Wednesday, September 29, 2010

PIGNUS

Contract	PIGNUS
Object	Guarantee of a debit/ Pledge
Definition	Pignus was a contract in which a debtor delivered a thing to his creditor as security for the debt. The delivery of the thing gave rise to the obligation on the part of the debtor to return it upon payment of the debt.
Type of contract	Real – perfected by the delivery of the thing-, bonae fidei
Parties	Pledgor (debtor) in this contract both parties were benefitted Pledgee (creditor)
Obligations	Pledgee: to return the thing upon payment – in case he excercised the right of sale if the debt was not paid, he had to return the balance of the proceeds after paying himself the amount of the debt) Pledgor: expenses caused by the thing to the pledgee
Features	There were three kinds of pignus in Roman Law: Pignus: Mobile objects- the pledge has material possession of the thing Hypotheca: it is similar to the modern mortgage – no material transfer of the thing Antichresis
Essential Elements	Credit Delivery of the Object Ownership of the object (if something was given in pignus, it could be sold in case of default of payment. If a third party allowed a thing to be pignus of someone else's credir, he was guaranteeing the other person's credit himself)
Standard of care	Because both parties benefitted the standard of care is Omnia diligentia (culpa levis- bonus pater familiae- objective standard)
Action	Pledgee: Actio pignoraticia directa Pledgor: Actio pignoraticia contraria

Tuesday, September 28, 2010

DEPOSITUM

Contract	DEPOSITUM
Object	Safekeeping/Custody of things
Definition	Depositum in a contract by which one person (depositor) delivered a thing to another one (depositee/ depositaruim) to keep for him gratuitously and to return it on demand
Type of contract	Bilateral, Bonae fidei, real – perfected by the delivery of the thing-
Parties	Depositor: Beneficiary of this contract Depositee/ depositarium
Obligations	Depositee: To keep the thing delivered and return exactly what he has received on demand
Features	Ownership is not transferred –difference with mutuum Use is not allowed- difference with commodatum
Essential Elements	Delivery of the thing Irregular deposit: when fungible things or consumable things (like money) were delivered in deposit (for safekeeping purposes) it was considered an irregular deposit ( in reality is a mutuum but it was allowed as an irregular deposit to allow the action depositum which was bonae fideii instead of the Actio Condictio which was of strict law)- THINK ABOUT THE MONEY YOU PUT IN THE BANKS
Standard of care	Depositee/Depositarium: was only liable for dolus , loss or damage caused by positive action from him Depositor: expenses and damages caused by the thing
Action	Breach of depositee: fail to return the thing on demand: Actio depositum directa To enforce rights from this contract against the depositor: Actio depositum contraria

MUTUUM

Contract Name	MUTUUM
Object	Loan of consumption
Definition	There will be mutuum or consumption loan, when a party is obliged to deliver a number of things to another party that the latter is allowed to consume or exchange. The receiving party must return in the agreed time, as many things of the same kind and quality. The thing under this contract must be consumable or fungible when not consumable
Parties	Lender Borrower: he is the beneficiary of this contract UNLESS the parties agree on interests
Type of contract	Gratuit (Onerous onlyif there are interests agreed), real –perfected by the traditio-, stricti iuris
Obligation	Borrower: To return equivalent + agreed interest
Features	Compound interest (to charge interest over interests owed): Prohibited Usury limit: 1/12 per year in XII tables – reduce to 1/24 per year. Justinian: 4 to 12% depending on the person
Essential Elements	Traditio Object: Mobile, fungible or consumable. Determined: Quantity, quality and type
Standard of care	Borrower was the owner of the thing after it had been handed over.
Remedies	Condictio

COMMODATUM

Contract	COMMODATUM
Object	Loan of use
Definition	There will be a commodatum when a person gives something for free to another person an immovable, not fungible and not consumable object for him to use it. After the use has been done the same thing must be returned.
Type of contract	Real, gratuit, bilateral, Bonae Fidei (praetorian origin)
Parties	Commodans: Lender Comodatarium: Borrower- sole beneficiary of this contract
Obligation	Lender: To allow the use of the thing Borrower: To return the thing after the agreed term
Essential Elements	Handover of the thing: there is no tradition – no change of owner Object Not consumable/fungible: the thing must be susceptible to be returned
Standard of care	Omnia diligentia: Borrower must take care of the thing as a bonus pater familias = objective standard/ higher care than he would take with his own things. Borrower is liable for loss when: thing is stolen (he should have taken care of it), when it is lost due to his/her negligence. Not liable for accident or loss for causes beyond his control (vis maior/force majeure) Lender is liable for: extraordinary expenses in caring of the thing, fraud (dolus) or gross negligence (culpa lata)
Actions	Default of borrower: Actio commodati directa Different use by the borrower: Actio furti To enforce the borrowers rights: Actio commodati contraria

Thursday, September 23, 2010

Roman Law Moot, the action!

Just before the moment of the truth, the spring blooms with its floral smells and the colorful collage of the season. STOP, smell the flowers, they are just there, outside your classroom!

Getting ready!!

And... action.

Every participant was brilliant.

Even if a bit nervous....

Shining

The judges were impressed!

Three venues, three sets of three judges simultaneously listening to the presentation of the cases

It was not an easy choice: your presentations were of high quality

Competent comunication took place

An attentive audience : peer review

Singing praises and handing prizes, I was the proudest tutor on earth.

Many thanks Prof Meiring, you really made it happen!

Wednesday, September 22, 2010

FOUNDATIONS’ CONTRACTS HANDOUT I

Roman law of Obligations:

Gaius 3, 88: The obligations are divided in two: Contract or Delict.
Also, some obligations can exist by imposition of the law.

The essence of the Obligations

is not to obtain ownership of a thing, but to constrain someone to GIVE, DO or COMPENSATE something to us. (Paulus. D. 44,7,3 pr)
Contractus was a word specific to binding pacts. Pacts could be either informal or not recognised by the law, whereas Contractus were always recognised by the civil law.

Contracts can be:

A)STRICTI IURIS Formal: The use of specific formalities and words was essential for the perfection of these contracts.

Stipulatio:

VERBAL CONTRACT

: was the solemn contract by definition. It created obligations upon exhaustion of the formalities required by the law. Its purpose was to either to CREATE OBLIGATIONS or to TRANSFORM THEM.

Essential elements

Corresponding words: Promittis? - Promitto// Dabis?- Dabo// Spondes?- Spondeo// Facies- Faciam

Possibility

Capacity

Other possible elements:

Term

Condition

Remedies:

Actio ex stipulatu

Condictio

B)BONAE FIDEI: They are perfected by the mere consensus.

See article referred in previous entry.
Coming up next……

More classifications...

Real Contracts:

They are only perfected (created) when something passes from one party to party, the thing (object of the contract) had to actually be handed over to create the contract). THEY DO NOT GIVE RIGHT TO A REAL ACTION. The only action available for these kind of contracts is a personal action (ius ad rem). Kinds of real contracts:

- Loan: Mutuum
- Deposit Depositum
- Pleadge: Pignus/ Hypotheca/ Antichressis.

Three Types of Consensual Contract in First Century Roman Empire

Three Types of Consensual Contract in First Century Roman Empire

Click in the link above (three types of....), it will take you to a very brief but clear comment with the elements of:

- Emptio Venditio
- Locatio Conductio
- Societas.

Saturday, September 18, 2010

Roman Law Moot I. YOU DID IT!!!!

Firstly, I have to thank my co-conspirators Prof. Jean Meiring and Prof Vlad Movshovich for supporting, sponsoring and making of this experiment a true success. Secondly, I must say that I am incredibly proud of all the participants because they gave a 120%, they were brilliant, brave, elocuent and showed that we can aim for the stars. Also, I am eternally grateful to all the very important members of the Johannesburg Bar, Attorneys and Law school staff who dedicated their Friday afternoon to adjudicate for this event; you will have better pupils, better clerks and better teachers if you believe in them and go the extra mile for them. Well done!!
Our generous sponsors played a huge role in helping us materialise this event: Your contribution will make a positive difference in the future of this great nation. Many thanks to:

You are waiting for the photos, aren't you?

Thursday, September 16, 2010

ROMAN LAW MOOT I Essential Substantive Content

Course of action I

ACTIO REI VINDICATORIA

ACTIO IN REM:

The aim of a real action was to establish the strength of the parties' claims to legal rights over movable or immovable property (res). Once this had been established, a real action could also be employed to reclaim it from other parties. A claim of ownership of movable or immovable property was also instituted using a real action, but in these circumstances the claim was known as a vindicatio

The purpose of a rei vindicatio was to enforce the right of ownership of a thing. Rei vindicatio was derived from the ius civile, therefore was only available to Roman citizens. The thing in dispute needs to be specified. A plaintiff could not have won a case without specifying the thing in question.

Kinds of Things:

Corpus unitum

Corpus coniunctum

Corpus ex distantibus was not a single thing, but a bundle of independent things, such as a herd of cattle. Cattle were so important in Roman society that Roman jurists developed the regulation on cattle on a full scale. Corpus ex distantibus was the most disputed of the three.

The Actio Publiciana is granted in lieu of a rei vindicatio

USUCAPIO

Original mode of acquisition (as opposed to derivative because the right of ownership is not derived from someone else's right but from fulfillment of the requirements of the law) consisting on the acquisition of ownership of property by using it for a period of time.

Characteristics:

It was a remedy for those who had the intention to transfer the ownership of a thing but did not fulfill the solemnities established in the law (Mancipatio).

Belongs to the Ius civile, so the ownership is obtained ex iure quiritum (Gaius II, 40-42). This means that it only applied for roman citizens who had capacity to acquire ownership (no foreigners, pupils, people under tutelae or people who had suffered maxima or media capitis diminutio).

Requirements:

IUSTA CAUSA: OR IUSTUM TITULUM The possession of the object to be usucapted needed to be originated in a transaction recognized by the civil law, i.e.:

- Sale

- Donation,

- Solution (payment of an obligation),

- Dereliction or abandonment,

- Vindicative legacy

BONA FIDES: or Good Faith means that the object could not have entered the possession of the usucaptor by force (vis), theft (furtum), or deception.

CORPUS: Physical possession of the object.

ANIMUS: intention from the usucaptor of owning the thing –acting as an owner and legitimate possessor indicated this intention.

CONTINUOUS POSSESSION: Not interrupted for the whole period of possession in good faith. Interruption of this possession can be caused by:

Initiation of a rei vindicatoria actionis.

Recognition of someone else's ownership: i.e. by paying rent.

TIME: 2 years for res soli (soil property/real estate), 1 year for other goods (mobile goods)

LONGI TEMPORIS PRAESCRIPTIO:
started in the oriental provinces as a protection of the possessor of good faith. At the end of the classic period was recognized in the whole empire. It granted the possessor a similar protection as the praetorian exception of the usucapio. To obtain this protection, the possession had to be for 10 years if the original owner was in the same province or 20 years if the original owner was in another province. In the Justinian codification, these two modes were mixed, leaving the term usucapio for mobile things and praescriptio for real estate (res immobile).

LONGISSIMI TEMPORIS PRAESCRIPTIO: Only took into account the time, there was no need for iusta causa or bona fides. It was given by Constantine to all possessors. The time requirement was 40years/ 30 years in Justinian times.

Course of Action II

SERVITUDES

Definition

The object of Servitudes is to enable persons other than the owner of a thing to share in the

benefits derivable from the use of that thing, while preserving the interests of the owner as

fully as possible. The ownership is said to ' serve ' (' servit '), i. e. it is cur- tailed, it is not

absolutely free, though, at the same time, its economic effect is not done away with.

On the contrary, as against the servitude, ownership is the dominating right.

Characteristics: Servitudes only  confer on the person entitled certain specific and clearly

defined rights of user ; in the second place, they are inalienable and non- transmissible,

being annexed to a definite subject whose destruction entails the destruction of the right.

 Servitudes may be defined as real rights of user in a res aliena, limited in their nature and

 annexed to a definite given subject. In the case of praedial servitudes, the owner of the land,

for the time being, is the person entitled to the servitude.

Praedial Servitudes.

Praedial servitudes are either ' servitutes praediorum rusticormn,' i. e. servitudes which usually

 occur in favour of a plot of agricultural land, or ' servitutes praediorum urbanorum,' i. e.

servitudes which usually occur in favour of buildings.

Rural Servitudes.

The most important rural servitudes are : the several rights of way (servitus itineris, actus, viae);

 the right of conducting water over another's land (servitus aquaeductus) ; the right of drawing

 water onanother's land (servitus aquae hauriendae).

Modes of Acquisition:

- Mancipatio

- In Iure cessio

- Legacy

- Usucapio/ Longi temporis praescriptio after lex scribonia

- Adjudicatio

- Pacts and Stipulations

- Traditio (postclassical period)

Extinction:

Confusio: nemini res sua servit

Non-exercise of the right (2 yrs classic/ 10yrs postclassical inter presents

20 inter absents)

by bequest of the exemption from the servitude

ACTIO CONFESSORIA

ACTIO IN REM

Servitudes might also be the subjects of Actiones in rem (Dig. 7 6; 8 5). An Actio Confessoria or

Vindicatio Servitutis had for its object the establishing the right to a Servitus, and it could only

be brought by the owner of the dominant land, when it was due to land.

The object of the action was the establishment of the right, damages, and security against future

 disturbance in the exercise of the right; and the action might be not only against the owner of the

servant thing, but against any person who impeded the exercise of the right. The plaintiff had of

course to prove his title to the Servitude


The Actio Negatoria or Vindicatio libertatis, might be brought by the owner of the property

against any person who claimed a Servitude on it. The object was to establish the freedom of

the property from the servitus, for damages, and for security to the owner against future disturbance

in the exercise of his ownership. The plaintiff had of course to prove his ownership and the defendant

to prove his title to the Servitude (Gaius, IV.3; Dig. 8 tit. 5).

Course of Action III

OCCUPATIO

Mode of acquisition where a person seized an object without owner (res nullius)and became the owner of that object.
"res nullius fit primi occupantis".

Characteristics:

One of the ius gentium modes of acquisition of ownership.

Res derelictae:
absolute abandonment from the previous owner is mandatory (physical and intentional), does not apply to lost things or things thrown overboard from a ship in distress.

Wild animals: as long as there was physical control over them: this is the point in dispute

Precious Stones: in a state of nature/ do not confuse with treasures.

Property of the enemy: movable goods obtained in the war or belongings of the republic enemies found in roman soil. The land of the enemy belonged to the State

Islands arising in the sea.