts written by others, and will be dealt with as such! We would like to make it very clear that BOTH the person who has used the work of another student AND the student who has made his/her own material available to someone else will be regarded as having committed fraud. In addition to this, the usual monitoring for plagiarism with respect to source material will be carried out. The copying of sources, both referenced and unreferenced, as well as paraphrasing sources without referencing are all forms of plagiarism, therefore fraud, therefore not allowed. Quoting from sources, i.e. the literal copying of sources between brackets and with reference is technically not forbidden, but is advised against in the strongest terms possible. Those who quote do not show their ability to think and reason, only an advanced ability of using scissors and a pot of glue. All quotations in assignments will be ignored for grading purposes, as if they are not present. The remainder of the assignment will then be checked for coherence of reasoning and completeness of argument and information. Within the scope of such a short writing product as these assignments, the presence of quotations will therefore soon lead to an insufficient grade.

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3. TUTORIALS

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WEEK 1: ROMAN LAW

Tutorial 1: Legal systems of Roman law in Antiquity
Literature: Stein, Roman law in European History, pp. 1-40 Feenstra/Ahsmann, Contract, pp. 5-8, 13-18, 25-26, 31-32 Materials Comparative Contract Law: Legal History Texts: Feenstra/Ahsmann, Contract, Texts (p. 39 ff), nos. 1-9, 11. The indicated texts have to be studied for both of this week tutorials! s Report on your findings for all tasks below in a short essay, not exceeding the maximum number of words indicated for each task. Reference correctly all sources used in a task in accordance with the Hornbook on legal writing guidelines. Task 1, Territory/demography (150 words max) Researching a legal rule historical roots requires studying the general social-historical context s within which the rule was given form or function. In the assignments, you are therefore required to put the case in such social-historical context. This requires precision: being a hundred years offusually leads to incorrect descriptions. Let us suppose the case under discussion is placed in Paris in 1715, a very wrong picture is painted if you were to assert that this is the era of the French Revolution. That revolution did not take place until 1789, while the year of the researched case saw the death of Louis XIV, le Roi Soleil, the most absolute French monarch of all times. Assignment: Suppose, you have to write an essay on Marcus Tullius Cicero as a lawyer and statesman. To that end, it is important for you to know exactly how things stood in Rome in the years 64-62 BC. Find out what form of government Rome had in those days and who stood at the helm of the Roman state; what territory was encompassed by the Roman state in those days; look into the structure of Roman society, the economical state of affairs, the demographic structure of the populace and possible social unrest. Task 2, Jurisprudence (100 words max) Your research not only requires a general background, but also a good insight into the state of legal science in the period under scrutiny. In the assignment cases, the period to be researched is reduced to one specific year. Just as with Task 1, you cannot allow yourself to stray too far from that year, but have to be precise. Developments important for the situation in the appointed year can and should be incorporated, even though their origin might lie some years or even decades before the case. Developments of later years, even if only by a few years, cannot be taken into account. At most, roots of these future developments, present in the researched timeframe, can be indicated. The reason later developments cannot be incorporated is that they will only distort your view on the researched timeframe, instead of clarifying it.

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Assignment: Discuss developments in Roman jurisprudence in 35-37 AD. Look into the developments concerning the schools of law and the ius publice respondendi. Do NOT look into developments later than 37 AD. Task 3, Legal developments (100 words max) Original texts by Roman jurists can help understand the developing legal interpretation of the researched legal concept. To understand these texts, you need to know more about the authors of these texts and the jurists mentioned in the texts. Assignment: Read text 4 from Contract p. 40, D. 50, 17, 23. Find out what is known about the author of this fragment and the two jurists he mentions. When did they live, is something known about their family background and social status? What does the presence of the other jurists tell you about the temporal development of the concept of good faith? Task 4, Jurisprudence (100 words max) The reverse from the previous task is to draw conclusions as to the state of jurisprudence with regard to a legal concept by finding out which jurists were active at the time of the case. Once you know, studying their writings will help form an insight into the research topic. Both these angles to studying history looking into the authors of legal texts and the jurists they mention, as well as seeing which jurists were active at any given time are especially important for both the period of Roman law and of Ius Commune. Assignment: What jurists were active around 137 AD? In this period, an important development took place regarding the praetor. Find out which jurist was responsible and research his background. Task 5, Jurisdiction (100 words max) To ascertain the manner in which a case was solved at a certain point in time, it is inescapable that we will have to know about the judicial process of that time. This is especially true when the historical procedure is nothing like our modern procedure, since not knowing will hinder our understanding of the way the legal rule functioned. To us, it is more than slightly strange that legal subjects should have to choose between various types of trial. Yet, just that is the case at several instances in the Roman law period. An even more complicated situation of different judicial processes and court proceedings existing next to each other or partly entwined will present itself next week, when we are looking into the period of Ius Commune. Assignment: You are a legal adviser in a case situated in 167 AD. The legal problem that lies at the core of the case has some aspects that have never before occurred. You, as the legal adviser, have to decide which judicial process is most advantageous to your client. To that end, you have to compare the praetor and the proces per formulam to the functionaries of the imperial chancery and the cognitio extraordinaria.

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Tutorial 2: Roman contract law

The focus of this tutorial is the history of the concept of contract in Roman law in Antiquity. Roman law has a long history of development. Although according to legend, Rome was founded in 753 B.C., our knowledge of Roman law dates back roughly to the promulgation of the Law of the Twelve Tables in 450 B.C. We will study the development of Roman law from 450 B.C. until its codificationby the emperor Justinian (who effectively ruled over the Eastern Empire, also referred to as the Byzantine Empire) in the 6th century A.D. Of course, such a long period cannot be studied comprehensively in a single week. Therefore, the emphasis will be on a selection of topics concerning the classical Roman law from (roughly) the first three centuries A.D. and the 6th century Corpus iuris civilis of the emperor Justinian. We will also devote some attention to the fate of Roman law in the Western Empire, which, in Emperor Justinian's time, was still a part of the Roman Empire, though often in name only. This week, you will discover that law is a dynamic phenomenon. It reacts to developments in society and is part of what defines a particular society. Studying history of law is necessary to understand the process of how and why a particular legal system developed its specific characteristics. To illustrate this, in this tutorial we will attempt to place the development of Roman contract law in its historical and social context. In doing so, we hope to deepen your insight in the importance of external legal history(the central focus in Stein book, in the lectures and in the online self-study modules) for the s development of specific legal concepts and institutions. To help you acquire the relevant knowledge, we recommend that first and foremost, you place every primary text used in this course in its appropriate historical/legal-historical framework (Task 1 below). After having completed Task 1, you are requested to provide a legal analysis of the cases listed below (Task 2). You are requested to argue from the position of a jurist of the period in which the case is situated. Task 1 State for each text from Feenstra/Ahsmann mentioned above: - Its source and what type of source it is. - The moment the text was written. Please note that some texts were adapted or compiled into a collection of texts long after they were first written. In such cases, you must state both the period from which the text originates and the period of its re-use. Also, indicate whether any changes were made to the original text. - The author identity and some information on the author. Examples: When did the author s live? What did he write? Please bring your written answers to the tutorial.

Task 2 Study the texts from Feenstra/Ahsmann and the materials of Comparative Contract Law: Legal History. Also, study the cases given below. Determine the contract applicable to each case; describe the category into which that contract falls, and how and at which point in time it became an enforceable agreement. Please mention the sources (texts) on which you base your answer. If applicable, discuss changes in the law. Please bring your written answers to the tutorial. 20

Cases (1) (Rome, 2nd century A.D.) Marcus, an impoverished Roman noble, has invited some senators to his home for dinner. He borrows some silver platters from his friend Antonius to serve the meal on. Antonius gives him the platters, on the condition that Marcus will return them one week later. (2) (Byzantium, 550 A.D.) Marcus purchases some nice chickens at the local market for dinner. He is very happy since he only had to pay 25% of their normal price. (3) (Rome, 2nd century A.D.) Marcus is in need of money. He wants to buy a new toga. He borrows the money from Brutus. Brutus wants Marcus to pay interest. (4) (2nd century A.D.) Brutus rents a villa in Campania for the summer holidays. However, a month before his holidays start, his wife dies and therefore he does not want the villa anymore. (5) (Rome, 2nd century A.D.) Antonius is planning a trip abroad: he is going to study philosophy in Athens and Alexandria. He asks Brutus to take care of his silver platters because he is afraid thieves will rob his home while he is away. (6) (Byzantium, 550 A.D.) Antonius hires a crew to sail his ship to Athens. (7) (Rome, 2nd century A.D.) Antonius has returned from his travels, and wants to upgrade the family home. For this, he needs a loan from Brutus. Brutus wants security for the repayment of the loan. Antonius gives him his silver platters. (8) (Rome, 2nd century A.D.) Brutus asks Marcus to act as his advocate in a trial (9) (Byzantium, 550 A.D.) Marcus wants to buy a horse from Antonius, but he has no cash. Therefore, he offers Antonius a valuable statue instead of money. Antonius accepts.

Task 3 Discuss: 1. Should, according to classical Roman law, all agreements be viewed as contracts? 2. What was the effect of the disappearance of the stipulatio during the classical period? 3. What is the Clausula rebus sic stantibus? Is it a concept of Roman law? 4. Discuss the concept of laesio enormis and its meaning in Roman law. Please bring your answers to the tutorial.

Submit Assignment 1 before Tuesday 12 January, 08:00!

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WEEK 2: RECEPTION AND IUS COMMUNE

Tutorial 3: Legal systems in the period of Reception and Ius Commune Literature: Stein, Roman Law in European History, pp. 38-103 Feenstra/Ahsmann, Contract, pp. 9-11, 19-20, 21-24, 25-29, 31-35 Additional materials week 2 on ELEUM and materials Comparative Contract Law: Legal History Texts: Feenstra/Ahsmann, Contract, Texts (p. 39 ff), nos. 10, 18, 22, 24-28, 31-33, 36, 51-54 The indicated texts have to be studied for both of this week tutorials! s Report on your findings for all tasks below in a short essay, not exceeding the maximum number of words, indicated with each task. Reference correctly all sources used in a task in accordance with the Hornbook on legal writing guidelines.

Task 1, Territory / governance (100 words max) Suppose you have to discuss a case that happened in Thorn, an independently reigned area in Northern Limburg beholden to the Holy Roman Empire, around the year 1630. The case passes through all available legal instances and ends at the Reichskammergericht. Discuss these instances. Also, describe and name the area where the Reichskammergericht held sway as a court of highest instance. Discuss the government structure of this area. Indicate the sources of law of the Reichskammergericht and the influence of this court on the reception of Roman law. Task 2, Jurisprudence (100 words max) Discuss the Glossa Ordinaria, also called the Accursian Gloss. What time did it originate, what where its form and content and what was its influence on the development of legal science? Task 3, Sources of law (150 words max) Describe the legal sources of France around 1690. Define these sources as to area where they had legal validity and the source of that legal validity. Discuss the (seeming?) antithesis between the pays de droit crit and the pays de droit coutumier. Task 4, Jurisprudence (100 words max) Suppose that your research of a historical case from 1538 shows that the lawyers in the case consulted with a number of very famous jurists of that time. Some of these jurists were adherents of the mos italicus, some of them were in favour of the mos gallicus. Discuss two jurists they could have consulted, one from each legal method. Indicate, for each of them, their importance for the development of jurisprudence. In all this, do not forget to clarify what both legal methods entailed!

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Task 5, Jurisprudence (150 words max) In the 17th century, the ius naturale was rediscovered Discuss how the ius naturale developed . in the years 1550-1750, taking into account international law, human rights and enlightened absolutism. Task 6, Legal education (100 words max) What is the meaning of the academic title magister utriusque iuris? Discuss in what areas and fields of law such a magister would have trained. Discuss also the educational methods at the university of Bologna around 1350 and at the university of Leyden around 1780. Task 7, Jurisdiction (100 words max) Maastricht, 1625. You are a lawyer, and you are approached by a prospective client on representing in a case of breach of contract. What fora are available to you and which respective bodies of legal rules are applicable in these fora?

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Tutorial 4: Contract law in the period of Reception and Ius Commune

This fourth tutorial focuses on the history of contract law from the period of the rediscovery of the Corpus Iuris up to the codification period. We will study the developments in this area of law from 1000 A.D. to approximately 1750 A.D. A main theme in this period is the influence of canon law, which followed principles distinctly different from those of the (secular) civil law. Examples of canon law influence are the preponderant role of the maxim pacta sunt servanda and the introduction of rights as a starting point of legal analysis instead of the duties enforceable through remedies, which were the starting point of Roman legal thought. In this period, the sources of the law and their applicability were complex. Some of the most important sources were Roman law, canon law and customary law. It was not always clear which rule from which particular source governed a particular case. For this reason, the legitimacy of the rules to be applied was of great importance. Nevertheless, often the choice of the legal source was dictated by the desired result. The applicable source of law also determined, to a certain extent, the competent court where the action could be brought.

Task 1 State for each text from Feenstra/Ahsmann mentioned above: - Its source and what type of source it is. - The moment the text was written. Please note that some texts were adapted or compiled into a collection of texts long after they were first written. In such cases, you must state both the period from which the text originates and the period of its re-use. Also, indicate whether any changes were made to the original text. - The author identity and some information on this author. Examples: When did the author s live? What did he write? Please bring your written answers to the tutorial.

Task 2 Study the texts of Feenstra/Ahsmann, the additional materials week 2 found on ELEUM mentioned above, and the materials from Comparative Contract Law: Legal History. Analyse the cases below. Determine the rules applicable to these cases and state their source, indicating whether the rule belongs to Roman law, canon law or customary law. Also justify why, in your opinion, the rules from the particular source chosen may be applied. Subsequently, solve the cases on the basis of the applicable rules. Please bring your answers to the tutorial.

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Cases (1) Falco is a young man who lives in Padua. He was born in 1125, and is now 23 years old. Five years ago, he started working for Ricardo, who is a master tapestry weaver. They agreed that Ricardo would teach Falco how to design and weave tapestries. If Falco worked hard in Ricardo's atelier for five years and did well, Ricardo would help Falco to be admitted to the guild of tapestry weavers. In addition, he would help him to found his own atelier and eventually to attain the master status. Falco worked hard and is now the designer and supervisor of half the tapestries that come out of Ricardo's atelier. Ricardo does not want to lose such a good employee only to create a formidable competitor. Consequently, he changes his mind: he forgets about his promise made to Falco: he will not make him a guild member, let alone help him found his own atelier. Falco decides to take Ricardo to court, but a lawyer advises him that his agreement with Ricardo, though valid as such, is not actionable according to Roman law since that law only recognizes a set series of contracts. Therefore, Falco cannot , force Ricardo to comply with his earlier promises by going to a secular court that applies Roman law. In confusion, he wanders into his parish church, where the local priest is reading his breviary. The kind old man asks Falco what is the matter, and Falco tells him about his problems. The priest advises him not to go to the secular court, but to the ecclesiastical court. There Falco might win his case .. (2) Antonio has just got married for a second time to a rich widow with the name of Grazia. He and Grazia agree that Antonio daughter, Margarita, now 5 years old, should marry Grazia son s s Paolo, now 27 years old. Of course, they need to wait until Margarita is old enough to be married. To make sure that in due time a marriage will indeed take place, Antonio and Grazia draft a contract containing a clause that, should a party to the contract not fulfil his/her obligations a large sum of money has to be paid to the other party. When Antonio dies, Margarita is 18 years old. A week after Antonios death, Margarita cancels the betrothal to Paolo, a profligate wastrel. Consequently, Paolo and his mother take Margarita to court in order to collect the sum of money indicated in the contract mentioned above. After all: an agreement is an agreement.

Task 3 Discuss 1. What different types of freedom of contractmay be distinguished? When and how was the concept of freedom of contractdeveloped? 2. The development of the rule pacta sunt servanda is linked to the socio-economic situation in medieval and early-modern society. Explain. 3. Give an overview of Grotius contributions to the development of modern contract law.

Submit Assignment 2 before Tuesday 19 January, 08:00!

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WEEK 3: CODIFICATION
Tutorial 5: Legal systems and Codification
Literature: Stein, Roman Law in European History, pp. 104-132 R. Zimmermann, The Law of Obligations, Oxford 1996, pp. 583-598, 600-620 (Sections 1-6, 8-10 without the footnotes) For a translation of Latin words and phrases: see glossary below!!!! H. Beale a.o. (eds.), Cases, Materials and Texts on Contract Law, Oxford 2002, pp. 343-346. Texts: The translations of the relevant articles of various modern codifications cited in Beale a.o. (see above) The indicated texts have to be studied for both of this week tutorials! s

Report on your findings for all tasks below in a short essay, not exceeding the maximum number of words, indicated with each task. Reference correctly all sources used in a task in accordance with the Hornbook on legal writing guidelines

Task 1, Territory / demography (100 words max) At times, it can be extremely important to give an accurate description of the historical situation in a very restricted timeframe. In these cases, deviations of a few years either way could lead to serious distortion of historical reality. Assignment: Describe the territory encompassed by the Kingdom of the Netherlands in 1829. In what way was the conception of this kingdom politically motivated? Discuss the social and economic circumstances, as well as the order of Dutch society in those days.

Task 2, Jurisprudence (100 words max) Discuss the French exegetical school. To what period does this school belong and what was its influence on jurisprudence and judicial practice? Do a background search on two of the school s protagonists. Why (and when) did the school influence decline? s

Task 3, Legal education (100 words max) At the beginning of the 19th century the curriculum of legal studies in France, Belgium and the Netherlands underwent some serious changes. What were these changes, and what caused them? What did this mean for the position of Roman law in legal education?

Task 4, Jurisdiction (100 words max) You are a lawyer in the Maastricht of 1812. What does the judicial organization that you have to work with look like?

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Task 5, Jurisprudence (150 words max) Discuss the academic polemic in Germany between F. K. von Savigny and A.F.J. Thibaut in the first half of the 19th century. Why did this debate take place in Germany? Who won in the end?

Task 6, Sources of law / jurisdiction (150 words max) Describe the sources of law in the English legal system around 1850. What procedural legal remedies did English lawyers have at their disposal?

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Tutorial 6: Contract law and Codification

The 6th tutorial will focus on the history of contract law from the end of the 18th century, especially on the concept of error/mistake. We will look at the developments in this area of law from the start of the codification period and compare these developments with Roman law. As you have learned, the codification period begins at around 1750 with the introduction of the first legal codes in Bavaria, and ends around 1900 with the introduction of the German civil code. Idealistic notions about the results of the new codifications abounded in continental Europe: from then on, the law would be clear and easily understood by all laypersons without the twistingintervention of lawyers. It did not turn out that way. law Task 1 State for each text mentioned under Textsabove: - Its source and what type of source it is. - The moment the text was written. - The author identity and some information on this author. s Please bring your written answers to the tutorial. Task 2 Study the above texts. Analyse the cases below. Subsequently, solve the cases on the basis of classical Roman law, the ius commune, and the legal rules of one modern European legal systems (you may chose). Indicate whether, why and to what extent the solutions differ. Please bring your written answers to the tutorial. Cases: Paul hands his book over to John. Paul thinks he is lending the book to John, who thinks the book is a gift from Paul. John hands his bracelet over to Paul. Paul thinks he is borrowing the bracelet from John, who thinks he is giving Paul a present. Matthew sees a beautiful statuette in Mark garden. He offers Mark a good price for what he s calls that little statue of Diana Matthew is a bit surprised, as he thinks the Diana statue is a . crummy little thing, but he agrees. When he brings the statuette to Matthew home, Matthew is s not happy: this is not what he bought! When they go together into Mark garden, and Matthew s points out the statuette, Mark disagrees with Matthew: this is not a statue of Diana, but of Minerva! He does not want to sell it, as it is an heirloom. Matthew insists he bought the statuette, and wants to take it home. Claudia sees a beautiful crystal decanter in an antiques shop. The price tag says 10.000 euro , and happily, she takes it to the counter: she can afford ten euro. She is devastated when the shop assistant tells her that this unique piece costs ten thousand euro. The shop assistant insists that she pays the full price, as she has just bought the decanter.

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Tania orders an expensive crystal decanter from a mail order company. When the decanter arrives, it turns out to be simple crystal-cut glass. Henry got a watch from his father as a birthday present. He wants a new iPod nano, so he sells the watch for 500 euro to his friend Peter. His father is livid: the watch was a real Zenith, worth 10,000 euro. Henry wants his watch back, but Peter tells him a deal is a deal. In post-WWII Europe Smith sells a load of iron wire to manufacturer Johnson for 79 cents per kilo. Afterwards, Johnson sends Smith a note asking for a deduction of 29 cents per kilo, as he found out a legal measure had been promulgated which restricts the price of iron wire to 50 cents per kilo to prevent black marketing. Task 3 1. Make a list of the different types of error that may be distinguished in the formation of a contract and give a definition of each type of error. Cite relevant texts where possible. 2. To what extent did the ideas of Savigny on the concept of error influence the German BGB? 3. Explain in what way and to what extent modern codifications have been influenced by the concept of error as developed on the basis of Roman law. 4. Discuss: English law has not been influenced by Roman law and consequently continental ideas on error have not influenced English law.

Submit Assignment 3 before Tuesday 26 January, 08:00!

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GLOSSARY
Zimmermann uses a considerable number of Latin words and phrases and does not provide translations. This is not problematic, even for students who do not read Latin, since very often the translations become clear from the context. However, occasionally this is not the case. Therefore, some translations are provided below. These are not meant to be literal translations, but paraphrase the meaning of the word or phrase in its legal and historical context. Please note that translations of the texts from the Corpus Iuris are provided in a separate document. actio empti = legal action to be brought by the purchaser ad idem as to their intentions = in accordance as to their intentions aedilitian remedies = remedies provided for by the aediles (type of magistrate) aliud (an -) = something else bona fide (ex -) = based on good faith causa obligandi = the reason for being bound/obliged caveat emptor = let the buyer be careful civitate (in ea -) = in that town culpa in contrahendo = fault made when concluding a contract (but before it is actually concluded) resulting in contractual liability declarationes voluntatis = declarations of will dicta in venditione = what is said by the seller during the sale dolus = intententionality emptio venditio = contract of sale errantis voluntas nulla est = the intention of those who err is void error circa accessoria = a mistake as regards accessory matters error in corpore = mistake as to the identity of the thing error in negotio = mistake as to the nature of the transaction error in persona = mistake as to the identity of the other contracting partner error in pretio = mistake as regards the price error in substantia = mistake as regards the substance of the thing error iuris regulariter non praesumitur, sed scientia = not a mistake as regards the law is presupposed, but the actual knowledge of the law error noceat erranti = error hurts the one who errs estoppel (English legal term) = impossibility to state a certain defence, e.g. the defence that the contract is void as a result of error

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falsa demonstratio non nocet = a wrong identification does not hurt the validity of the contract fundus = estate (piece of land) homo prudentissimus = a very careful person iam mulier = not a virgin anymore ignorantia facti alieni = ignorance as regards a fact belonging to another person personal s sphere ignorantia facti proprii = ignorance as regards a fact belonging to one personal sphere s illae qualitates rei quas paciscens praecipue ob oculos habuit = those aspects of the case that one holds before one eyes while making the contract s in iis quae antiqua sunt, aut valde intricata, facti proprii errorem tolerabilem esse ac excusare = that in those matters that are old or very complex, a mistake belonging to the fact itself, is acceptable and to be excused in iuribus difficilioribus = in more/rather intricate legal matters in unam sententiam = in agreement integrum restitutio (in - ) = restitution or restoration to the previous condition inter praesentes = between those actually present invincibilis = what cannot be overcome iustus error = reasonable mistake locatio conductio = contract of letting/hiring loco (in -) = at the very place mancipatio = method of acquiring ownership minores xxv annis = persons of less than 25 years of age minus in maiore inest = the smaller amount is included in the larger amount negligentia crassa = severe negligence probabilis = likely promissa = the things that are promised propter memoriae imbecilitatem = because of a defective memory (e.g. Alzheimer) putare emere = presuming to buy putare vendere = presuming to sell quanti minoris = action that can be brought for what the thing is worth less redhibitio = avoidance of a sale on account of some vice or defect in the thing sold si in pretio dissentiant, emptio imperfecta est = when there is dissent as regards the price, the sale is imperfect (not concluded) signum volendi = declaration 31

sponsio = solemn promise stipulatio = contract consisting of a formal promise made in answer to a formal question supina et affectata = (things that are ) careless and farfetched utile per inutile non vitiatur = the useful is not set aside by the non-useful verba = words (declaration, the words expressed to declare one will) s volitio = intention voluntas = will (what one intends)

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