COMMERCIUM

IN MEMORIAM ASSOC. PROF. RUMEN TCHOLOV

 

 

   1949 - 2005

A MEMORY OF ASSOCIATE PROFESSOR DR. RUMEN CHOLOV

Abstract: The personality of Assoc. Prof. Dr. Rumen Cholov once seen and felt can not be mistaken and can not leave indifferent to anyone. With his outstanding charisma and intellectual wealth, Professor Cholov has impressed not only as a man devoted to a science in particular to Roman law, not only as a colleague lecturer who has traced his many scientific works in Bulgarian historiography and Roman law issues, but also as a man with a heart, a good soul and a struggling spirit. He has left a deep memory in everyone he has met, communicated, trained and encouraged.

Keywords: Rumen Cholov, personality, intellect, charisma;

RESUME | READ
RUMEN CHOLOV-COLLEAGUE AND TEACHER

Abstract: Assoc. Prof. Dr. Rumen Cholov takes the discipline of Roman private law into a very difficult period for the roman department of law faculty. After the death of Prof. Mikhail Andreev, he was the only person who inherited the important legacy of the Roman tradition that Mikhail Andreev left behind. However, the great responsibility he takes does not slow him down but help him to show his full potential. His rich intellectual knowledge, combined with the ability to present them in a understandable way, made Assoc. Prof. Professor Rumen Cholov, one of the most beloved people that the Faculty of Law of Sofia University St. Kliment Ohridski has had and will always have.

Keywords: Rumen Cholov, personality, intellect, charisma;

RESUME | READ
ONE HAPPY ACCADEMIC GRIG

Abstract: The memory of Assoc. Prof. Rumen Cholov continues to live in people who have had contact with his person. And how to be forgotten when, with his free spirit and bohemian temper, he managed to stand out in a difficult academic time. People who have witnessed his character and charm, with nostalgia, remember his audacity to utter uncomfortable truths and be the leader of the new generation of intellectuals. With his great erudition and tact, goodwill and pure-heartedness, Assoc. Prof. Rumen Cholov left alive the memory of all, who touched him, for his highly intellectual and moral image of the good teacher, colleague and man.

Keywords: Rumen Cholov, personality, intellect, charisma;

RESUME | READ

ROMAN LAW

SOME CONTRIBUTIONS TO RELATIONSHIP BETWEEN DEVELOPMENT OF "ANTIQUE COMMERCIAL LAW" AND SLAVERY

Abstract: The author of this article emphasizes that he does not intend to analyze the subject in its entirety. The sources of antique law have shown that there has been a link between the development of "antique commercial law" and slavery, and slavery has influenced trade institutes, contributing to their creation and improvement.

Keywords: Roman Law, Slavery, Commerce, Antiquity;

RESUME | READ
RESPONSIBILITY OF SELLER IN CASE OF EVICTION IN ROMAN CLASSICAL LAW

Abstract: The article is devoted to the responsibility of the seller in case of eviction, which I have been dealing with since 1979 and for which a new reflection, on aspects of which I have not yet treated, can lead to partially new results. .

In this study I will approach, in the context of classical Roman law, the following case: A sells a thing to B and transfers the possession to him, the latter alienates the thing to C. The most frequent case has undoubtedly been that where B (first buyer and second seller) sells that thing to C and he transfers ownership. I will focus on the case of two successive sales. I will add only a few remarks on the cases in which the alienation made by B was a donation or a datio dotis.

In this case the questions that were asked of the classical jurists were: Can B have an action against A and, if so, what action is it, under what conditions can he proceed and what can he do? What can he asks? The legal relationship between A and B is decisive here. Three actions were possible, actio de auctoritate based on a mancipation, actio ex stipulatu based on stipulatio evictionis, finally actio empti based on a contract of emptio venditio. The answers to the questions I just asked were largely different for these three actions.

Keywords: emptio venditio, alienation, actio ex stipulatu, actio empti, mancipatio;

RESUME | READ
REMARKS ON THE METHODOLOGY OF PRIVATE LAW STUDIES: THE USE OF LATIN MAXIMS AS EXEMPLIFIED BY NEMO PLUS IURIS

Abstract: Lawyers use words with great care and, particularly in public discourse, often like to use Latin dicta. They do so not only to make their arguments sound more sophisticated, but also to support our theses not merely with elegantly worded, classical maxims, but also with well tested, established concepts based on the experience of people who lived in ancient Rome, a consummately practical society, very well versed in the practice of law.

A legal dictum formulated in Latin is referred to as a rule, maxim, definition, precept, or principle. It is impossible to differentiate these terms clearly, although this has been done for instance in the terminology used in contracts in continental private law.

How can contemporary lawyers best use Latin maxims and sentences? It is presented on the example of nemo plus iuris ad alium transferre potest, quam ipse haberet. The six steps are as follows: use maxims competently, be aware of the context of your quotation, do not let yourself be caught by surprise, make sure the maxim is well established in the law, do not neglect related and supporting maxims, take the local context into account. 

 

Keywords: Roman law, methodology, legal maxims, legal principles, nemo plus iuris

RESUME | READ
International Commercial Law in the Antiquity and Roman Banking Law in Period III-I century BC

Abstract: The article presented begins with a new analysis of the concept of Commercial law and its development from the Antiquity until modern times. After outlining the different stages of its development throughout the centuries, the author defends his understanding that Commercial law did in fact exist within the Roman legal system, albeit only to an extent and within a certain time frame. The article then continues with a legal analysis of the bankers and their activity in the Eastern and Central Mediterranean in the period III-I c. BC. It includes a detailed overview of the different kinds of banking operations that we have information about – moneylending, deposits, financial agency during auctions, accounting etc. Specific attention is given to the organizational models of exersitio mensae. In the end of the article the author makes two primary conclusions about this topic – first, that there used to be a primary „core" of rules, regulating the banking activity in particular and that these rules can be considered to be an early form of Banking law; and second, that this „Banking law" was deeply connected to the rules, regulating the commercial activities and the sea traffic.     

Keywords: Commercial law, Banking law, Roman law, Antiquity, Mediterranean;

RESUME | READ
LEGAL CONTRACT: INTRODUCTION AND THEORETICAL OVERVIEW WITH A SPECIAL REFERENCE TO WORKS OF EMILIO BETTI

Abstract: The critical view, shared by some researchers, made it necessary to give a more complete and detailed outlook to some theoretical achievements, connected to the nature of the legal contract, which were considered to be entirely accepted and established within the legal doctrine up until recently. In its first part the article presented makes a critical analysis of the common theoretical opinions in the field of Roman law and also goes it depth into the viewpoints of some of our pioneer researchers and teachers, yet also includes some thoughts upon the newest scientific trends. Then the author presents the different scientific positions, connected to the topic of the legal contract, with specific attention to the works of Emilio Betti, Vittorio Scialoja and Ursicino Alvarez Suarez. In its conclusion the author summarizes both the differences and the similarities in the opinions of these researchers, while keeping in mind Betti's idea about the development of the theory of legal contracts through the historical-dogmatic method. 

Keywords: legal contract, Roman law, elements, Pandectistics;

RESUME | READ
ROMAN CONTRACTING HISTORICAL PHENOMENON. REMARKS UPON CAUSA CONTRACTUS

Abstract: The title of this Article (La negozialità romana: Fenomeno storico e modello metastorico. Note sulla causa contractus) is the paradigm of the reflection about the Roman contracting, complex phenomenon that modern studies, by building on the previous and secular experience, have transposed considering  the specificity and Roman specialties and of his significant heuristic value.

In the following pages we deal 'again'  with the theme of negotialità, elusive figure,  in an attempt to interpret, concretely, about the historical and legal research, the needs of a methodological renewal that penetrates the ancient sources and raises a tool that offers the features of a largely unstructured system, in which are found attempts at classification and theorizing, significant since the first century. A.D., useful to the modern interpretation of the contract.

The Author uses research tools that consider  the dialectic between the lexicon of negozialità and linguistic system developed in case law, just to emphasize the concrete dynamism of a polysemic term, such as the cause. In obedience to the status of investigations, will retrace the evolutionary stages of the western Romanistic doctrin thought, from the nineteenth century, about a concept, which, although in different projections, expresses a unitary core which is represented by a function specifically identifying/generative of obligation; is analyzed with the help of sources (50.16.19 D. and D. 2.14.7 pr. - 4) the origin of the concept, the jurisprudential debate up to the integration of the two concepts of causa and sunallagma.

Keywords: Causa, sunallagma, negozialità, contractus

RESUME | READ
BANKING ACTIVITY OF MUNICIPALITIES IN PERIOD OF I-III C. AD

    The article analyzes the administrative aspects of the banking and in particular the lending activity of the Roman municipalities in the period I-III c. AD. During this period it was a common practice for Roman municipalities to lend interest loans to private individuals as a form of long-term investment and also as a way to achieve other goals of public interest, e.g. support the urban development of the respective cities. The sources, analyzed in the article, show that the decision to lend a public interest loan had to be approved by the municipal senate (although it is arguable to what extent the senate's discretion was limited by the governor of the province or the curatores rei publicae). The local magistrates would then conclude a contract with a borrower of their judgment and would be the ones to bear the responsibility in case of choosing an insolvent borrower or accepting inadequate items as collateral. All this still leaves open the question about the role of the province governor and the curatores rei publicae in the lending process.

Keywords: banking activity, municipia, civitates, decreta decurionum, curatores rei publicae;

RESUME | READ
ANTONIO DÍAZ BAUTISTA Y LA LEGISLACIÓN JUSTINIANEA ("Estudios sobre la banca bizantina")

Abstract: Antonio Díaz Bautista, Roman law Professor at the University of Murcia (Spain), published between 1979 and 1987 a series of works about the personal guarantees and banking businesses in the legislation of Justinian. This article presents the results of such research among which stands out the monograph "Estudios sobre la banca bizantina" (Murcia, 1987). It discusses different bank contracts governed in the Justinian's Novellae and the innovations introduced at the request of the banking corporation. Special interest deserves the conclusions that the Author reaches about the "kazara antifonesis" and its identification with the receptum argentarii, purportedly repealed -by deprecated - by Justinian in CJ 4.18.2.

Keywords: Justinian, argentarii, Adolfo Cremadez, Roman law;

RESUME | READ
SOME THOUGHTS UPON SUBJECT OF MORA CREDITORIS IN ROMAN LAW

Abstract: It is quite probable that in ancient times the archaic concept of the legal obligation made it impossible to have legal measures protecting the debtor when the failure to fulfill the obligation was in the creditor's fault. However, the practice to deposit sums of money or items of certain value in temples was common and (although it is arguable in which period it became so) it is likely that its purpose was exactly to give opportunity to the debtor to free himself from the obligation after unsuccessfully having done everything within his powers to fulfill it.

Keywords: failure to fulfill, mora, obligatio, obsignatio, depositio, consignation;

RESUME | READ
TABULAE POMPEIANAE 13 & 34: TWO DOCUMENTS IN CONNECTION OF MARITIME LOAN

Abstract: Despite the recently renewed interest towards the subject of the maritime loan in Roman law, there are still unclear details in connection to its origin and the structure of the contract – or more precisely to the question whether it was possible to add pecunia traiectitia cum poena (the primary penal stipulation) or the less frequently used pecunia traiectitia sine poena (a stipulation valid solely for the interest and only sometimes for the loan itself). This ambiguity comes from the lack of reliable sources, giving us information about this particular contract, the main ones being two texts from the Digestae and the Codex respectively (D. 22.2 and C. 4.33), as well as a single papyrus (PVindob. Gr. 19792) from 149 AD. This subject can be researched mainly through comparison with the Greek law and examination of its influence on Roman law, since the Greek model for the contract of loan was widely spread throughout the whole Mediterranean. However, while conducting such a research, one should also keep in mind the independent development of these two legal systems.

Keywords: Roman law, Commercial law, maritime loan, pecunia traiecticia cum poena, pecunia traiecticia sine poena, Tabulae Pompeianae 13 & 34;

RESUME | READ
LEGAL AND ECONOMIC MEASURES AGAINST CRISIS AFTER DEATH OF EMPEROR SEVERUS

Abstract: The death of Alexander Severus (235 AD) marks the beginning of Rome's prolonged crisis period. The second third of the 3rd century AD characterized by considerable political instability, which causes serious economic instability. Inflation shoots up. The economy is in recession, the value of money varies constantly, which often leads to their devaluation and loss of purchasing power. Lenders are becoming more cautious in their quest to avoid the risk. They use various legal means to ensure effective their loans and protect their interests. They want legal protection for their claims, especially for the ones that have money involved. 

As the examples given in this study, the legislative policy of the various emperors not remain alien to the state of instability. They take various measures in this context and issue regulations affecting mostly credit relations, which in the late third century AD lead to the mitigation of acute economic crisis. 

Keywords: 3rd century AD, political instability, risks, legal measures, credit relations;

RESUME | READ
CUSTODIA, RECEPTUM AND CONTRACTUAL LIABILITY. NEW OUTLOOK OF DOGMA OF CIVIL LAW IN LIGHT OF ROMAN CASUISTIC METHOD

Abstract: The issues relating to liability under contract occur - regardless of their respective individual system - on the plane of the structure of decision and responsibility on the plane of the allocation of the burden of proof. The contribution, after consideration of the main classical sources on the topic of custodia and receptum, offers a rereading update of the criterion, carved in the expression praestare custodiam, by strict interpretation of Art. 1218 of the Civil code and the provisions relating to liability so-called ex recepto which focuses on general and objective one based on contractual liability (a.k.a.: what is considered a violation in itself, not guilt) and re-interpretation of the sign cause ‘that can not be attributed to the similar language and descriptive phrases in the field of lack of responsibility for duties that focus on flexibility 'classical method' of classical Roman jurisprudence and flow into the regula nautilitas contrahentium. 

Keywords: custodia, receptum, utilitas contrahentium, contractual liability;

RESUME | READ
UNLIMITED LIABILITY IN PROSECUTION OF COMMERCIAL ACTIVITIES AS A GENERAL RULE IN ROMAN LAW

Abstract: The article presents how the unlimited liability of the trader (institor) in Roman law depends on the precise definition of the circle of his rights and obligations in connection with it's commercial activities and publicity through proscriptio those rights set out in praepositio. 

Keywords: unlimited liability, institor, praepositio, proscriptio;

RESUME | READ
METROLOGICAL HARMONIZATION AND COMMERCIAL EXCHANGE IN THE MEDITERRANEAN AT THE END OF THE 2ND CENTURY B.C.: THE ATHENIAN DECREE ON WEIGHTS AND MEASURES"

Astract: This contribution examines §3 of the  athenian decree on weights an measures from the end of the 2nd century BC (IG II² 1013) where the use of a new volume measure is ordered, and especially its §4, where the market weight of the mna is altered, attempting to clarify its legal aim and economic implications. So far, this reform has been discussed by some historians as a matter of confrontational economic policy. Examining the relation among roman and athenian weight units, it is argued that this law led to an easier convertibility among units, facilitating commerce among territories familiar with either notation, reducing transaction costs as defined by Douglass North. The interpretation of the decree in a protectionist manner of Rome against Athens is contrasted with the proposition that it might be better understood as a pragmatic regulation achieving harmonization by standardization.

Keywrods: Weights and measures; IG II2 1013; Metrological Harmonization; New Institutional Economy; Transactions Cost; Measurement Cost; mna emporike; talanton emporikon; libra; talentum; choinix

RESUME | READ
ABOUT NEGOTIATORES AND TRADE IN WESTERN ROMAN EMPIRE

Abstract: The new Empire, broken away from the ancient Roman Empire, loses its ' dynastic ' legitimacy, despite being the origin of the civilization and the Roman power; so that the glory of the Latin heritage is assumed by the Eastern Empire which proclaims itself the "nova Rome". Moreover, several factors converge in the Late Empire unifying broadly the problems of the market and the different commercial operators. However, facing the evident deterioration of commerce, the cities and the communications, the emperors of the Western roman will dictate protective measures of market activity and the maintenance of ethical principles in business.

Keywords: Negotiatores, trade, Late Empire, Western roman empire, taxes

RESUME | READ
PRINCIPLE OF IRREVOCABILITY OF FISCAL SALES

Abstract: The aim of the present study is the analysis of the imperial legislation, which stipulates the principle of the irrevocability of the sale carried out by the Treasury, even if the translatio dominii doesn't go with the traditio, provided that the buyer had paid the price of the sale sub hasta.

 

Keywords: fiscus; dominium perpetuum; sub hasta; solutio pretii; translatio dominio

RESUME | READ
ROMAN MUUTUM LIKE A BASIS OF MODERN LOAN CONTRACT

Abstract: The loan contract is among the most important treaties of modern contractual law. Its significance is confirmed by the fact that this contract is often examined after the contract of sale which is the most important contract of the property law. Although the use of another's belongings was known in the oldest generic-tribal structure of society, the roots of the loan contract can be found in Roman law. In other words, today's loan contract incorporates all the features of the Roman mutuum, although almost certainly can be argued that the loan contract is not original Institute of Roman law. That is why, whenever the genesis of the modern loan contract is mentioned the roman law is taken as a starting basis.

 

Keywords: Loan contract, roman law, mutuum, property law, contract law

RESUME | READ
Exercitor

Abstract: The article deals with some problems and fragments of the significant Roman law regulations on the responsibility of entrepreneurs and carriers in maritime transport in ancient Rome. 

Generally it is assumed that in maritime trade, legal relations, arising slaves and subservents, are a form of direct commercial representation, governed by the preator's law and they engage the responsibility of the pater familias, respectively dominus. With actio exercitoria the strict norm of civil law that subservents may not occur valid contractual relationship is overcame. There is still a discussion about the stages of creating this legislation, and the protectiont of the interests of third parties with her. 

The article makes adjustments in the terminology used in relation to the status of exercitor and others, involved in maritime trade, according to Roman law. In Romance studies ship entrepreneur is generally called "exercitor". He may be an owner or a charterer of a ship "ad tempus vel in perpetuum" (D.14. 1. De exercitoria actione, 1. 15), which is used for shipping at their own expense and risk. As an  exercitor all can operate- not only free people, but woment, slaves and even minors (with auctoritas tutoris). Magister navis is the person appointed by exercitor as the captain of the ship (slave subservient or free), which is rather manager and deals with everything, related to the maritime transport as a commercial activity: "Magistrum navis accipere debemus, cui totius navis cura mandata est ". 

The article presents the complex relationship between exercitor, gubernator navis and magister navis and the separation of the functions when it comes to trade and navigation activities.

Keywords: maritime trade, exercitor, magister navis, personae alieni iuris, servi, actio exercitoria;

RESUME | READ
CASE OF PURCHASE BY A DEFECT IN POETRY OF HORACE

Abstract: The Roman literature is an important source of the Roman law. The article examines the initial text of a letter from the poet Horace to his friend Flor. The letter is devoted to literary questions, but the issues discussed in the poetic art, the author used metaphorically different legal situations as in this case - purchase of property for the shortcomings. 

Keywords: contract of sale, a runaway slave;

RESUME | READ
The Difference between the effect of alea and risk in the Roman regulation of the obligations, facilitating the commercial turnover

Abstract: The correlation between commercial risk and the risk of perishing of the transaction object is among the main issues, discussed among merchants, economists and jurists in the Antiquity and in our days, as well. It directly depends on the structure of the so called bilateral contracts like empting and vending, lease etc., where one can find the scientific interests of our professor Rumen Cholov.

One of the curious texts in the Digests, D.22.2.5, represents the risk, periculum, as a subject matter of a transaction, where one of the parties bears it, while the other will pay its price. It is to see in it a sum of money, due as an additional payment above the initial capital. Thus, the whole is due up on the successful achievement of the goal, which is mentioned in the contract, as its suspensive condition. It means that the creditor could not claim anything if this condition is not fulfilled. The other requirement for execution of the agreement refers its separation from alea, i.e. the gamble (the pure hazard as a condition for transaction fulfilment).

The distribution of the risk is typical issue for development of contractual relations and especially for the bilateral one. However, it does not follow necessarily the synallagmatic principle. Likely, in the contract of empting and vending, the vendor is liable for custody of thing, which transfers the risk of its perishing to the emptor only for the instances of acts of God.

Similarly, the empting and vending contracts leads us towards the limits among the risk and the acceptable under the Civil law alea. We mean the empting of chance, emptio spei (alea), Cels. D.19.1.12, where the contract is deemed perfect up on the moment of consensus, notwithstanding the uncertainty about the contra-prestation of price, which is already paid. These instances, according to the Roman jurists of the early Classics, are embraced by the model, allowing Civil regulation of purely speculative vending, "quasi alea emitur" (Cels.D.19.1.12).

The aleatorial principle, which is limited in Roman law and classic Civil law theory only to a narrow case, regulating only one of the specific objects of sale, finds in the actual Bulgarian theory a striking generalised implementation.

Hear I mean the study of Stavru, Nedev and Dimitrov on the aleatorial principle. There one can find three theories for its implementation: in the contract of donation (because of maintenance, which the beneficiary has to provide for the benefactor), in the construction contract (with respect to the possible additional payments, notwithstanding that a fixed price is agreed), in the contract of support and maintenance (referring the uncertainty about the period for providing the service). We could bring some objections for all the three of the examples, which is summarised for brevity in misunderstanding of the concept of alea as a synonym of pure speculation, which is still acceptable for the Civil law, on the one hand and as a function of reciprocity, on the other. In this context we must recall its genetic dependence on the gamble, bearing on mind that even there the obligation's structure follows the understanding, elegantly expressed by Zimmermann, that one can buy alea, but cannot pay with alea. Thus, the actual Bulgarian generalised understanding of alea, in fact, contravenes to the legal requirement for the certainty of the price.

 

Keywords: risk, alea, synallagma, aleatorial, Roman law, Civil law

RESUME | READ
PORTORIUM - FRAUD AND ABUSE ACCORDING TO IOSPE I² 4

Abstract: The article deals with the problem of tax evasion in the context of the portorium, the indirect tax on the circulation of goods destined for resale. The starting point are some legal texts found in epigraphs or as part of the Justician codification, in which the main types of abuse and fraud are defined, aimed at alleviating or avoiding the weight of the portorium. After review of the framework of practices among traders on this basis, we proceed to a thorough examination of the famous Tyras letter. The careful reading of the text makes it possible to derive other ways of tax evasion, omitted in the normative texts, but at the same time characteristic for the dynamics between the Roman authorities and the provincial communities.

Keywords: Portorium, tax evasion, fraud, abuse, Tyras;

RESUME | READ
De publicanis

Abstract: This article treats the meaning of the notion „publican" in the light of the texts of Gaius and Ulpianus reached to us by the Digest of Justinian. In the fragments saved in Corpus Iuris Civilis, also are illustrated the main activities and the profile under which it is raised the juridical importance of the companies of the publicans called societates publicanorum, obviously different from the common contract of societas in the Roman law. These texts present a distinct evidence for the survivor of the phenomenon and its mass spread on the territory of the entire Roman State. This fact is also testified and in the epigraphical sources from which becomes clear, that the publicans continue to exist during the period of the Principate, beyond the chronological limits, set by the predominant part of the doctrine. Particular attention is paid in this research and for the granted from the State corpus habere or legal personality. At the end is made the conclusion, based on the texts of Cicero and many other authors, that we can deduct taken their internal structure  and organization, the corporations in which the publicans were organized present the prototype of the modern capitalist business association.

Keywords: publican, association, corpus, societas, legal personality, Gaius, Ulpianus.

RESUME | READ

CONTEMPORARY LAW AND ROMAN LAW TRADITION

AN OVERVIEW OF THE TYPOLOGY OF SYSTEMATIC APPROACHES TO THE PROBLEM OF EXISTENCE OF ROMAN COMMERCIAL LAW

Abstract: The present article focuses on four main types of doctrinal approach to the question of existence of commercial law in the Roman legal system. The examination of this main subject is preceded by a study of a variety of definitions what is commercial law and the criteria for the differentiation from civil law as a branch of private law. Some scholars study the question of existence of commercial law in the Roman legal system from the position of the traditional concept of dualism which holds civil and commercial law closely connected, but nevertheless distinct branches. Others consider "Roman commercial law" as a set of special civil law regulations which create the ‘legal infrastructure' of commercial relations in ancient Rome. A third group of scholars argue that "Roman commercial law" should be considered as a "special private law of commerce". There is also a fourth, modern approach in the contemporary Roman law doctrine. Its main point is that the so-called "Roman commercial law" cannot be looked upon as a real ‘ius mercatorum'. It is rather a created by the praetor ‘ius exercitorum' as far as it concerns undertakers of specific economic branches only, such as shippers/shipmasters in maritime commercial shipping (exercitor navis), innkeepers (cauponаe, stabularii), bankers (‘argentarii') and tabernae keepers. The main aim of ‘ius exercitorum' is to ensure a sufficient level of legal protection provided to the clients contracting with the undertakers in question. 

Keywords: Roman commercial law; actio exercitoria; actio institoria; actio tributoria; receptum cauponum, nautarum vel stabulariorum; receptum argentariorum; ius singulare; „ius exercitorum" versus "ius mercatorum"

RESUME | READ
ENIGMA OF IUS GENTIUM AND INFLUENCE OF RODIESE LAW IN FORMATION OF ROMAN CONCEPT OF CONSENSUAL CONTRACTS

Abstract: The famous expert on Roman law, prof. C. Cascione, denying the international character of ius gentium and its influence on the formation of the Roman concept of consensual contracts, deals with some peculiarities of ius gentium as an inexplicable enigma. However, the sources point to the existence of the international ius gentium and, in particular, of a maritime commercial law of Rhodes, highly developed not only in the Middle Ages, but also as early as the Hellenistic period (III-I century BC). This Rodiese law exercised a significant influence on the development of Roman contract law, and in particular, of consensual contracts. This fact is also confirmed by the history of a close alliance and commercial partnership between Rome and Rhodes in the period indicated, starting from the union between Rome and Naples (which was a colony of Rhodes), but also from the activity of Appio Claudio Cieco to the end of the 4th century B.C. and from their alliance in the wars against Carthage and the Leninist monarchs.

The author observes that initially (late IV - III century BC) Pythagoreanism, widespread in the south of Italy and perhaps also in Rhodes, played a particular role in the formation of customs and ethics of international trade by sea.

The author examines the influence of Pythagoreanism and commercial law of Rhodes on Roman politicians and jurists between the end of the third and the first half of the 2nd century BC. In particular, he dwells on Cato Senior, who in his youth was Pythagorean, and then became a friend and patron of the people of Rhodes in order to build the Roman basilica (stoa). In the article attention is also given to the international recognition attributed to the leadership of Rhodes in world trade during the third and second centuries BC. A particular role in the formation of three generations of Roman jurists during the II and I century BC is recognized by the author - the philosopher, leader of the Stoa media, Panezio and his disciples, Ecatone and Posidonius. Finally, we examine the activity of the Roman dictator Silla, who granted the people of Rhodes the right to collect commercial taxes in all the ports of the islands of the eastern Mediterranean. And also that of the emperors Octavian and Antoninus Pius who recognized the pre-eminence of the laws of Rhodes in the sea. 

In particular, the author reviews the concept of the Pythagoreans and the philosophers of Rhodes (Stoa media) of the so-called sumpatheia, a Greek synonym for the Latin legal term consensus. From the treatise of Cicero "De officiis", the author draws the arguments that seem to justify the hypothesis, that the rodiese doctrine of sumpatheia and honesty in commerce, became the basis of the famous Roman principle of good faith and a catalyst for the development of the concept of consensual contracts in the Roman jurisprudence during the II and I BC centuries. The author points out how the experience of friendship between the Roman philosophers and jurists could have been decisive for the development of the discipline of the contract of consensual sale and consensus (or sumpatheia) itself and underlines how this reconstruction data has great cultural value for modern European and even Russian business.

Keywords: consensual contracts, ius gentium, commercial law,  Rhodes, Pythagoreanism, good faith;

RESUME | READ
THE EXPERIENCE OF ROMAN PRIVATE LAW IN SWITZERLAND

Abstract: A true State since 1848, Switzerland was a political creation of the end of the Middle Ages. Situated at the centre of Europe, the country has benefited from a multitude of cultural influences that have contributed to the evolution of the law. This contribution puts forward a synthesis of the experience of Roman private law in Switzerland. The text concentrates on four significant aspects: the reception of Roman law (thirteenth – seventeenth centuries); legal science (sixteenth – nineteenth centuries); the cantonal and federal codifications (nineteenth – twentieth centuries) and finally, Roman law today.

The contribution concludes that it is not enough to simply speak of the experience of Roman law; rather it is necessary to speak of a variety of diverse experiences. Whether it be medieval Roman law, humanist Roman law, pandectist Roman law or codified Roman law, it is never the same Roman law.

Keywords: Switzerland, Roman private law, reception, legal science, codifications, experience of Roman law;

RESUME | READ
FRANCHISE CONTRACT AND ITS EVOLUTION

The franchise contract is traditionally considered a mixed or sui generis innominate contract. It may therefore seem odd to speak of the evolution of a contract which does not correspond to a predefined legal type, but which is the result of the grouping of main obligations coming from very different contracts.

Keywords: contract of franchise, sui genereis, innomaniate contract;

RESUME | READ
DELAY IN PERFORMANCE INCREASES RISK! SPECIFICS OF MORA DEBITORIS AND ITS EVOLUTION FROM ANCIENT ROME TO EUROPEAN LAW

Abstract: The question of the evolution of the effects of the debtor's delay in performance will be addressed here through a particular case: when the debtor is obliged to deliver a specific thing in a specific time and he does not, after which delayed performance becomes impossible by the occurrence of a force majeure. Imagine that John is required to deliver to Pierre a horse called Lightning on March 1st. Jean does not deliver Lightning on the scheduled date and this horse dies naturally on March 10th. The question then is: does John remain bound by his obligation, or is it Peter who bears the risk? This case seems to have received a similar answer in the different modern legal systems of Europe and Latin America.

Keywords: delay in performance, mora debitoris, risk, force majeure;

RESUME | READ
CAUSA IN FRENCH CONTRACT LAW: AN ERROR-BASED INTERPRETATION OF ROMAN LEGAL SOURCES

Abstract: Roman law laid the keystone upon which the general theory of contracts in modern French law recognized the causa as an essential element of contracts. In Rome, the causa is considered in relation to unnamed contracts, abstract stipulations and unjust enrichment. Medieval jurists relied on Roman sources on the cause to generalize the principle of consensuality in contractual obligations. Once consensualism was established, recourse to the cause might seem superfluous, but it was not so in France where the causa was conceived by the doctrine as the cornerstone of the consensual theory.

Keywords: causa, contract law, French law, unnamed contracts, abstract stipulations, unjust enrichment, principle of consensuality;

RESUME | READ
SOME CONSIDERATIONS ABOUT THE SALVAGE OPERATIONS BY CONTRACT AND CASUAL FINDING OF GOODS - RECEPTION AND IMPACT OF ROMAN PRINCIPLES IN SPANISH LAW 14/2014 OF 24 JULY 2014 FOR MARITIME NAVIGATION

Abstract: The Roman legal experience contains a vast number of norms in relation to the safety of navigation, rescue  of people and finding of  goods in the marine waters. The new Maritime Navigation Law 14/2014 is not strange to many of the principles that have been in operation since Roman times and which were previously codified in the Commercial Code. This study aims to discover the common points, connections and influence of Roman law with regard to the salvage and taking out of goods from the sea. We are trying to explore the past to understand the current legislation.

Keywords: Law for maritime navigation, salvage, finding, help, non cure non pay;

RESUME | READ
MODERN PROJECTIONS OF ACTIONES ADIECTICIAE QUALITATIS

Abstract: The recourse to third-party services for the development of trade and the expansion of the economy have a key place in Ancient Rome. Then, as in today's business case management, usually are used the services of all persons that are interested in the business. Most often, it was entrusted to the care of the sons or slaves, but sometimes it also asked the help of another free man or a slave who belongs to someone else. For this reason, it is quite natural to have claims relating precisely to this issue. Amongst them can be included actio institoria, actio exercitoria, actio quod iussu. The article deals with the "survival" of these claims and the responsibility for them in the modern law.

Keywords: аctiones adiecticiae qualitatis, commercium, personae alieni iuris;

RESUME | READ
EXCEPTIO DOLI GENERALIS AND INDEPENDENT GUARANTY AGREEMENTS
Abstract: The separated guaranty contract can be defined as an abstract transaction because the causal element is not manifested in its structure. In this context, at the time, the guarantee is requested, there may be a lack of cause to justify it, and for that reason a prior control of its existence is necessary. The guarantor's protection can be done by exception doli generalis as a preventive measure against unjust enrichment.

Keywords: abuse of the law, separated guaranty contract, cause of the contract, еxceptio doli generali;

RESUME | READ
INFLUENCE OF ROMAN LAW ON BUSINESS AND BANK ACTIVITIES IN NEW WORLD

Abstract: As Fadda says, we should not believe that in Ancient Rome commercial law has been developed in the modern sense of the word, but we have to research how the Roman law has elaborated at various stages of its development and for the needs of trade particular norms, that allow us to understand and teach this discipline in Modern times. This article analyzes some protection measures introduced in the commercial and banking activities of Rome. This is the case for the  debtors who are under a loan agreement (mutuum) who have been granted exceptio non numeratae pecuniae in order to limit the ability of the borrowers. By means of this remedy, the burden to prove is transferred to the lender, who has to prove that a numeratio has been carried out. The other measure considered is the receptum argentarii, which allows two distant and unaware persons to enter into contracts for sale through a banker. Finally is presented the situation of the bankers during the rule of Justinian. They were passing a serious crisis, and in order to protect credit relations, Justinian sets out measures in favor of bankers, which are politically necessary but legally controversial. The three analyzed cases are about the reception that these measures had or could have in the modern situation of the Argentine Republic.

Keywords: Roman law, protection, bankers;

RESUME | READ
EL CONTRATO DE MUTUO EN LA REPUPLICA ARGENTINA Y SU PROYECCION LEGISLATIVA: UNA MIRADA DESDE DERECHO ROMANO

Abstract: The present work supports the loan agreement ("Mutuum") as a typically "real contract", from the roman law standpoint, as a source of our western culture and legal science. We discussed about its application to projected legislative reforms  pending on our internal law and reaffirmed its original character as a sample of knowledge of de roman jurists.

Keywords: Real contracts- Loan Agreement - Roman Law;

RESUME | READ
DOMICILE OF LEGAL ENTITIES: EVOLUTION OF CONCEPT FROM ROMAN TO MODERN LAW

Abstract: The Roman law does not elaborate a common concept of a legal personality, nevertheless it individualises different types of legal entities and social and professional communities as holders of rights and obligations. Their domicile is the relationship between them and a certain territory which is defined in their statutes or by the legal order and the public authority.

The present positive law contains specific norms for the domiciles of the different legal entities related to the legal representation and the place of performing their main activity, as defined in Art. 41 of the Spanish Civil Code, as well as norms for determining the domicile of different legal entities on the territory of Spain by virtue of Article 28 of the Civil Code.

Keywords: domicilium, domicile, legal personality, Roman law, Modern Spanis Law;

 

RESUME | READ
LEX MERCATORIA AND UNIFICATION OF PRIVATE LAW IN EUROPE

Abstract: The article presents a brief overview of the new lex mercatoria as a phenomenon of the legal globalization (global law) and offers a critics to the  of the so-called "harmonizing" nature of this legal phenomenon related to the creation of a hegemonic model of modern business law that, however, is moving away from the categories of the European legal tradition.  In the article are summarized the tendencies for a deeper unification of European private law under the influence of political and legal mechanisms, which limits the globalization and ensures the maintenance of the legal standards of the civilian European tradition.

Keywords: lex mercatoria, commercial law, private law, European legal tradition;

RESUME | READ
Actio pro socio and actio de communi dividundo in roman and contemporary law

Abstract: The subject of trade relations governed by Roman law is related to the partnership (societas), which bring together roman citizens for carrying out commercial activities, often with the use of the considerable capital and merging multiple parties to achieve certain commercial purpose. Some procedural issues are treated in connection with this subject and they are in the focus of this article.

Keywords: societas, аctio pro socio, actio de communi dividundo, roman law, contemporary law

RESUME | READ
Concluding of the legal affairs in medieval eastern adriatic towns

Abstract: The notary document had a constitutive character and represented a material and legal presupposition of the importance of some very significant legal matters in the life of the Adriatic coastal communes . That primarily refers to the turn over of immovable, personal and real provision of an obligation as well as establishing a dowry and wills .

Such attitudes in settling matters through notary maps came to the Adriatic Medieval towns from the towns of the Mediterranean area and represents acceptance of the reception Roman law (ius commune) . In some less developed areas there were exceptions to these rules, which is quite understandable when the local specific characteristics are taken into consideration.

Keywords: Legal affairs, notary acts, Medieval towns, ius commune

RESUME | READ
RECENT CHANGES IN CODE OF CIVIL PROCEDURE IN MATTER OF JOINDER OF CLAIMS

Abstract: The article deals with two recent amendments to the CCP / SG No 50/2015/. One relates to the provision of Article 104, item 6, which creates a new hypothesis of subject matter cognizance of district court, on claims, regardless of their cost, initially brought by plaintiff in a single statement with a claim generically cognizable in the district court, under the condition that these actions are subject to examination according to identical procedure. The other prohibits the court to disjoinder cases when there is a connection between their subject matter, unless they are not subject to examination according to identical procedure / Art.210, Para 2/. А critical analysis leads to the conclusions that the above discussed amendments may be shared as timely, internally coherent, and efficiency needed for the statement of defense, if the rule of item 6 of Article 104 CCP refers to all types and forms of joinder of actions, only in case there is a connection between their subject matter and under the condition that the main (or original) action is generically cognizable by district court. The condition of identical procedure should also not cover cases in which there is a connection between the subject matter of joined claims.

Keywords: Civil procedure, joined claims;

RESUME | READ
The prototype of the insolvency proceedings in the Roman Law and its historic development in Europe

Abstract: As a type of enforcement proceedings, insolvency proceedings follow closely the genesis of the general enforcement proceedings against debtors. Therefore, it is logical that the historical roots of its development are linked not to the emergence and development of commercial law, but much earlier with the legal regulation of the very first forms of enforcement of claims. Roman law is familiar with individual enforcement procedures but not with insolvency proceedings as a universal type of enforcement procedure. This article present a brief comparative analysis between different forms of enforcement of claims in Roman law (Venditio bonorum, distractio bonorum, cessio bonorum) and the main elements of the insolvency proceedings as a universal type of enforcement proceedings. Various aspects of this comparison point out similarities between both types of enforcement of claims, such as: under Roman law for the first time creditors obtain the right to actively participate in the enforcement proceedings, which they later preserve in insolvency proceeding via the Creditors' Committee; the current figure of "trustee" in insolvency proceedings can trace its origins to the "curator" in Roman law; also there, we can find the earliest versions of the arrangement with creditors, the public proclamation of the debtor's insolvency, the accession of creditors and the proportional satisfaction of their claims as the main attributes of the beginning of universal enforcement of claims in Roman law. The conclusions of the analysis support the old issue in legal theory regarding the genetic links between some Roman legal figures and their counterparts in modern commercial law.

Keywords: Insolvency, enforcement of claims, proportional satisfaction of creditor's claims, trustee

RESUME | READ
ROMAN AND MODERN ASPECTS OF THE ACQUISITION OF PROPERTY RIGHTS BY HUSBAND-TRADER

Abstract: The article searches the historical roots of the separation of property acquired by a husband-trader for the exercising of his trade activity outside the scope of matrimonial property. They are found in the institution of dowry (dos), which the husband returned back before the other creditors in the liquidation of societas omnium bonorum. This solution can be found in a lot of contemporary legislatios today. They regulate that in the patrimony of the husband - trader was formed a specific set of rights defined as a commercial enterprise, and that this complex is distinguished from the matrimonial property. In the article is researched the development of this idea in Bulgarian private law and in Bugarian court practice.

Parallelly with this problem was researched whether the special status of dowry estates can be considered as a prototype of the contemporary matrimonial property.

Keywords: matrimonial property, personal property, property rights, husband-trader

RESUME | READ
SECURITY COLLATERAL ARRANGEMENT OVER RES INCORPORALES AND THEIR PROVISION BY ‘POSSESSION AND CONTROL'

Abstract: This article examines the problems of res incorporales (intangible objects, for example, claims) related to their provision under security collateral arrangements. The starting point of the research is Roman law and its requirements for so-called ‘real contracts' such as mutuum, commodatum, depositum and pignus. It is believed that the real contracts required physical delivery of the object of the collateral. Roman lawyers believed that is impossible "to touch or see" claims or receivables and that was the reason for them to think that the only possible way to provide res inscorporales (claims or receivables) as collateral under security arrangements is quasi possessio. It is also believed that the so-called pignus nominis (security arrangement over claims) was possible by way of pactum or contractus. The ‘real' provision of the security was not possible due to its nature.

The next part of research deals with contemporary security financial collateral arrangement regulated by Directive 2002/47/EC. The authors examine The UK leading insolvency case law as Gray v G-T-P Group Ltd, Re F2G Realisations Ltd (in liquidation) [2010] EWHC 1772 (Ch) and Re Lehman Brothers International (Europe) (in administration) [2012] EWHC 2997 (Ch). The decision in the first case held that G-T-P did not have possession or control, because collateral taker (the chargee) did not prevent the collateral provider (the chargor) from dealing with the charged assets, whereas until one of the specified events occurred, which means that G-T-P has not valid financial collateral. The second judgment is Re Lehman Brothers International (Europe) (in administration). It is also held that it would be wrong to limit "possession" in such a way as to exclude any application to intangibles ([2012] EWHC 2997 (Ch), par. 131).

It is of interest to point out that if the above mentioned cases were to be decided under Luxembourg legislation the judgments would be different. For example, the case of Gray v G-T-P Group Ltd, Re F2G Realisations Ltd (in liquidation) was about a security interest over cash in a bank account. The judgment held that collateral taker did not exercise enough possession and control over the collateral. In Luxembourg if the pledge is over claims, the transfer of possession is effected as against the debtor and the third parties by the mere conclusion of the pledge contract - Art. 5 (4) Law of 5 August 2005 on financial collateral arrangements (Luxembourg).

          The judgment of Re Lehman Brothers International (Europe) (in administration) held that dispossession was needed. The financial collateral was financial instruments according to the Master Custody Agreement between LBIE and LBF dated 22nd. of August 2003. It may be supposed that the subject of financial collateral was book entry financial instruments.

          Again under the laws of Luxembourg if financial instruments are pledged, the transfer of possession of such financial instruments may be done as Art. 5 (2)(a) Law of 5 August 2005 on financial collateral arrangements (Luxembourg) required and without dispossession.

          It could be seen the possession in the above mentioned Luxembourg legislation differs from common law judgments understanding. The transfer of possession can be achieved only by agreement or book entry registration.

          The conclusion is that it is not appropriate for national courts to use their own case law in their efforts to reveal the meaning of EU law as is the case with possession and control under Directive 2002/47/EC by using of jurisdiction case law specificities. Gray v G-T-P Group Ltd, Re F2G Realisations Ltd (in liquidation) and Re Lehman Brothers International (Europe) (in administration) relay on older case law dealing with common law problems (as Re Spectrum Plus Limited (in liquidation) [2005] 2 AC 680, Re Cosslett (Contractors) Limited [1998] 2 WLR 131, CA, Queen's Moat Houses Plc v. Capita IRG Trustees Limited [2004] EWHC 868 (Ch), Agnew v Inland Revenue[2001] 2 AC 710 and Re Bank of Credit Commerce International SA (No. 8) [1996] Ch 245). This is in contradiction to the principle of autonomous construction of the rules and terms of the EU law and its predominance over the internal laws of Member States.

Keywords: EU law, Possesion and control, res incorporales

RESUME | READ
ESTABLISHMENT OF COMMERCIAL LAW IN 19th CENTURY BULGARIA

Abstract: The article examines the creation of the first Bulgarian Commercial Law in the year of 1897 as part of the process of building a new Bulgarian legal system. The need of establishing of a Bulgarian Law is considered in connection with the shortcomings of the current welded Turkish legislation and its inadequacy with the circumstances of late 19 century Bulgaria as well as the implementation of policy by the government of Dr. Konstantin Stoilov (1894-1899) towards creating conditions for economic development.

As other laws created in Bulgaria after the Liberation, the Commercial Law is a result of reception. The article examines the reasons why during the preparation of the draft-law examples of both German and Roman legal systems are used. Its adoption in Parliament is carried out for only several short days without any serious discussions or amendment proposals. With the Commercial Law new norms and principles are included in the Bulgarian legal system, the formulation of which is a result of the development of the Legal science and the experience in law enforcement in developed European countries in the second half of the 19th century. The law has indeed some shortcomings as it does not regulate sea-trade, limited liability companies, stipulates the need that a married woman needs the consent of her husband so as to carry out commercial activities, etc.

As the adoption process, the content of the Bulgarian Commercial Law of 1897 has its flaws, but the law itself is a positive example of the inclusion of the new Bulgarian legislation to the European legal traditions. The adoption of the Commercial Law contributes greatly the development of economic relations in Bulgaria at the turn of the centuries.

Keywords: Bulgarian commercial law, History of the bulgarian law, Commercial legislation, the government of Dr. Konstantin Stoilov

RESUME | READ
On the Roots of the Doctrine of causa in Roman Law

Abstract: The article focuses on the roots of the doctrine of causa in Roman law. In the context of D. 2.14.7.4 and D. 2.14.7.1-2 causa appeared to be a characteristic element of the so-called innominate contracts as far as there was a civil obligation, provided that a "ground" was present. On second place, despite the abstract character of the stipulation in Roman law the lack of an underlying ground (purpose, causa) of a stipulation could be taken into consideration if the promisee raised an exceptio doli. Third, the idea of causa appeared in connection of Roman condictiones of an ‘obligation sine causa'. This article gives additional arguments to the conclusions of French lawyer Prof. J. Bry that the Romans did not develop a general theory of causa, because they did not need it considering the "closed" (numerus clausus) contract system in Roman law, but they have often applied its principles.  

Keywords: the doctrine of causa, Roman contract law, innominate contracts, stipulation, exceptio doli, condictiones sine causa; 

RESUME | READ
Dolus bonus in Roman and Contemporary Law

Abstract: This research paper scrutinizes the notion of dolus bonus at the time of Ancient Rome compared to its nowadays' meaning. In addition, the author analyses the ratio between dolus bonus and dolus malus and their importance on the notion of dolus.

In contemporary law the problem is often discussed in connection with the deceit as the reason for nullification of contracts. The author sketches the borderline between good intention (dolus bonus) and bad intention/faith (one of deceit's prerequisites). The paper considers other contemporary (Bulgarian, but having EU origin) legislation which puts indirect limitations on good intention, too. Under this legislation dolus bonus should not create any probability on misbelief (as a  deceit's prerequisite) or on (material/non material) loss by the addressee.

Keywords: dolus bonus; dolus; deceit; nullification of contract; good intention; commercial puffs; advertising; consumer; (unfair) competition 

RESUME | READ