Faculty of Law2009/2010

Legal HistoryCoursebook

European Law SchoolEnglish track

Year 1Courseperiod 3

MET1005

1

2009-2010Course 1.3Legal History

Faculty of Law

Maastricht University

2

CONTENTS

Chapter 1: Introduction

1.1 Objective p. 1

1.2 Operating procedure p. 1

1.3 Studying effort p. 2

1.4 Teaching format p. 2

1.5 Literature p. 3

1.6 Examination p. 3

1.7 Course alterations p. 4

1.8 Planning group p. 5

Chapter 2: Individual assignments

2.1 General p. 9

2.2 Re-sit p. 9

2.3 Submitting assignments p. 9

2.3 Contents p. 8

2.4 Formal requirements p. 10

2.5 Contents p. 10

2.6 Fraud p. 15

Chapter 3: Tutorials

Week 1: Roman Law

Tutorial 1: Legal systems of Roman law in Antiquity p. 19

Tutorial 2: Roman contract law p. 21

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 p. 25

Week 3: Codification

Tutorial 5: Legal systems and Codification p. 27

Tutorial 6: Contract law and Codification p. 29

Glossary p. 3

3

1. INTRODUCTION

4

1.1 Objective

This course provides an introduction to both the external legal history of Europe and the internalstudy of substantive historical legal concepts. To this end, you will analyse and solve a numberof simple cases in their historical context, applying the knowledge and insights of legal historyand the methodology of legal-historical research gained during the course.

Legal history as an academic discipline has multiple dimensions. The most pure form is thefundamental research of the legal historian into the development and application of law and legalrules in their historical context. This is essential for scholars of modern law, since good legalhistorical research is a basic element for comprehending modern law.

Legal history contributes in many more ways to modern day lawyers’ understanding of law.The legal historical dimension is an important component in most, if not all, contemporary legalresearch. Here fundamental legal historical research and fundamental comparative researchmerge in an ever-fruitful manner.

In our faculty, and most especially in the European Law School, the comparative methodstands at the core of our research and the educational curriculum. It is therefore to be expectedthat the legal writings produced by students in this faculty will be of a comparative nature. Thisnecessitates knowledge of legal history and legal historical research methods. The knowledgegained in this course is therefore not only immediately applicable to, for instance, yourbachelor’s essay or master’s thesis: those aiming to perform at higher level will find legal historyan 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 broadhistorical context, including both the development of legal science and the development of the“law in action”, that is, the practice of law.

The history of specific legal concepts and institutions belongs to the so-called internal orsubstantive legal history. All lawyers must be able to interpret historical legal rules within theirhistorical context. If not, the dangers are that anachronistic interpretations will lead to incorrectconclusions, resulting in, at the least, a less valuable outcome of research. An example: whenlooking at Roman contract law from the modern viewpoint on the concept of “consensus”, it iseasy 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. Thiswill not (yet) concern fundamental research, but substantive historical research in an appliedform. This research will be based on primary sources and modern subsidiary legal historicalliterature. It is impossible to discuss in depth all substantive law in a historical perspective, so achoice had to be made. The planning group has chosen to focus on the historical dimension ofcontracts, as this is an extension of the course on comparative contract law taught in the secondperiod.

You will therefore be presented with three cases, which are to be studied based on historicalsources and modern legal historical literature. The objective here is for the students to learninterpreting the applicable legal rules within acceptable legal historical parameters, as well asplacing 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: theRoman 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

5

concluded with an assignment, which involves solving a case situated within that period byapplying the historical legal rules of that particular time. Before the case can be solved anaccurate description will have to be given of the governing legal system. To show yourunderstanding of the legal system’s place within the wider scope of law’s development, the firststep 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: adescription of external legal history, an exact description of the legal system involved and thesolution of the case. How to go about this will be discussed in more depth later in this coursemanual.

1.3 Studying effort

The Legal History course provides 4 ECTS. Each ECTS stands for 28 hours of study, givingLegal History 112 hours in total. Divided over the three weeks of the course, this means anaverage 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 willhave to plan your efforts accordingly. This also means it is not a good idea to combine othereducational activities with the course Legal History.

Second year students, nota bene: as with the other first-year courses, you are not allowed toparticipate in either classes or exams of any second-year courses or higher, as long as you havenot passed Legal History. This specifically concerns the courses Burgerlijk Procesrecht, RodeDraad and Private International Law.

1.4 Teaching format

LecturesEvery Tuesday for three weeks, two consecutive lectures will be given. Time and place of theselectures will be made known both in your personal Timetable and on EleUM. These lecturesconcern 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 andbring them to the lecture, as a basis for your note-taking. It is an even better idea to prepare theassigned 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 modulesFour self-study modules have been made available on ELEUM. Along with the lectures, thesemodules are a supplemental study aid for the book by P. Stein. The modules contain questions aswell 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 materialof modules 2 and 3 will be covered primarily in week 2. Week 3 will be devoted to the materialof module 4.

In the opinion of the course coordination team, the self-study modules are essential to thesuccessful completion of this course

6

TutorialsIn addition to the lectures, 6 tutorials will take place, twice-weekly during the three weeks of thecourse. These tutorials will take place on Wednesdays and Fridays. Your Timetable will tell youwhich group you are assigned to.

In the Wednesday tutorial the focus will be on how to go about describing a historical legalsystem within the period under scrutiny that week. This includes topics from legal practice, suchas judicial procedure and the study of primary source texts. In the Friday tutorial our attentionwill 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 thatshould be answered prior to the tutorials. You will notice that the questions follow roughly thesame pattern each week. This is done deliberately, to allow you to become acquainted with boththe 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 tutorialunprepared. Your tutor therefore has the right to refuse to allow you to participate if you areinsufficiently prepared.

Individual assignmentsAs has been stated above, an individual assignment based on a particular case must be completedduring each week of the course. In order to complete these assignments satisfactorily, theknowledge that has been gained during the lectures must be combined with the knowledgegained 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. ‘Contract’ and ‘freedom of contract’ in historicalperspective (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 assignmentsconsists of three elements: a general external legal historical part, which delineates thedevelopments of law in that period. A specific external legal historical part, which describes thelegal system governing the time of the assignment case in detail, and a substantive part, in whichthe 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, suchthat each part is graded once out of three. This means that, if the general external legal historicalpart 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, willconstitute the final grade for Legal History. Which part of which assignment will be chosen forgrading 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 weekof Period 4, to be handed in before 17:00 on the Friday of the resit week at the end of Period 4.

7

1.7 Course alterations

We are happy that the number of students taking the time to fill in the IWIO course evaluationfor Legal History keeps growing. This gives the planning group an excellent opportunity to keepstrengthening and improving this course. The changes we made to the course, based on lastyear’s evaluations, are:

Tutorials: A great number of students complained that one tutorial a week was not enough todeal with the extensive periods covered. The planning group agrees, therefore we have added asecond tutorial each week. The two tutorials will take place on Wednesdays and Fridays everyweek. The first tutorial will be focused on learning how to research and write the second part ofthe assignments, the description of the legal system. The second tutorial will concentrate on thesubstantive knowledge of contract law rules.

Lectures: IWIO showed that students were unhappy with the placement of the second weeklylecture at the end of the week, after the tutorial. Therefore, we have chosen to place both lecturesat the beginning of the week. Logistics, however, only allow for this when both lectures aregiven 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 littletime to prepare well for Legal History’s written exam. This was compounded by the amount oftime needed to do the assignments well.

The planning group values the assignments as one of the most important elements of thiscourse. The knowledge of historical sources and how to find them, as well as the ability toexecute proper substantive legal historical research, gained by students through producing theassignments has a clear surplus value, as these accomplishments effectively can and must beapplied in later elements of the ELS curriculum (see § 1.1).

We have thus decided to drop the written examination and examine the course through theassignments. The general external historical element formerly comprised in the written exam hasbeen incorporated into the assignments.

Assignments: Many respondents were less than content with the fact that in previous years onlyone out of three assignments was graded. This is understandable, but within the norm hours setaside for grading in the faculty, the staff does not have the time to grade all three assignmentscompletely. As we can understand the frustrations of the students in this regard, the planninggroup has tried to find a solution that does justice to the students’ wish within the faculty’sparameters.

From this year onward the assignments will consist of three elements: a general externalhistorical part, a description of the legal system that governs the assignment case and an analysisand 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 aregraded once. This way we will achieve the best possible grading coverage, giving attention to thetotal effort of the students.

Studying effort: IWIO showed that students were not familiar with the studying effortguidelines applicable to this and other courses. A feeling that Legal History took too much of thestudents’ time was communicated, although at 25.5 hours a week the mean average of studyingefforts 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.

8

There are also a number of issues where effecting change lies not within the power of theplanning group, or where ponderous reasons preclude changes.

Course period: A sizable group of students indicated a preference for placement of LegalHistory in an 8-week course period. Obviously, the planning group does not have authority toeffect 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 yetunattainable.

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 byside. This causes such a heavy peak load for the staff that, for any chance to be able to succeed inthis, it is an absolute necessity to keep the number of teaching groups to a minimum. A minimumnumber of groups means, alas, maximum group size.

The coordination team have prepared the course manual, teaching material and organization ofthis course with the utmost care. We are therefore very much interested in your reaction to thechanges effected in the course. The team will continue to work on strengthening and improvingthis course. Your comments can help us with this. So, make good use of your influence and fillout the IWIO evaluation at the end of the course! Nevertheless, it is always possible thatsomething in your course manual remains obscure to you. In that case, ask your tutor or come tothe 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, LLMOpen office hours during the course:every day Tuesday to Friday 17:00 – 17:30, Room 0.317

Planning group:Prof. Dr. C.H. van RheeProf. Dr. A.M.J.A. Berkvens

9

2. INDIVIDUAL ASSIGNMENTS

10

2.1 General

During the course, students must complete three individual assignments, one individualassignment each week. These assignments will be posted on EleUM, under Legal History. Forthe assignment, students are to combine the knowledge gained during the lectures with thatgained during the tutorials.

The assignments all consist of three elements; each of the three assignments will be graded inpart, one element will be chosen for each assignment and for each assignment, a differentelement of the paper will be graded. This way, all assignments and all elements will be taken intoconsideration. The chosen element of a paper will only be graded when marginal review of theother elements shows sufficient diligence on the part of the student. Consequently, studentsshould produce three assignments of the highest quality throughout.

Which element of which paper is going to be graded will be decided after the course hasfinished. 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 assignmentswill be made available through EleUM under Legal History at the beginning of the last tutorialweek of period 4. The assignments will have to be submitted through EleUM before Friday17:00 in the week of the re-sits.

The choice of which element for which assignment is going to be graded for the re-sit maydiffer from that of the first exam. For this and other reasons, it is not possible to retain results offirst-exam assignments.

2.3 Submitting assignments

Assignments must be submitted electronically through EleUM under Legal History. See thedocument Submitting assignments on ELEUM. You have already encountered requirements fornaming 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 thecourse of your Skills training. The naming rules for the Legal History assignments differvery slightly from the Skills training rules. Please consider them carefully; mistakes made inconcern 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 thedigits of your ID number are required, so do not add an i or I at the beginning; z is the singledigit standing for the number of the assignment, so either a 1, 2 or 3. Do not add a 0! The IDnumber and assignment number are connected by a hyphen, without any space before or after thehyphen. MS Word will add the extension .doc (or .docx) automatically. An example: the studentwith 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 beautomatic because EleUM gives you a confirmation of your actions. It may be advisable to printout 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 EleUMmay not work on the morning of the last day of the submission period, or that it has been down

11

for so long in the days leading up to this that you could not reasonably have been expected tosubmit your work on time.

In such cases an announcement will be made during the lecture as to whether the deadline willbe extended and, if this is the case, what the new deadline is. The extension will also be shownon 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 theyoccur at the end of the submission period. It is therefore wise to submit your assignments earlierrather 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 intoMS Word from other word processors is accountable to the submitting student and will leadto 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’s three elements should consist of 650-700 words. This brings the

total amount of the assignment to 1950-2100 words, not counting the index of sources or theapparatus of reference notes. Note: NO internal redistribution of the minimum/maximumword 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

GeneralThe individual assignments revolve around a case, which is set in the period addressed in thatweek. Each case consists of three interwoven elements; each of the three elements has aminimum/maximum word count of 650-700, no more, no less.

Element 1: General external legal historyRefinement periodization: To divide legal history into three main periods, as we have done inthis course, is of course only a very rough delineation. Especially week 1 (a period ofapproximately 1000 years) and week 2 (a period of over 1400 years) cover eras that inevitably

12

show many changes and developments over time. In this segment of the assignment, you musttherefore pinpoint the exact placement of the year that the case occurs within the periodaddressed in that week.

Legal developments: Next, you are to discuss the relevant developments in law, legal scienceand legal practice taking place at the time of the case.

If relevant, developments completed shortly (no more than 50 years) before the placement ofthe case or about to commence shortly (also no more than 50 years) after the placement of thecase can be incorporated. Where this is done, the assignment should show clearly that the authoris well aware of the fact that these developments are, at the time of the case, future or pastevents. The underlying causes for the completion or start of these developments have to beexposed.

General topic: The main part of this element, next to the two preceding aspects, which concernthe assignment case, concerns a discussion of a general topic concerning the general externallegal history. What topic is to be discussed will be made clear in the assignment.

Regarding this topic, all relevant developments, historical occurrences and underlying causesduring the whole period will have to be scrutinized and reported upon.

Connection assignment element – didactical elementsResources for a well-executed first element of these assignments are to be be found in P. Stein’sbook, the lectures by prof. Van Rhee and the CALI modules. It is advisable to access other legalhistorical literature, to help you produce an informed opinion on the aforementioned threeaspects of this element.

NB: Since your references must of course allow for academic-level corroboration, onlyreferences to verifiable, therefore written (hard copy or internet) primary sources andacademic-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 caseLegal 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 historicalresearch to be in any way meaningful, whether it is elemental legal historical research orincorporating an, oft vital, legal historical dimension in researching modern law, knowledge ofthe legal systems is a necessity. Only when one knows how the legal system to which theresearched legal rule belongs was structured at the indicated time or times is it possible to inferany meaningful conclusions on the subject.

A more or less standard list of questions (legal systems questionnaire), with standard points ofinterest, helps to give form to the description of a legal system. This questionnaire differs slightlywith 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 arediscussed hereafter.

Territory: It is always necessary to indicate the territorial reach of a legal system. It is notsufficient in this regard to limit this territorial description to “within the Roman Empire”, or “inFrance”. In a compact, but adequate manner the territory encompassed by the Roman Empire orFrance 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, isthe population that lives under the system. The composition and social structure of their society

13

is of great interest. A good description of the economic circumstances and level of prosperity in asociety, 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 goodcontextual background to the functioning of the legal system.

Even more so than with the other aspects, a demographical description has to fit the exacttimeframe of the case. Sometimes this even means that (nearly) adjoining years ask for acompletely different description.

An example to highlight this necessity: Let us suppose a case is positioned in the Netherlandsof 1946. It is then incorrect to describe the country as occupied territory, with a populationapathetic in its majority, but still partly involved in acts of violent resistance, riling theoccupying forces and fomenting social unrest, notwithstanding the fact that only a short timebefore 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 boomingeconomic 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 wouldbe the correct description.

Governance: In this part of the assignment, you discuss the public format of state andgovernment within which a legal system has force. It is convenient, though slightly anachronisticfor weeks 1 and 2, to discuss this point in the format of Trias Politica: who has executivepowers? How are these acquired and given form? Who has legislative powers? How are theseacquired? 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 legislativepowers?

Primary legal sources: Knowing how legal rules are expressed, whether there is a logicalcoherence and system to the body of legal rules and the structure of such a system, is animportant factor in understanding a legal system. Keep in mind that even within a legal systemthe 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 alsoa necessary component of a legal system’s description. This aspect often ties in with the item onlegal 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 cleardevelopments 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 legalsystem under description is to discuss one or more of the great legal minds of that period. Forthat reason you are obliged to highlight the career of two distinguished jurists, active (orprobably 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 yetborn or is in all probability too young to be active as a jurist! Those jurists belong to earlieror 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.

14

Legal education: The format of legal education, that is how the training of new jurists is givenform, can clarify many aspects of a legal system in its entirety. Whether lawyers are formallytrained, in school or at university, what fields or even systems of law they study, whateducational methods are used, what roles jurists play in society for which their education trainsthem, what percentage of trained jurists are active outside the traditional legal occupations are allfactors 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 tolook into the official and, possibly, unofficial ways and means the populace entered intolitigation, as well as the way or ways in which malefactors were held legally accountable fortheir misdeeds. To this end, a description of the court system(s) of the legal system in question isan important feature of the legal system description.

Connection assignment element – didactical elementsThis element of the assignments is on the cutting edge of both the external legal history and theinternal, substantive legal history. The element is general, in the sense that it does not concernspecific (groups of) legal rules, but gives a general overview of the entire legal system, as thecontext within which legal rules can function. It is also substantive, as it looks into the actualway that legal rules were effective in practice. The way a system’s judiciary system works isoften the most important aspect of that system’s description.

An important resource to help you do well in this second assignment element is the firsttutorial 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 legalsystems description. The maximum word count with each task is deliberate: this will forcestudents to decide what the most important features to mention are and to learn how to be frugalbut effective in their wording.

The prescribed literature for this course is of a very general nature and passes through the threemain periods with seven-league strides. To be able to give an exact picture of a legal system inforce within a specific and short timeframe, you yourself will have to find extra sources in thelibrary, in the study landscape and on the internet that can give you the specific information youneed. You need to refer to these self-found sources for this element in the footnotes, at the righttime 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 alegal system. It is therefore incorrect to ignore all other law in the description of the general legalsystem. The rules of contract law have no specific place in this second element of theassignment. The correct place for discussing the substantive content of these rules is in the nextand third part.

Element 3: Solving the assignment caseThis part of the assignment is devoted to learning how to work with substantive legal rules froma specific timeframe, with internal historical law. The element is set up as a small, discursivelypersuasive essay, consisting of an introduction, a main part with an analysis and application ofthe 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 ofthe facts in the case has to be presented. Be aware that you are not meant to repeat the whole

15

case verbatim. Only those elements needed to understand the legal problem and explain thesolution should be given.

A good tip: check the introduction against the persuasive main body, after finishing thecomplete essay of this third assignment element. Then you can check which elements aremissing in your summary and which ones, in retrospect, are not needed because they do notreturn 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 anduses the correct legal terminology.

The information in the introduction comes from the case itself, not from primary sources oracademic level sources. It is therefore unnecessary to have reference footnotes with yourintroduction, as these would only refer to the case.

Main body: Here we find the actual discussion of the case. You start by discerning what theapplicable rules are. Be aware that in some periods you first have to decide which judicialprocess (court procedure) is the most appropriate one for the case. Only after having made thisdecision can a decision be taken regarding the applicable legal rules. To do this, you will have tosee what the probable outcome is within each possible type of judicial process present within thelegal system involved.

It is therefore possible that, before you can start discussing the applicable legal rules, you willhave to analyse a number of possible scenarios. Should this be the case, then a brief report of thisdecision making process has to be incorporated at the beginning of the main body: first explainwhich judicial process is preferable and why, and then follow with the applicable legal ruleswithin the chosen judicial process.

When the applicable legal rules have been presented, it is discussed what their force of law isand 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, whenapplicable, the initiator of the bill. If a rule of customary law, the (underlying) reasons for itslegal force are presented.

When the applicable legal rules are known, their content is discussed. Here also thedevelopment of the underlying concepts through jurisprudence and case law should beincorporated up until the timeframe of the case. It is possible that a combination can be madewith the analysis of the legal rules in question, although a separate presentation of the analysis isoften advisable.

The analysis is then applied to the facts of the case, in the same manner as you have learned inSkills training. In this aspect, you combine the analytical elements of the legal rules as factual aspossible with the case, all the while corroborating your application results with arguments andsources.

Nota bene: the persuasive main body in this element of the assignment contains references toyour sources in footnotes whenever necessary, in the correct manner according to the Hornbookon legal writing.

Conclusion: This part of the essay is more than just presenting the solution to the case. Thesolution must be underpinned by a concise repetition of the key arguments for the decision. Thisis not a complete repeat performance. In the conclusion students show that they are able todistinguish between relevant facts, theories and arguments and those less or irrelevant

16

You must not introduce new information in the conclusion. Only facts, arguments, theoriesand convictions already elaborated in the main body are to be related. There will therefore be nonotes of reference connected to a conclusion.

Connection assignment element – didactical elementsThis element explicitly builds on knowledge and skills acquired in the first half of the academicyear. Within this course, you need to acquire the necessary elementary knowledge on theworkings of substantive historical rules of contract law. The most important resources for aworthwhile execution of this element can be found in the second tutorial of each week, based ona study of the book by Feenstra/van Rhee.

Last but not least: Each assignment must be accompanied by an index of sources used. See onthis also § 2.4.

2.6 Fraud

All submitted assignments will be subjected to a “fingerprint test”. This test will includeassignments submitted by Legal History students from earlier years. If this shows that there istoo much similarity between the assignments of two or more students, these students will bereferred to the Board of Examiners.

Nota bene: second-year students are NOT allowed to use their assignments of last year. Theincorporation of one’s own texts from earlier assignments is as much seen as fraud as thatof 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 anotherstudent AND the student who has made his/her own material available to someone else will beregarded as having committed fraud.

In addition to this, the usual monitoring for plagiarism with respect to source material will becarried out. The copying of sources, both referenced and unreferenced, as well as paraphrasingsources 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 istechnically not forbidden, but is advised against in the strongest terms possible. Those who quotedo not show their ability to think and reason, only an advanced ability of using scissors and a potof 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 andcompleteness of argument and information. Within the scope of such a short writing product asthese assignments, the presence of quotations will therefore soon lead to an insufficient grade.

17

3. TUTORIALS

18

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’s tutorials!

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

Task 1, Territory/demography (150 words max)Researching a legal rule’s historical roots requires studying the general social-historical contextwithin which the rule was given form or function. In the assignments, you are therefore requiredto put the case in such social-historical context. This requires precision: being a hundred years“off” usually leads to incorrect descriptions.

Let us suppose the case under discussion is placed in Paris in 1715, a very wrong picture ispainted if you were to assert that this is the era of the French Revolution. That revolution did nottake place until 1789, while the year of the researched case saw the death of Louis XIV, le RoiSoleil, the most absolute French monarch of all times.

Assignment: Suppose, you have to write an essay on Marcus Tullius Cicero as a lawyer andstatesman. To that end, it is important for you to know exactly how things stood in Rome in theyears 64-62 BC. Find out what form of government Rome had in those days and who stood at thehelm of the Roman state; what territory was encompassed by the Roman state in those days; lookinto the structure of Roman society, the economical state of affairs, the demographic structure ofthe 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 oflegal science in the period under scrutiny. In the assignment cases, the period to be researched isreduced to one specific year.

Just as with Task 1, you cannot allow yourself to stray too far from that year, but have to beprecise. Developments important for the situation in the appointed year can and should beincorporated, 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. Thereason later developments cannot be incorporated is that they will only distort your view on theresearched timeframe, instead of clarifying it.

19

Assignment: Discuss developments in Roman jurisprudence in 35-37 AD. Look into thedevelopments concerning the schools of law and the ius publice respondendi. Do NOT look intodevelopments later than 37 AD.

Task 3, Legal developments (100 words max)Original texts by Roman jurists can help understand the developing legal interpretation of theresearched legal concept. To understand these texts, you need to know more about the authors ofthese 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 theauthor of this fragment and the two jurists he mentions. When did they live, is something knownabout their family background and social status? What does the presence of the other jurists tellyou 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 withregard to a legal concept by finding out which jurists were active at the time of the case. Onceyou know, studying their writings will help form an insight into the research topic. Both theseangles to studying history – looking into the authors of legal texts and the jurists they mention, aswell as seeing which jurists were active at any given time – are especially important for both theperiod of Roman law and of Ius Commune.

Assignment: What jurists were active around 137 AD? In this period, an important developmenttook place regarding the praetor. Find out which jurist was responsible and research hisbackground.

Task 5, Jurisdiction (100 words max)To ascertain the manner in which a case was solved at a certain point in time, it is inescapablethat we will have to know about the judicial process of that time. This is especially true when thehistorical procedure is nothing like our modern procedure, since not knowing will hinder ourunderstanding of the way the legal rule functioned.

To us, it is more than slightly strange that legal subjects should have to choose betweenvarious types of trial. Yet, just that is the case at several instances in the Roman law period. Aneven more complicated situation of different judicial processes and court proceedings existingnext to each other or partly entwined will present itself next week, when we are looking into theperiod of Ius Commune.

Assignment: You are a legal adviser in a case situated in 167 AD. The legal problem that lies atthe 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 haveto compare the praetor and the proces per formulam to the functionaries of the imperial chanceryand the cognitio extraordinaria.

20

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 wasfounded in 753 B.C., our knowledge of Roman law dates back roughly to the promulgation ofthe Law of the Twelve Tables in 450 B.C. We will study the development of Roman law from450 B.C. until its “codification” by the emperor Justinian (who effectively ruled over the EasternEmpire, 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, inEmperor 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 insociety and is part of what defines a particular society. Studying history of law is necessary tounderstand the process of how and why a particular legal system developed its specificcharacteristics. To illustrate this, in this tutorial we will attempt to place the development ofRoman contract law in its historical and social context.

In doing so, we hope to deepen your insight in the importance of “external legal history” (thecentral focus in Stein’s book, in the lectures and in the online self-study modules) for thedevelopment of specific legal concepts and institutions. To help you acquire the relevantknowledge, we recommend that first and foremost, you place every primary text used in thiscourse 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 listedbelow (Task 2). You are requested to argue from the position of a jurist of the period in whichthe 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 theperiod from which the text originates and the period of its re-use. Also, indicate whether anychanges were made to the original text.

- The author’s identity and some information on the author. Examples: When did the authorlive? 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: LegalHistory. 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 becamean enforceable agreement. Please mention the sources (texts) on which you base your answer. Ifapplicable, discuss changes in the law.Please bring your written answers to the tutorial.

21

Cases

(1) (Rome, 2nd century A.D.) Marcus, an impoverished Roman noble, has invited some senatorsto his home for dinner. He borrows some silver platters from his friend Antonius to serve themeal on. Antonius gives him the platters, on the condition that Marcus will return them one weeklater.

(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. Heborrows 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, amonth 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 philosophyin Athens and Alexandria. He asks Brutus to take care of his silver platters because he is afraidthieves 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 thefamily home. For this, he needs a loan from Brutus. Brutus wants security for the repayment ofthe 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.

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

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.

22

WEEK 2: RECEPTION AND IUS COMMUNETutorial 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’s tutorials!

Report on your findings for all tasks below in a short essay, not exceeding the maximum numberof words, indicated with each task. Reference correctly all sources used in a task in accordancewith 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 inNorthern Limburg beholden to the Holy Roman Empire, around the year 1630. The case passesthrough all available legal instances and ends at the Reichskammergericht. Discuss theseinstances.

Also, describe and name the area where the Reichskammergericht held sway as a court ofhighest instance. Discuss the government structure of this area. Indicate the sources of law of theReichskammergericht 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, whatwhere 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 hadlegal validity and the source of that legal validity. Discuss the (seeming?) antithesis between thepays de droit écrit 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 caseconsulted with a number of very famous jurists of that time. Some of these jurists were adherentsof the mos italicus, some of them were in favour of the mos gallicus. Discuss two jurists theycould have consulted, one from each legal method. Indicate, for each of them, their importancefor the development of jurisprudence. In all this, do not forget to clarify what both legal methodsentailed!

23

Task 5, Jurisprudence (150 words max)In the 17th century, the ius naturale was ‘rediscovered’. Discuss how the ius naturale developedin the years 1550-1750, taking into account international law, human rights and enlightenedabsolutism.

Task 6, Legal education (100 words max)What is the meaning of the academic title magister utriusque iuris? Discuss in what areas andfields of law such a magister would have trained. Discuss also the educational methods at theuniversity 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 onrepresenting in a case of breach of contract. What fora are available to you and which respectivebodies of legal rules are applicable in these fora?

24

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 ofthe Corpus Iuris up to the codification period. We will study the developments in this area of lawfrom ± 1000 A.D. to approximately 1750 A.D.

A main theme in this period is the influence of canon law, which followed principles distinctlydifferent from those of the (secular) civil law. Examples of canon law influence are thepreponderant role of the maxim pacta sunt servanda and the introduction of rights as a startingpoint of legal analysis instead of the duties enforceable through remedies, which were thestarting point of Roman legal thought.

In this period, the sources of the law and their applicability were complex. Some of the mostimportant sources were Roman law, canon law and customary law. It was not always clear whichrule from which particular source governed a particular case. For this reason, the legitimacy ofthe rules to be applied was of great importance. Nevertheless, often the choice of the legal sourcewas dictated by the desired result. The applicable source of law also determined, to a certainextent, 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 theperiod from which the text originates and the period of its re-use. Also, indicate whether anychanges were made to the original text.

- The author’s identity and some information on this author. Examples: When did the authorlive? 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 ELEUMmentioned above, and the materials from Comparative Contract Law: Legal History. Analyse thecases below. Determine the rules applicable to these cases and state their source, indicatingwhether the rule belongs to Roman law, canon law or customary law. Also justify why, in youropinion, the rules from the particular source chosen may be applied. Subsequently, solve thecases on the basis of the applicable rules.Please bring your answers to the tutorial.

25

Cases

(1) Falco is a young man who lives in Padua. He was born in 1125, and is now 23 years old. Fiveyears ago, he started working for Ricardo, who is a master tapestry weaver. They agreed thatRicardo would teach Falco how to design and weave tapestries. If Falco worked hard inRicardo's atelier for five years and did well, Ricardo would help Falco to be admitted to the guildof tapestry weavers. In addition, he would help him to found his own atelier and eventually toattain the master status.Falco worked hard and is now the designer and supervisor of half the tapestries that come out ofRicardo's atelier. Ricardo does not want to lose such a good employee only to create aformidable competitor. Consequently, he changes his mind: he forgets about his promise made toFalco: 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 aset series of contracts. Therefore, Falco cannot , force Ricardo to comply with his earlierpromises by going to a secular court that applies Roman law. In confusion, he wanders into hisparish church, where the local priest is reading his breviary. The kind old man asks Falco what isthe matter, and Falco tells him about his problems. The priest advises him not to go to the secularcourt, 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. Heand Grazia agree that Antonio’s daughter, Margarita, now 5 years old, should marry Grazia’s sonPaolo, now 27 years old. Of course, they need to wait until Margarita is old enough to bemarried. To make sure that in due time a marriage will indeed take place, Antonio and Graziadraft a contract containing a clause that, should a party to the contract not fulfil his/herobligations a large sum of money has to be paid to the other party.When Antonio dies, Margarita is 18 years old. A week after Antonio´s death, Margarita cancelsthe betrothal to Paolo, a profligate wastrel. Consequently, Paolo and his mother take Margarita tocourt in order to collect the sum of money indicated in the contract mentioned above. After all:an agreement is an agreement.

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

Task 3

Discuss1. What different types of ‘freedom of contract’ may be distinguished? When and how was

the concept of ‘freedom of contract’ developed?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.

26

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’s tutorials!

Report on your findings for all tasks below in a short essay, not exceeding the maximum numberof words, indicated with each task. Reference correctly all sources used in a task in accordancewith 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 situationin a very restricted timeframe. In these cases, deviations of a few years either way could lead toserious distortion of historical reality.

Assignment: Describe the territory encompassed by the Kingdom of the Netherlands in 1829. Inwhat way was the conception of this kingdom politically motivated? Discuss the social andeconomic 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 itsinfluence on jurisprudence and judicial practice? Do a background search on two of the school’sprotagonists. Why (and when) did the school’s influence decline?

Task 3, Legal education (100 words max)At the beginning of the 19th century the curriculum of legal studies in France, Belgium and theNetherlands 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 towork with look like?

27

Task 5, Jurisprudence (150 words max)Discuss the academic polemic in Germany between F. K. von Savigny and A.F.J. Thibaut in thefirst 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 legalremedies did English lawyers have at their disposal?

28

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 lawfrom 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 thefirst legal codes in Bavaria, and ends around 1900 with the introduction of the German civilcode. Idealistic notions about the results of the new codifications abounded in continentalEurope: from then on, the law would be clear and easily understood by all laypersons without the“law twisting” intervention of lawyers. It did not turn out that way.

Task 1

State for each text mentioned under ‘Texts’ above:- Its source and what type of source it is.- The moment the text was written.- The author’s identity and some information on this author.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 ofclassical Roman law, the ius commune, and the legal rules of one modern European legalsystems (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 thebook is a gift from Paul.

John hands his bracelet over to Paul. Paul thinks he is borrowing the bracelet from John, whothinks he is giving Paul a present.

Matthew sees a beautiful statuette in Mark’s garden. He offers Mark a good price for what hecalls “that little statue of Diana”. Matthew is a bit surprised, as he thinks the Diana statue is acrummy little thing, but he agrees. When he brings the statuette to Matthew’s home, Matthew isnot happy: this is not what he bought! When they go together into Mark’s garden, and Matthewpoints out the statuette, Mark disagrees with Matthew: this is not a statue of Diana, but ofMinerva! 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 shopassistant tells her that this unique piece costs ten thousand euro. The shop assistant insists thatshe pays the full price, as she has just bought the decanter.

29

Tania orders an expensive crystal decanter from a mail order company. When the decanterarrives, 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 sellsthe watch for 500 euro to his friend Peter. His father is livid: the watch was a real Zenith, worth10,000 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 perkilo. Afterwards, Johnson sends Smith a note asking for a deduction of 29 cents per kilo, as hefound out a legal measure had been promulgated which restricts the price of iron wire to 50 centsper 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 acontract 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 GermanBGB?

3. Explain in what way and to what extent modern codifications have been influenced bythe concept of error as developed on the basis of Roman law.

4. Discuss: English law has not been influenced by Roman law and consequentlycontinental ideas on error have not influenced English law.

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

30

GLOSSARYZimmermann uses a considerable number of Latin words and phrases and does not providetranslations. This is not problematic, even for students who do not read Latin, since very oftenthe 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 separatedocument.

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

31

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’s personal

sphere

ignorantia facti proprii = ignorance as regards a fact belonging to one’s personal sphere

illae qualitates rei quas paciscens praecipue ob oculos habuit = those aspects of the case that

one holds before one’s eyes while making the contract

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

32

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’s will)

volitio = intention

voluntas = will (what one intends)