Prawo rzymskie i tradycja romanistyczna [2200-1P005S] Rok akademicki 2020/21
Ćwiczenia, grupa nr 100

Schulz, Classical Roman Law

Borkowski – Du Plessis, Roman Law

and the materials distributed during the class

The Course of Principles of Roman Law, part I aims at introducing the student into the world of legal thinking, law-creation and case-solving methods. It will use as the laboratory the basic notions of Roman Private Law: presenting its history and law-finding methods, from the beginning of the Law till the Justinianic Compilation, and basic institution of the Family law and law of property.

LEARNING OUTCOMES:

UPON COMPLETION OF THE COURSE A STUDENT WILL

[KNOWLEDGE]

1. get acquainted with the technical language, know the technical language

2. get acquainted with the basic algorithms of legal thinking.

[SKILLS]

3. be able to search and use materials (inc. foreign) broadening his knowledge acquired during the classes.

4. prepare and present exegeges of easy legal texts (orally and in writing)

5. justify his or her opinion in a debate in the classroom skilfully using technical language (at least at the basic level)

6. identify a legal problem and suggest its solution

[COMPETENCES]

7. value team-work

8. understand and critically comment presented legal solutions presented, and value diversity as well as justification of a variety – even contrasting – opinions.

Winter Semester:

UNIT 1: Introduction

What is Roman Law. Its role in the legal studies. Reception of Roman law and its doctrine. Presentation of the course. Roman definitions of law, partitions of law and basic legal notions. ius civile, ius honorarium, ius gentium, ius naturale.

UNIT 2–3: The Early History of the Sources of Roman law.

A) Archaic Law. The Law of Twelve Tables. B) Sources of Pre-classical Law: The Birth of the Jurisprudence. The Edict.

UNIT 4: The Later History of the Sources of Roman law.

A) Classical Roman Law: New forms of law creation. Imperial constitutions, decrees of the senate; jurisprudence and the massive growth of the body of law. B) Attempts at Ordination of the whole Body of Law. Postclassical legal collections. Justinian and his codification.

UNIT 5: The Law of Persons. Pater Familias & Familia.

Divisions of Persons. Citizens vs. Non-Citizens. Free vs. Slaves. Autonomous vs. Dependent. Roman Familia. Pater Familias and his Power.

UNITS 6-7-8: The Law of Persons. Slaves, Persons in Power and Their Participation in Commerce. Noxal Liability.

Dominica potestas vs. patria potestas. Slavery. The use of slaves and subjects in transactions: Pater familias' liability for his subjects. The «system» of «actiones adiecticiae qualitatis». Introduction to the Formulary procedure. Cases. Noxal Liability. Cases.

UNIT 9: Guardianship

The notion of Guardianship. Protection of minors. Women and their Standing in Law.

UNIT 10: The Roman Law of Marriage

The purpose of marriage. Various models of marriage in History. The originality and the aim of the Roman constuction. Affectio Maritalis. Pre-requisites of Marriage. Modern Implications

UNITs 11–12: Property and Possession and their Protection; Aquisition of Property and Possession

The notion of Property. Real and personal rights and their protection. Rei Vindicatio. Actio Publiciana. Types of Property. The action: legitimation. Division of Things. Aquisition of Property and Possession. Derivative Modes. Original Modes.

UNITs 13–14: Real Rights/Pledge

Servitudes. Usufruct. Pledge and Mortgage

UNIT 15: The mock-exam

Summer semester

Summer Semester:

UNITS 1-2: Successions

The notion of Succession. 'Natural' vs. Succession by Will. Succession based on the Law of XII Tables. Early Roman Wills. How to circumvent the Limitations? Praetorian vs. Civil Succession Types of Wills. Testamentary Provisions in Detail. The Will of Kronion.

UNIT 3: The Law of Obligations: the Introduction.

The Origins and the Division thereof. The Genesis (From nexum, fiducia, stipulatio & talio to Contractual and Delictual Liability). A unique Roman Invention? The Sources. The Contents and the Conditions thereof. Impossibility. No Obligation in favour of the 3rd Party. Dare-Facere-Praestare. Divisibility and Indivisibility.

UNIT 4: The Law of Obligations: Stipulation

The Rite. The Advantages thereof. Formal and Abstracts Acts Revisited (Abstractiveness vs. Causality. Conditions). Presumptions. Perfomance of Certain/Uncertain. Actions. Abstract Legal Transactions Revisited.

UNIT 5: The Law of Obligations: The 'Real' Contracts.

Real Contracts in General: Ways of Contract Making, the Genesis. Similarities and Differences: mutuum (loan for consumption) vs. depositum (deposit), pignus (pledge) commodatum (loan for use). Liability of the Debtor. Custodia Introduced. Mutuum and Depositum Irregulare : how 'Real' Are They? (Fictitious Transfer).

UNITs 6–7 The Law of Obligations: The Contract of Sale

Necessary Components of the Transaction: Price and Merchandise. The Problem of Price (the Difference between Sabinians and Proculeians and the Reasons thereof). Consent as the Basis of the Contract. Risk vs. Duty to Safekeep. Good Faith as the Basis of Liability. Seller's Liability for Defects. Additional Pacts and the Versality of the Contract.

UNIT 8 The Law of Obligations: The Contract of Hire/Lease

Necessary Components of the Transaction: Rent and Merchandise. Likeness to Sale. Types of Locatio-Conductio. The Management of Risk. Contractual Liability in General (dolus-fraud : culpa-negligence : custodia-safekeeping : vis - 'force majeure'). Maritime transport, the Function of Receptum nautarum (Warranty of the Capitan).Lex Rhodia de iactu.

UNIT 9 The Law of Obligations: The Contract of Mandate

Gratuitous Services in the Roman Word. Liability of the Mandatary (Fraud or Fraud + Gross Negligence?) and of the Mandator. Exceeding the Terms of Mandate. Silent (Implied) Mandate. Mandate for the Sole Benefit of the Mandatary. Mandatum Qualificatum. Death and Mandate.

UNIT 10: The Law of Obligations: Liability without a Prior Agreement: Negotiorum gestio (Agency without Commission)

The notion of Quasi-contracts and their Division. Agency without Commission: The Origins. The Actions. Liability of the Agent without Mandate. The Basis of Master's Liability: Utility.Other Examples of Liability Similar to the Contractual: Bequests, Co-ownership, Guardianship.

UNIT 11: The Law of Obligations: Undue Payment and Surpassing the numerus clausus of the Roman Contracts

A) The notion of solutio indebiti. Undue Payment and Unjustified Enrichment: the Differences. Condictio and rei vindicatio. Traditio and the Transfer of Ownership: 'close' and 'remote' cause (causa acquirendi/causa retinendi). condictio ob turpem causam. B) Beyond the numerus clausus of Roman contracts: the role of stipulatio. Informal pacts and their influence on legal transactions based on strict law and on good faith. exceptio pacti. contractus reales innominati.

UNIT 12: A Deficient Statute and how to Mend it? Aquilian Damage

Liability for Iniuria in the Archaic Times. Aquilian Plebiscite and its Origins. The Statute and its Defects. Interpretation of Damnum. Directness of Damage.

UNIT 13: Elements of Delictual Liability: Aquilian Liability Continued. Pauperies.

Unlawfulness in the Original Statute: Strict Liability. Exemptions (Defences?) from Liability: Lawfulness, Force-majeure and Necessity, Impossibility to Reason, Contributory Negligence of the Victim, Assuming of Risk. Self-Defence and its Limits. Unlawfulness in Praeclassical and Classical Period (Liability Based on Negligence): Duty of Care in Roman Law?. The Character of the Action. Contractual vs. Delictual Liability. Requisites for the Aquilian and Analogous Action (A Sum-up). Pauperies. Homework x 2

UNIT 14: Elements of Delictual Liability: Beyond Lex Aquilia:

The Traffic Accident Case Solved. Corruption of Slave. Deceit and Duress.

UNIT 15: Elements of Delictual Liability: Beyond Lex Aquilia:

Liability for the Damages inflicted by the Others (Edictum against the Ship-Captains, Inn- and Stable-Keepers; Edict on Pouring and Throwing Things). Liability for Damage Concluded.

lecture/discussion in the class/oral and written expositions of the the students.

Evaluation:

homework evaluation, continuous evaluation of the work at the class, evaluation of the students' participation at Moodle.

A mock-exam after each semester: cases, open questions, followed an oral colloquium .

Final exam: in English (optional) or in Polish (with the regular students of the Polish classes).

The open-book exam in English shall consist of a written part (cases, open questions, text-exegesis) and of an oral part (discussion of the material).

zajęcia w języku angielskim/Class in English