Faculty of Law

European Law School English Language Track

2020 / 2021

Introduction to European Legal History

Course Manual

MET 1005

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CONTENTS

PART 1 – INTRODUCTION

1. Objective ..................................................................................................................................... 5

2. Contents ...................................................................................................................................... 5

3. Modalities of the Course and Teaching Method......................................................................... 5

3.1 Course Plan ............................................................................................................................ 5
3.2 Plenary Meetings................................................................................................................... 6
3.3 Knowledge Clips .................................................................................................................... 6
3.4 Tutorials ................................................................................................................................. 6
3.5 Cali Modules .......................................................................................................................... 7

4. Literature ..................................................................................................................................... 7

5. Assessment .................................................................................................................................. 7
5.1 Assignment 1 - Internal Legal History ................................................................................... 7
5.2 Assignment 2 - External Legal History ................................................................................... 8
5.3 Resit ....................................................................................................................................... 9

6. General Regulations and Recommendations .............................................................................. 9

6.1 Avoid Plagiarism .................................................................................................................... 9
6.2 Classroom Regulations .......................................................................................................... 9
6.3 Regulations for Zoom .......................................................................................................... 10

7. Code of Conduct ........................................................................................................................ 10

7.1 Respect ................................................................................................................................ 10
7.2 Responsibility ...................................................................................................................... 10
7.3 Academic and Scientific Integrity ........................................................................................ 11
7.4 Confidentiality ..................................................................................................................... 11
7.5 Use of ICT Facilities and Social Media ................................................................................. 11
7.6 Legal Community ................................................................................................................. 11
7.7 Enforcement ........................................................................................................................ 11

8. Communication ......................................................................................................................... 12
8.1 Student Portal ..................................................................................................................... 12
8.2 E-mail ................................................................................................................................... 12
8.3 Office Hours (Course Coordinator) ..................................................................................... 12

9. Planning Group .......................................................................................................................... 12

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PART 2 – TUTORIALS

Week 1: Roman Law ...................................................................................................................... 14

1. Introductory Reading ............................................................................................................ 14
2. Tutorial 1: Roman Law in Antiquity ....................................................................................... 20
3. Tutorial 2: Roman Contract Law............................................................................................ 22

Week 2: Reception and Ius Commune .......................................................................................... 24

1. Introductory Reading ............................................................................................................ 24
2. Tutorial 3: Reception and Ius Commune ............................................................................... 26
3. Tutorial 4: Contract law in the period of Reception and Ius Commune ............................... 27

Week 3: Codification ..................................................................................................................... 29

1. Introductory Reading ............................................................................................................ 29
2. Tutorial 5: Codification .......................................................................................................... 31
3. Tutorial 6: Contract Law and Codification............................................................................. 32

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 PART 1
INTRODUCTION

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1. Objective
This course provides an introduction to both the external legal history of Europe and the
internal study of substantive historical legal concepts.

This course introduces the external legal history of Europe, from Roman Antiquity to the
present day. External legal history focuses on law in a broad historical context, including both
the development of legal science and the ‘law in action,’ that is, the practice of law.

The history of specific legal concepts and institutions belongs to the so-called internal or
substantive legal history. In this course, you will also get acquainted with the substantive
dimension of legal history. The planning group has chosen to focus on the historical dimension
of contracts. Aspects of this topic were also focused on in the course on comparative contract
law taught in the second period.

Eventually students will analyse and solve a number of simple cases in their historical context,
applying the knowledge and insights of legal history and the methodology of legal-historical
research gained during the course.

2. Contents
Three major periods in the study of legal history can be discerned for educational purposes: the
Roman law period, the Ius Commune period, and the Codification period. Each week of the
Introduction to European Legal History course, we will focus on one of these periods.

3. Modalities of the Course and Teaching Method

Introduction to European Legal History spreads over the course of teaching period 3.

3.1 Course Plan

Week 1
 Plenary Meeting 1: Monday, 4 January, 15.00-17.00 (via Zoom)
 Tutorial 1: Tuesday, 5 January
 Tutorial 2: Thursday, 7 January

Week 2
 Plenary Meeting 2: Monday, 11 January, 15.00-17.00 (via Zoom)
 Tutorial 3: Tuesday, 12 January
 Tutorial 4: Thursday, 14 January

Week 3
 Plenary Meeting 3: Monday, 18 January, 15.00-17.00 (via Zoom)
 Tutorial 5: Tuesday, 19 January
 Tutorial 6: Thursday, 21 January
 Assignment 1:
o Available as from Friday, 22 January, 08.30
o Deadline on Friday, 22 January, 18.30

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Week 4
 Assignment 2:
o Available as from Friday, 29 January, 13.00
o Deadline on Friday, 29 January, 16.00

3.2 Plenary Meetings

All students are invited to attend three plenary meetings. A lecturer will lead these meetings via
Zoom, aiming to interact with the students. The course will be introduced during the first
plenary meeting. The second plenary meeting will highlight the continuity of law across time, by
offering a brief overview of the contents of the three weeks of the course. The third and final
plenary meeting will focus on contract law, the assignments, and the need to refer to sources.
All meetings will allow for a Q&A session.

3.3 Knowledge Clips

The course offers students the opportunity to gain further knowledge by means of pre-
recorded lectures presented as Knowledge Clips. These clips, available in Student Portal,
concern external legal history and offer necessary support in studying the book by Lesaffer (see
point 4 of this Course Manual). It is a good idea to prepare the assigned paragraphs of Lesaffer
before watching the Knowledge Clips.

Students are expected to watch the relevant Knowledge Clips before the Plenary Meeting and
the first tutorial each week, as indicated below. That preparation will enable students to raise
relevant questions they may have during the different meetings.

Week 1
 Reading: Lesaffer, paragraphs 53-61, 67-78, 84-97, 132-133
 Knowledge Clip 1: Roman Law (Archaic & Pre-Classical)
 Knowledge Clip 2: Roman Law (Classical & Post-Classical)

Week 2
 Reading: Lesaffer, paragraphs 116-122, 214-243, 302-322
 Knowledge Clip 3: Ius Commune (Glossators & Commentators)
 Knowledge Clip 4: Ius Commune (Humanists & Rediscovered Natural Law)

Week 3
 Reading: Lesaffer, paragraphs 1-4, 396-426, 462-471
 Knowledge Clip 5: Codification (Foundation & Expansion)
 Knowledge Clip 6: Codification (Differentiation & Globalization)

3.4 Tutorials
Six tutorials will take place, two every week, during the three weeks of the course. Your
Timetable will tell you which group you are assigned to.

The focus will be on external legal history during the first tutorial of each week. This includes
topics from legal practice, such as judicial procedure and the study of primary source texts. In
the second tutorial of each week our attention will be on the substantive legal rules in the

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context of the law of contract. See Part 2 of this Course Manual for texts that should be read
and questions that should be answered prior to the tutorials.

It is expected that you will come prepared. There is little point to join a tutorial when being
unprepared. Your tutor therefore has the right to refuse to allow you to participate if you are
insufficiently prepared.

3.5 Cali Modules

Four Cali Modules have been made available in Student Portal. Along with the Knowledge Clips,
these modules are a supplemental study aid for external legal history. The modules contain
questions as well as texts, links, and images. Students can access the Cali Modules at the time
that best suits them, keeping in mind the material of module 1 will, primarily, be covered in
week 1 and the material of modules 2 and 3 will be covered primarily in week 2. Week 3 will be
devoted to the material of module 4.

In the opinion of the planning group, the Cali Modules are essential to the successful
completion of this course.

4. Literature
 R. Lesaffer, European Legal History. A Cultural and Political Perspective. Cambridge:
Cambridge University Press, 2009 (or later edition).
o Students should note that the readings from Lesaffer refer to paragraphs and
not to pages in the book.
 Selection of readings in Reference List (available for free in Student Portal)
o Follow: Canvas/Intro to European Legal History/Resources/Reference List
 Cali Modules (available for free in Student Portal).
o Follow: Canvas/Intro to European Legal History/Modules/Cali Modules

5. Assessment
Students in this course are assessed on the basis of two individual assignments. Assignment 1
deals with internal legal history, and takes place during the course; while Assignment 2 deals
with external legal history, and takes place during exam week.

5.1 Assignment 1 - Internal Legal History

 Availability and Deadline
o Assignment 1 will be available for you to download from Student Portal, starting
on Friday, 22 January, at 08.30 (Maastricht time).
 nb, students will be able to start to download Assignment 1 already at
08.20.
o Assignment 1 must be submitted in Student Portal, before Friday, 22 January, at
18.30 (Maastricht time).
 Weight
o This assignment represents 40% of the final grade in this course.
o This assignment will be graded on a scale of 0-10.

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  General Instructions
o The total amount of words for this assignment is 1000 words, excluding
footnotes and bibliography.
o Students must submit this assignment in MS Word (.doc/.docx) format only.
Other types of files will not be accepted.
 Problems caused by the fact that documents have been converted to MS
Word from other text processing software are the student’s
responsibility.
o The MS Word-document should be named: ID number Assignment 1
 eg, ID6132465 Assignment 1
o In the header of the first page of your assignment you should mention:
 Your ID number;
 The number of the assignment (ie, 1);
 The number of words used.
o Late submissions will not be accepted. Submissions sent by e-mail to the course
coordinator before the deadline will also be considered, but only if it is
demonstrated that it was not possible to submit this assignment before the
deadline via Student Portal.
 It is not necessary to submit this assignment in paper form.
o This assignment is to be completed individually by each student. Students must
avoid plagiarism and therefore are encouraged to work autonomously in this
assignment, not sharing ideas or information.
 Specific Instructions
o Further instructions will be available in the cover page of Assignment 1.

5.2 Assignment 2 - External Legal History

 Availability and Deadline
o Assignment 2 will be available for you to download from Student Portal, starting
on Friday, 29 January, at 13.00 (Maastricht time).
 nb, students will be able to start to download Assignment 2 already at
12.50.
o Assignment 2 must be submitted in Student Portal, before Friday, 29 January, at
16.00 (Maastricht time).
 Weight
o This assignment represents 60% of the final grade in this course.
o This assignment will be graded on a scale of 0-10.
 General Instructions
o The total amount of words for this assignment is 1200 words, excluding
footnotes and bibliography.
o Students must submit this assignment in MS Word (.doc/.docx) format only.
Other types of files will not be accepted.
 Problems caused by the fact that documents have been converted to MS
Word from other text processing software are the student’s
responsibility.
o The MS Word-document should be named: ID number Assignment 2
 eg, ID6132465 Assignment 2

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 o In the header of the first page of your assignment you should mention:
 Your ID number;
 The number of the assignment (ie, 2);
 The number of words used.
o Late submissions will not be accepted. Submissions sent by e-mail to the course
coordinator before the deadline will also be considered, but only if it is
demonstrated that it was not possible to submit this assignment before the
deadline via Student Portal.
 It is not necessary to submit this assignment in paper form.
o This assignment is to be completed individually by each student. Students must
avoid plagiarism and therefore are encouraged to work autonomously in this
assignment, not sharing ideas or information.
 Specific Instructions
o Further instructions will be available in the cover page of Assignment 2.

5.3 Resit
Students who fail the course may participate in a resit at the end of course period 4. Further
information on the resit will be made available in Student Portal.

6. General Regulations and Recommendations

6.1 Avoid Plagiarism

All assignments are automatically subjected to a plagiarism check. If this check shows that there
is too much similarity between the work of two or more students, these students will be
referred to the Examination Committee for fraud. In addition, submissions will be subject to the
usual control for plagiarism with respect to source material.

At the discretion of the tutor who graded the assignment, a student may be invited to a short
meeting with the grader solely in order to confirm that the assignment submitted was written
by the student. If a student is invited to such a meeting, attendance is mandatory.

6.2 Classroom Regulations

In order to facilitate a well-structured, positive environment in the classroom, we expect our
students to abide by the following rules:

 Starting times for meetings are just that. At the discretion of the tutor, latecomers
may not be allowed to join a meeting.
 Students are required to have studied the Course Manual and preparatory
materials before meetings.
 The tutor announces the end of meetings. Students are expected not to leave a
meeting until then, even if this is a couple of minutes after the scheduled end of
the meeting.
 Whether or not there is a short break during the meeting is at the discretion of the
tutor.

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6.3 Regulations for Zoom
This course uses the Zoom platform for plenary meetings and tutorials.

Tutorials will be offered in a blended manner, with up to five students meeting in a tutorial
room at the same time. The schedule of the blended teaching will be arranged during the first
and online tutorial.

Students are expected to abide by the following rules:

 Access to Zoom meetings will be possible already 10 minutes before the starting
time of each tutorial. That time prior to the formal start of the meeting allows
students to test their equipment and to be ready to start on time. Tutorials will
start punctually.
 Students must have their cameras on at all times.
 Microphones should be muted when a student is not speaking to the entire group,
to eliminate background noises.
 It is not allowed to eat or smoke during Zoom meetings.
 It is not allowed to record Zoom meetings.
 Students should raise their hands if they wish to address the entire group,
either with the Zoom function or to the camera.
 Students are allowed to use the chat as a tool to communicate with the entire
group, or to ask questions to the tutor.

7. Code of Conduct
The Faculty of Law provides top quality challenging and rewarding education. It seeks to do
so in an exceptionally inspiring environment for both students and staff. In order to create
such a safe study and working environment the following code of conduct is established that
applies to all students enrolled at the Faculty of law regarding activities relating to their
course of study:

7.1 Respect
The Faculty seeks to provide an inclusive, diverse non-hierarchical learning community that
fosters both individual and collective learning and growth. This community is based on
mutual respect. Students shall respect ethnic, sexual, religious and cultural diversity in the
academic community. Students expressly engage in a collaborative and respectful attitude
towards fellow students, staff members and all other professionals encountered during the
course of the study.

Students shall at all times refrain from the use of physical, verbal, psychological violence or
violence of any other kind in their relationships with fellow students and members of staff.

7.2 Responsibility
The student is an active member of the student community of Maastricht University. This
expressly includes being an active participant in education that is in line with the UM
teaching philosophy and refraining from activities that undermine that philosophy.

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The student approaches the educational experience with an open mind and broad interest
and takes in learning opportunities that present themselves in an active and constructive
manner.

The student strives for improvement, is able to incorporate criticism and is able to provide
and receive feedback. Students are willing and able to reflect critically on their own thoughts
and behaviour.

7.3 Academic and Scientific Integrity

The student refrains from any form of fraud in all study related activities. Students only
connect their name to work that they have effectively contributed to. The student recognises
the contribution of other students in group work.

Students represent themselves as students in external contacts and will not accept
responsibilities that supersede their developing knowledge and competences.

This article applies without prejudice to the Code of Conduct for Scientific Integrity as
adopted by the European Science Foundation and the Nederlandse Gedragscode
Wetenschapsbeoefening as adopted by the VSNU.

7.4 Confidentiality
Students expressly accept the obligation to treat any file, case or other documentation or
information that they are confronted with in the course of their study as confidential. The
student respects, at any time, the privacy of individuals concerned, including fellow students
and staff members.

7.5 Use of ICT Facilities and Social Media

Students conform to the UM rules on acceptable use of ICT facilities. Students expressly
conform to a responsible use of social media, including but not limited to matters relating to
points 1 and 4 of this code of conduct. Students respect the intellectual property of the UM.
It is expressly prohibited for students to place images or other personal information of fellow
students and staff members on social media or to publish such information in any other
form.

7.6 Legal Community

Students understand and accept the fact that they are part of the legal professional
community and therefore conform to the ethical, legal, procedural and other standards that
are commonly shared in the legal professional world. Students conform to these standards in
their presence, behaviour and use of language.

7.7 Enforcement
The student will abide by the norms that follow from this code as described above and will
fully accept the consequences of not doing so. Those consequences may include, but are not
limited to, disciplinary proceedings that may result in measures described in articles 7.42a
and 7.57h WHW and the UM Enrolment Provision, namely denying access to buildings,
premises and/or facilities of the UM or ending the enrolment of the student concerned.
Enforcement of article 7.57h WHW will take place in accordance with the rules laid down in

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the Algemene huisregels en ordemaatregelen van de Universiteit Maastricht.

8. Communication
In order to make this course work and to make it pleasant and beneficial for all, communication
is crucial. As a first rule, do not hesitate to address questions to your tutor, the course
coordinator, and each other! All tutors and students are generally easily approachable and
willing to help. This does not mean that you can spare yourself any effort of finding information
yourself. It is very important to observe and use the official communication channels of the
course: Student Portal.

8.1 Student Portal

The official communication channel is Student Portal. Students can access Student Portal with
their UM login and password. Make sure to check the Introduction to European Legal History
page on Student Portal regularly (every day). This way, you will not miss any important
announcements. Please note that Facebook is NOT an official communication channel of the
course.

In addition to this Course Manual, further information will be provided throughout the course
via announcements on Student Portal.

8.2 E-mail
Every student has a UM e-mail account. When communicating with tutors or the university by
mail, make sure to use this UM account. E-Mails from other accounts may not always reach us,
as the system may mark it as spam.
Be polite when writing e-mails. Tutors and the course coordinator do their utter best to answer
e-mails quickly. However, since they are people, they may not always be able to! Also, please
indicate your ID number and tutorial group in all your e-mails.

8.3 Office Hours (Course Coordinator)

In case you wish to talk to the course coordinator personally (about any issue or question
relating to the course), please use the open office hour of the coordinator. Open office hours
are held every Monday from 8:30 to 10:00. You should follow this link:
https://maastrichtuniversity.zoom.us/my/agustinparise

9. Planning Group

 C.H. van Rhee

 J. Oosterhuis
 A. Parise (course coordinator)

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 PART 2
TUTORIALS

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WEEK 1: ROMAN LAW

1. Introductory Reading
The history of the city of Rome and the Roman Empire is divided into three main periods, based
on the prevailing polity: Kingdom, Republic, and Empire. Each of these main periods is
historically subdivided into smaller periods of importance. Three of these periods are of
particular interest to the development of law: the Later Republic, the Early Empire, and the
reign of the East-Roman Emperor Justinian.

Kingdom
Rome started as a monarchy with a rex (king) at the helm of the state. The king had imperium
(state power). He was advised by a council of experienced, elderly men, the Senatus. According
to the Romans themselves, the Kingdom came into being as a result of the mythical foundation
of the city by the legendary Romulus in 753 BC. It came to an end with the mythical, violent
ousting of the last king, Tarquinius Superbus in 510 or 509 BC.

The judicial system revolved around the king and the collegium of high priests in the temples.
Innovations in the field of law were a cooperative effort of rex, Senatus and collegium. Very
little is known about the legal system of this period. Therefore, this period does not warrant a
great deal of attention in an introduction to legal history.

Republic
The polity of the republic is characterized by a dual, chosen leadership. The chief magistrates
(state functionaries) were the two consules, chosen by the general people’s assembly for a one-
year term of office. They shared imperium, which encompassed both military and political state
power. Later a small number of lesser magistrates also acquired imperium, together with the
consuls. Of these, the praetor urbanus and the praetor peregrinus are of special importance to
students of law. These lesser magistrates were chosen by the people’s assembly as well, and
also for a one-year term of office.

It is of great significance that the consuls and the lesser magistrates all had full imperium.
According to longstanding custom, the various duties were assigned to specific functionaries
within the state, and all had the state power to execute these duties. On the positive side, this
meant that no one magistratus had absolute power. On the down side, this meant that
magistrates who did not get along could nullify each other’s efficacy and render any executive
measure void by issuing a counter measure.

Praetor
The Later Roman Republic begins around 350 BC and ends, of course, with the foundation of
the Empire. This period more or less coincides with what is called the pre-classical period of
Roman law. During this time a number of important innovations in law took shape that
distinguish the Roman legal system from other contemporary legal systems. It is these
innovations that make Roman law the mother system of our modern continental legal systems.
These innovations were mostly introduced by a long line of praetores.

The pre-classical period begins with the establishment of the office of praetor; according to the
Romans themselves this happened around 367 BC. This praetor had full imperium, just like the

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consuls which were his senior colleagues. As their collega minor he was, however, subjected to
their right of veto. His main duty was iurisdictio, the dispensation of justice.

In 242 BC a second praetor was created. The two praetores both administered iurisdictio, but
each in their own field. One praetor dispensed justice in all cases that solely concerned Roman
citizens. He was called praetor urbanus (city praetor). The other magistrate, called praetor
peregrinus or foreigners’ praetor, had jurisdiction in all other cases, i.e. in all cases where both
parties were peregrini or foreigners, or where a peregrinus and a Roman citizen litigated against
each other. We will discuss the praetor urbanus, but not the praetor peregrinus, unless stated
otherwise.

Judicial procedure
The Romans have known three types of legal procedure. These evolved one after the other
over a long period of time. During extended periods they also existed next to each other. The
oldest form is the procedure per legis actionem. It was initiated by a legis actio, a formal
remedy to be pronounced verbally (the formula was laid down in sacred procedural laws). This
procedural system in all probability found its origin in the period of the Kingdom.

Centuries later, in the pre-classical period, the praetor developed the procedure per formulam,
where the actiones were no longer fixed by formal laws and pronounced verbally, but appeared
as blanket formulae listed in the praetor’s edict.

The youngest form is that of the cognitio extraordinaria, which came into being in the Early
Empire. It is this form of judicial process that eventually survived in the Later Roman Empire as
the only form of procedure.

Procedure per legis actionem and procedure per formulam

Litigation per legis actionem and per formulam had many common features. Both procedures
consisted of two phases. In the first phase a magistratus (or in early times, perhaps even until
the 3rd century BC, a pontifex or high priest) determined the formal legal boundaries of the
case. If the presiding magistratus decided that the claim had legal merits, the claimant would
gain access to the second phase. In that second phase a lay judge, a iudex, applied the facts of
the case to the legal rules established in the first phase by the magistratus.

First phase
In order to gain admission to the first phase, the Romans needed a legal remedy. The usual
remedy was called actio. Just as in other antique cultures surrounding the Roman state, an
actio was devised with one specific set of facts in mind. If a new situation arose, where the facts
were (slightly) different, the Romans could not extend the actio through extensive
interpretation to cover the new facts. A new actio had to be conceived for the new situation.

In the period of litigation per legis actionem the actiones were laid down in a small number of
procedural statutes. These statutes, the actionem leges, were sacred in nature. This explains
the important role of the Roman priesthood in the early administration of the law. In the
procedural statutes, the exact formulas for the summoning of a defendant to trial were set out.
These sacred formulas had to be pronounced verbally, with the details of the case inserted into
the blank spaces left open in the formula for that purpose. Should the claimant make a mistake

15
against the official wording of the actio, or should he trip over his tongue, then he was
apparently not sanctioned by the gods to pursue his claim. As a result, he would not be
admitted to the second phase of the lawsuit. It is possible that at first it was the king who
presided over this first phase; later this was the task of the high priests, next the consuls and
finally the praetor.

It was the praetor who started to conceive and record formulas for new actiones, outside the
actionem leges. These new formulas could be of three types: to execute a new law
promulgated by the people’s assembly, to modify the execution of existing legal rules or
customs when social change made this necessary, or to improve on a legal rule or custom, also
when social change demanded this.

Each praetor issued a programme of actiones and formulae he would uphold during his term of
office. This programme was called an edict. Other than the sacred formulas of the legis
actiones, these formulae could be presented in writing. As a result, the law lost part of its
sacred character, and made it possible for nervous claimants, stammerers and the mute to
initiate legal proceedings.

The new praetorian actiones and formulae existed alongside the old legis actiones; they did not
replace them. Any legal problem between two Roman citizens that fitted one of the old verbal
actiones could only lead to a trial through the pronunciation of the archaic formula, even
though the presiding state official was now the praetor. Only very slowly did the old legis
actiones fade away. Not until some time into the Empire was the last legis actio replaced by
more ‘modern’ remedies.

The chosen actio had to fit the legal problem; therefore the praetor would deny the claimant
admission to the second phase if the wrong actio was chosen. When the right actio was chosen,
the praetor would assess the claim in order to determine whether it had sufficient legal merit. If
that was the case, a litis contestatio or procedural agreement would have to be reached
between the litigants. In this document the parties, aided and guided by the praetor,
hammered out the questions the iudex would have to answer, thereby setting the legal
boundaries of their dispute. The litis contestatio also contained the litis aestimatio, the
claimant’s formal estimate of the value of the claim. Should this value be insufficiently clear in
the initial stages of the lawsuit, the litis aestimatio would be fixed as quanti ea res est, i.e. at a
value that would be determined later. The procedural agreement would be the basis of the
second phase of the trial.

Second phase
The iudex who decided the factual merits of the case, based on the litis contestatio, was not a
professional judge. For each trial a new iudex was appointed; once a person had been iudex, he
could not be appointed again for the next seven years. The appointment of a iudex shows
similarities with the appointment of jury members in some modern countries, such as England,
Belgium or the United States of America.

The litis contestatio was the formal legal basis of the proceedings in the second stage. The iudex
was not allowed to venture outside the legal boundaries laid down in this document. His only
task was to examine the facts of the case in the light of the litis contestatio, through evidence

16
and testimonies brought before him by the parties, and come to a conclusion on whether the
facts led to an award of the litis aestimatio or an acquittal of the defendant. This was no
sinecure, nor was knowledge of the legal rules immaterial in this phase. It was in this stage that
the applicable legal rules had to be interpreted. The complexity of this task meant that the
iudex would ask advice from people more experienced in the law and its interpretation than
him. These experts, though not yet as professional lawyers, were known as iurisconsulti (those
who could be consulted on a legal question) or iurisperiti (those experienced in matters of law).
Only much later, in the classical period of Roman law, did a professional class of jurists and
lawyers evolve from these iurisperiti.

When the facts had become clear to the iudex, he either acquitted the defendant when he
ruled that the claim was not sufficiently proven, or he awarded the claimant the litis aestimatio.
Was the litis aestimatio set at a specific amount of money, then he could only award that
amount, not less and not more. Was the amount still uncertain (quanti ea res est), then the
iudex would have to fix the amount. In case the actio also allowed the collection of a fine, as
happened in mixed actions, he set the amount of the fine. This happened, for example, in case
of an actio furti, the action for theft, where the convicted thief had to pay the value of the
stolen object as well as a fine, which would under extreme circumstances amount to eight
times the litis aestimatio.

If the iudex made a wrong decision, either because he had not listened carefully enough to the
iurisperiti or because he was bribed, he could be targeted with a special actio by the party who
had lost the case. Should it become clear that the iudex had indeed done a bad job, then he
would have to pay the original losing party, i.e. the claimant in the new trial, a sum of money of
two up to four times the amount lost by that party in the original proceedings.

Appeal
Litigation per legis actionem and per formulam did not allow for an appeal to a higher judge,
simply because there was no higher judge. When the iudex had denied the claim, there was no
recourse. If the convicted defendant did not want to pay the litis aestimatio, the claimant could
once again go to the praetor and bring a specialized actio (the actio of the already decided
case). A new iudex would then be appointed to look at the case again. Should this new iudex
also convict the defendant, then the defendant had to pay the claimant a multiple of the
original litis aestimatio. Consent to the claimant to take justice into his own hands and collect
the sum owed, by force if necessary, was part of this second conviction.

Empire
The Empire saw Rome emerging again as a monarchy. For the development of the law the
period of the Early Empire is of special importance. This period is further divided into the
Principate and the Dominate. The Principate is a period of transition. The emperor does not as
yet have absolute power and is sometimes thwarted in his objectives by old Republican
sentiments in the Senate. The Dominate starts when the emperors have consolidated their
supreme power. From that moment, the old Republican public offices are nothing more than
honorary positions without any actual power. This holds true for the praetor as well, as
becomes clear from the establishment of a consolidated and unalterable text for the praetorian
edict (the Eternal Edict) by the jurist Salvius Iulianus (Julian) at the orders of the emperor

17
Hadrian. The praetor does not have the power to conceive new formulae anymore, although he
went on to preside over the first phase of legal proceedings in litigation per formulam.

The period of the Early Empire coincides for a large part with the classical period of Roman law.
It covers the whole Principate and the first part of the Dominate. There is some controversy
about when the classical period of Roman law ended. Some scholars have it coincide with the
death of the jurist Papinian in 212 AD, some with the death of Ulpian in 223 AD. Many Dutch
scholars see the adoption of the Codex Hermogenianus in 295 as a more logical final date, since
Aurelius Hermogenianus was the last jurist to be incorporated into Justinian’s Digest. The
period of the Early Empire ends with the division of the Empire into a Western and an Eastern
half.

The classical period of Roman law witnessed a systemization of the law. It also saw a further
refinement of legal concepts and ideas conceived in the pre-classical period. This is the time
when the Roman law was shaped into the form which lies at the basis of modern continental
civil law. It is also the time of the great dogmatic jurists, of whom Papinian is still undoubtedly
the greatest.

Procedure
One area the emperors wanted to control is the law. They were especially interested in gaining
control of litigation, which is where in Roman law, just as in the Common Law, innovations and
changes are effected. The emperor did not interfere with the jurisdiction of the praetor, but
created the possibility of a direct appeal to the emperor in cases where the law was unclear. In
these cases, an imperial civil servant assessed the legal merits and the facts of the case. On the
basis of his assessment, he pronounced judgment. Since unlike litigation initiated before the
praetor, this type of procedure only knew one phase, and because it was originally rarely used,
the Romans called it the cognitio extraordinaria, the hearing of a case outside the ordinary legal
order. This type of litigation was modelled according to the judicial process in the provinciae,
outside Rome. There, the governors and their clerical staff had been judging cases in a single
stage procedure from early times.

The civil servants who administered the cognitio were originally chosen from the iurisperiti,
those who had practical experience in law. It is from this group that the professional jurists
originated, lawyers who were formally trained in law before they started their career in legal
practice. Gaius, the well-known jurist from the 2nd century AD, was a teacher at one of the new
law schools.

Slowly the cognitio became more popular. Parties who hoped that a standard interpretation of
legal rules would be changed in their favour, usually brought cases before the emperor instead
of the praetor, even in cases where no lacunae in the law could be discerned. Similar cases
arising afterwards would also be litigated there. In this way the balance finally shifted from
litigation per formulam to the cognitio extraordinaria. It became the ordinary procedure,
whereas litigation per formulam became a quaint relic from the past. When litigation per
formulam disappeared is not clear, but the usual estimate is that this happened somewhere in
the 4th century.

18
Appeal
In the Roman Republic, the governors of the provinces were to a certain extent independent
from the central government in Rome. The emperors, however, aimed at centralizing the
administration. This can also be seen in the administration of justice: parties could appeal
directly to the emperor from a provincial judicial decision. An example is the case of the apostle
Paul, who appealed to the emperor when the governor of Judea had sentenced him to capital
punishment. On the basis of such cases, a general right to re-examination of judgments by
superior judges evolved.

Emperor Justinian
The last period in the development of Roman law in Antiquity – so far as relevant for later law
in many parts of Europe – was the reign of the emperor Justinian (527-565 AD). The importance
of this period may be found in Justinian’s legislation (Codex, Digest, Institutes), in which much
classical Roman law was preserved and which became the basis for the Ius Commune in
Medieval continental Europe. Together with part of Justinian’s Novellae (new statutes
promulgated by Justinian and not incorporated into his Codex), the Lombardian libri feudorum
(feudal law) and the treatises on private international law of Bartolus and other jurists, this
legislation formed the Corpus Iuris Civilis in its medieval guise.

19
2. Tutorial 1: Roman Law in Antiquity

Literature:
 R. Lesaffer, European Legal History, paragraphs 53-61, 67-78, 84-97, 132-133.
 Cali Module 1.

Texts:
 Text 01 Feenstra and Ahsmann, text no. 4 (p. 40).

Report on your findings on all tasks below in a short essay, not exceeding the maximum
number of words, indicated with each task. Please use internet sources and/or UM Library
holdings, when Lesaffer is silent on a subject.

Task 1, Territory/Demography (150 words max)

Research of a legal rule’s historical roots requires studying the general social-historical context
within which the rule was given form or functioned. This requires precision: being a hundred
years ‘off’ almost always leads to incorrect descriptions.

Let us suppose the case under discussion is placed in Paris in 1715. If so, a totally wrong picture
is painted if you were to assert that this is the era of the French Revolution. That revolution did
not take place until 1789, while the year of the researched case saw the death of Louis XIV, le
Roi Soleil, the most absolute French monarch of all times.

Task: Suppose, you have to write an essay on Marcus Tullius Cicero as lawyer and statesman. To
that end, it is important for you to know exactly how things stood in Rome in the years 64-62
BC. Find out what form of government Rome had in those days and who stood at the helm of
the Roman state; what territory was encompassed by the Roman state in those days; look into
the structure of Roman society, the economical state of affairs, the demographic structure of
the populace and possible social unrest.

Task 2, Jurisprudence (100 words max)

Your research not only requires a general background, but also a good insight into the state of
legal science in the period under scrutiny. Just as with Task 1, you cannot allow yourself to stray
too far from that year, but have to be precise. Developments important for the situation in the
appointed period can and should be incorporated, even though their origin might lie some
years or even decades before the case. Developments of later years, even if only by a few years,
cannot be taken into account. At most, roots of these future developments, present in the
researched timeframe, can be indicated. The reason later developments cannot be
incorporated is that they will only distort your view on the researched timeframe, instead of
clarifying it.

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

20
Task 3, Legal Developments (100 words max)
Original texts by Roman jurists can help understand the developing legal interpretation of the
researched legal concept. To understand these texts, you need to know more about the
authors of these texts and the jurists mentioned in the texts.

Task: Read text 4 from Text 01 Feenstra and Ahsmann, p. 40 (D.50,17,23). Find out what is
known about the author of this fragment and the two jurists he mentions. When did they live,
is something known about their family background and social status? What does the presence
of the other jurists tell you about the temporal development of the law?

Task 4, Jurisdiction (100 words max)

To ascertain the manner in which a case was solved at a certain point in time, it is inescapable
that we will have to know about the judicial process of that time. This is especially true when
the historical procedure is nothing like our modern procedure, since not knowing will hinder
our understanding of the way the legal rule functioned.

To us, it is more than passing strange that legal subjects should have to choose between various
types of trial. Yet just that is the case at several instances in the Roman law period. An even
more complicated situation of different judicial processes and court proceedings existing next
to each other will present itself next week, when we are looking into the period of Ius
Commune.

Task: You are legal adviser in a case situated in 167 AD. The legal problem that lies at the core
of the case has some aspects that have never before occurred. You, as the legal adviser, have to
decide which judicial process is most advantageous to your client. To that end, you have to
compare the praetor and the procedure per formulam to the functionaries of the imperial
chancery and the cognitio extraordinaria.

21
3. Tutorial 2: Roman Contract Law

Literature:
 Text 01 Feenstra and Ahsmann, pp. 7, 9-10, 15-17, 29-30, 33-34.
 Text 02, B. Nicholas, An Introduction to Roman Law. Oxford: OUP, 1962, pp. 158-167.
 Text 03, A. Borkowski & P. du Plessis, Textbook on Roman Law. Oxford: OUP, 2005, pp. 255-
258.
 Text 04, Types of Contractus.

Texts:
 Text 01 Feenstra and Ahsmann, texts, nos. 2, 3, 5, 7, 9 (p. 39 ff).

The focus of this tutorial is the history of the concept of contract in Roman law in Antiquity.
Roman law has a long history of development. Although according to legend, Rome was
founded in 753 BC, our knowledge of Roman law dates back roughly to the promulgation of the
Law of the Twelve Tables in 450 BC. We will study the development of Roman law from 450 BC
until its ‘codification’ by the emperor Justinian (who effectively ruled over the Eastern Empire,
also referred to as the Byzantine Empire) in the 6th century AD.

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 AD and the 6th century Corpus Iuris Civilis of the Emperor Justinian. We
will also devote some attention to the fate of Roman law in the Western Empire, which, in
Emperor Justinian's time, was still a part of the Roman Empire, though often in name only.

This week, you will discover that law is a dynamic phenomenon. It reacts to developments in
society and is part of what defines a particular society. Studying history of law is necessary to
understand the process of how and why a particular legal system developed its specific
characteristics. To illustrate this, in this tutorial we will attempt to place the development of
Roman contract law in its historical and social context.

In so doing, we hope to deepen your insight in the importance of ‘external legal history’ (the
central focus in Lesaffer’s book, in the lectures and in the online Cali modules) for the
development of specific legal concepts and institutions. To help you acquiring the relevant
knowledge, we recommend that first and foremost, you place every primary text treated in this
course in its appropriate historical/legal-historical framework (Task 1 below).

After having completed Task 1, you are requested to provide a legal analysis of the cases listed
below (Task 2). You are requested to argue from the position of a jurist of the period in which
the case is situated.

Please bring your written answers to the tutorial.

22
Task 1
State for the texts nos. 2, 3, 5, 7, 9 from Text 01 Feenstra and Ahsmann:
- Its source and what type of source this is.
- The moment the text was written. Please note that some texts were adapted or compiled
into a collection of texts long after they were first written. In such cases, you must state
both the period from which the text originates and the period of its re-use. Also indicate
whether any changes were made to the original text.
- The author’s identity and some information on this author. Examples: When did the author
live? What did he write?

Task 2
Study the literature prescribed for this tutorial and analyse the five cases given below.
Determine the contract applicable to each case and describe the category into which that
contract falls. Please mention the sources (texts) on which you base your answer. If applicable,
discuss changes in the law.

1. (Byzantium, 550 AD) Marcus, an impoverished Roman noble, has invited some senators to
his home for dinner. He borrows some silver platters from his friend Antonius to serve the
meal on. Antonius gives him the platters, on the condition that Marcus will return them one
week later.

2. (Byzantium, 550 AD) 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. (Byzantium, 550 AD) Marcus is in need of money. He wants to buy a new toga. He borrows
the money from Brutus. Brutus wants Marcus to pay interest.

4. (Byzantium, 550 AD) Brutus rents a villa in Campania for the summer holidays. However, a
month before his holidays start, his wife dies and therefore he does not want the villa
anymore.

5. (Byzantium, 550 AD) Marcus wants to buy a horse from Antonius, but he has no cash.
Therefore, he offers Antonius a valuable statue instead of money. Antonius accepts.

Task 3
Discuss:
1. Should, according to classical Roman law, all agreements be viewed as contracts?

2. What is the Clausula rebus sic stantibus? Is it a concept of Roman law?

3. Discuss the concept of laesio enormis and its meaning in Roman law.

23
WEEK 2: RECEPTION AND IUS COMMUNE

1. Introductory Reading
The second week of the course focuses on the Middle Ages (6th -15th centuries) and the Early
Modern Period (16th -18th centuries). This period is crucial to the development of law, legal
science and legal practice. It was a period in which legal systems existed next to each other
(plurality of legal systems), just as jurisdictions existed alongside each other (plurality of
jurisdictions). This co-existence influenced the law as it was applied by the courts.

Plurality of legal systems

In medieval Western Europe it was normal for more than one legal system to exist next to
another at the same time. One could, first of all, distinguish indigenous customary law that
originated from the Germanic tribal laws of the 4th - 8th centuries. Also, from the 4th century the
law of the Church, the canon law, was developed. And thirdly, there was Roman law:
rediscovered in the 11th century, studied by Glossators (11th-13th centuries) and Commentators
(14th-15th centuries) and received into the other two legal systems as a subsidiary body of law.
This meant that legal rules from Roman law were accepted into the other legal systems as
being part of them.

In the Early Modern period, Roman law was studied by using new scholarly methods (Humanist
Jurisprudence). This engendered an interest in a systematic classification of the law. With the
systematization of Roman law as an example, the new Humanist method was then applied to
the customary laws of many European regions and countries. This meant that these customary
legal systems were systemized and recorded in writing, often for the first time in history. They
took from the learned laws (Roman and canon law) various legal rules and concepts in order to
fill the lacunae that had become apparent.

The written and systemized customary law, with additions from the learned laws, became
known as ius proprium, a specific body of law for a specific area. These iura propria are a first
step to the introduction of national codifications which are the subject of the third week of this
course.

Plurality of jurisdictions
The plurality of legal systems of the Middle Ages is reflected by the plurality of jurisdictions of
that period. Indigenous customary laws were applied by specific courts such as the aldermens’
courts, both in towns and rural areas. In addition, there were feudal courts where the judges
were taken from the local liege and his vassals, who were competent to deal with feudal
matters. The canon law, the law of the Church, was applied in the ecclesiastical courts, such as
the episcopal officialates. These courts claimed a wide, almost general jurisdiction over every
member of the Church, which meant that practically everyone was subject to these courts, at
least until the onset of the Reformation.

Next to these fora, a new type of court developed from the second half of the 14 th century, a
court that preferred to apply the received Roman law. It developed through specialization in
the sovereign’s administrative council and branched out from there. This type of superior court
– an example are the French Parlements - often served as court of appeal, e.g. being competent
to reconsider judgments of the aldermens’ courts. In the 16 th century the judgments of this new

24
type of court became the object of legal studies. This contributed also to the development of a
ius proprium.

Depending on whether litigation took place before an urban or rural aldermens’ court, a feudal
court, an ecclesiastical court or the sovereign’s superior court, different sources of law were
relevant. This may be illustrated with an example.

In medieval and early modern times, the town of Maastricht was a Rijksstad, i.e. a town
belonging directly to the Holy Roman Empire. The town was jointly administered by two
sovereigns, the Duke of Brabant and the Prince-Bishop of Liège.

Maastricht was therefore subject to several jurisdictions. There was a High Court of the Duke of
Brabant, which consisted of the High Sheriff and the aldermen. This court had jurisdiction in
criminal and civil matters concerning the citizens of Brabant in Maastricht. Then the Prince-
Bishop had his own High Court, competent to deal with the Liegois citizens of Maastricht. There
was also the Liegois episcopal officialate, an ecclesiastical court. Halfway the 15 th century, one
could appeal from judgments of the High Court of the Duke of Brabant to a modern superior
court, the Council of Brabant, which had its seat in Brussels. At the end of the 15 th century, the
Reichskammergericht, the superior court of the Holy Roman Empire, was added as an available
jurisdiction.

In the 16th century, appeals from Maastricht that had formerly been filed at the Council of
Brabant or the Reichskammergericht, were redirected to a court of appeal in the town itself, i.e.
the collegium of Commissarissen-Deciseurs. This and the other Maastricht Courts applied
Maastricht customary law, which was recorded in the 1380 Statutes of the town. The Council of
Brabant and the Reichskammergericht applied received Roman law, whereas the Liegois
episcopal officialate applied canon law.

25
2. Tutorial 3: Reception and Ius Commune

Literature:
 R. Lesaffer, European Legal History, paragraphs 116-122, 214-243, 302-322.
 Cali Modules 2 and 3.

Report on your findings on all tasks below in a short essay, not exceeding the maximum
number of words, indicated with each task. Please use internet sources and/or UM Library
holdings, when Lesaffer is silent on a subject.

Task 1, Jurisprudence (100 words max)

Discuss the Glossa Ordinaria, also called the Accursian Gloss. At what time did it originate, what
where its form and content and what was its influence on the development of legal science?

Task 2, Jurisprudence (100 words max)

Suppose that your research of a historical case from 1538 shows that the lawyers in that case
consulted a number of famous jurists of that period. Some of these jurists were adherents of
the mos italicus, some of them were in favour of the mos gallicus. Discuss two jurists that could
have been consulted, one from each legal method. Indicate for each of them their importance
for the development of jurisprudence. Do not forget to clarify what both legal methods
entailed!

Task 3, Jurisprudence (150 words max)

In the 17th century the ius naturale was ‘rediscovered’. Discuss how the ius naturale developed
in the years 1550-1750, particularly taking into account its relation to Roman law and
customary law, Christianity, and enlightened absolutism.

Task 4, Sources of Law (150 words max)

Describe the legal sources of France around 1690. Define these sources as to the area where
they had legal validity and the origin of that legal validity. Discuss the (seeming?) antithesis
between the pays du droit écrit and the pays du droit coutumier.

26
3. Tutorial 4: Contract law in the period of Reception and Ius Commune

Literature:
 Text 01 Feenstra and Ahsmann, pp. 11-13, 19-21, 23-24, 25-27, 30-32, 34-35.
 Text 02, B. Nicholas, An Introduction to Roman Law. Oxford: OUP, 1962, pp. 158-167.
- Re-read from Tutorial 2.
 Text 03, A. Borkowski & P. du Plessis, Textbook on Roman Law. Oxford: OUP, 2005, pp.
255-258.
- Re-read from Tutorial 2.
 Text 04, Types of Contractus.
- Re-read from Tutorial 2.

Texts:
 Text 01 Feenstra and Ahsmann, texts nos. 15, 17, 24, 26, 31 (p. 44 ff).

This fourth tutorial focuses on the history of contract law from the period of the rediscovery of
the Corpus Iuris Civilis up to the codification period. We will study the developments in this area
of law from ± 1000 AD to approximately 1750 AD.

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

In this period, the sources of law and their applicability were complex. Some of the most
important sources were Roman law, canon law and customary law. It was not always clear
which rule from which particular source governed a particular case. For this reason, the
legitimacy of the rules to be applied was of great importance. Nevertheless, often the choice of
the legal source was dictated by the desired result. The applicable source of law also
determined, to a certain extent, the competent court where the action could be brought.

Please bring your written answers to the tutorial.

Task 1
State for the texts nos. 15, 17, 24, 26, 31 from Text 01 Feenstra and Ahsmann:
- Its source and what type of source this is.
- The moment the text was written. Please note that some texts were adapted or compiled
into a collection of texts long after they were first written. In such cases, you must state
both the period from which the text originates and the period of its re-use. Also indicate
whether any changes were made to the original text.
- The author’s identity and some information on this author. Examples: When did the author
live? What did he write?

27
Task 2
Study the literature prescribed for this tutorial and analyse the case given below. Determine
the rules applicable to this case and state its source, indicating whether the rules belong to
Roman law, canon law or customary law. Also justify why, in your opinion, the rules from the
particular source chosen may be applied. Subsequently, solve the case on the basis of the
applicable rules.

Falco is a young man who lives in Padua. He was born in 1125, and is now 23 years old.
Five years ago, he started working for Ricardo, who is a master tapestry weaver. They
agreed that Ricardo would teach Falco how to design and weave tapestries. If Falco
worked hard in Ricardo's atelier for five years and did well, Ricardo would help Falco
being admitted to the guild of tapestry weavers. In addition, he would help him to found
his own atelier and eventually to attain the master status.

Falco worked hard and is now the designer and supervisor of half the tapestries that
come out of Ricardo's atelier. Ricardo does not want to lose such a good employee only
to create a formidable competitor. Consequently, he changes his mind: he forgets about
his promise made to Falco: he will not make him a guild member, let alone help him
found his own atelier.

Falco decides to take Ricardo to court, but as he asks the advice of a lawyer he hears that
his agreement with Ricardo, though valid as such, is not actionable according to Roman
law since that law only recognizes a set series of contracts. Falco cannot, therefore, force
Ricardo to comply with his earlier promises by going to a secular court that applies Roman
law. In confusion, he wanders into his parish church, where the local priest is reading his
breviary. The kind old man asks Falco what is the matter, and Falco tells him about his
problems. The priest advises him not to go to the secular court, but to the ecclesiastical
court. There Falco might win his case …

Task 3
Discuss:
1. 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. What has Grotius’ contribution to the development of modern contract law, particularly in
respect to the bindingness of pacta? Explain the difference between his opinions in De jure
belli ac paci and his ‘Introduction to the Jurisprudence of the Province of Holland’ (Inleidinge
tot de Hollandsche rechtsgeleerdheid).

28
WEEK 3: CODIFICATION

1. Introductory Reading
In this third week of the Introduction to European Legal History course the focus is on the
codification period. The start of this period lies roughly around 1750. It is characterized by the
major changes it brings regarding the sources of law. In line with the Enlightenment way of
thinking, which included great faith in the power of reason and which stimulated the
systematization and accessibility of knowledge,1 legal scholars tried to classify the law in a clear
manner and make it understandable for everyone as best as they could.

The logical result of these efforts is codification, the introduction of systematically organised
codes of law that fully regulate a specific field of law through abstract legal rules. Examples are
civil and criminal codes. These codes of law were then declared binding and enforceable by the
legislature. The result is that those who are subject to that law – at least in theory – simply can
consult the pertinent code to find the legal rules applicable to any problem they are facing. As
there was now only one, exclusive source of law for the various fields of law, all law and legal
sources from earlier times lost their validity.

To fully appreciate the impact of the codes of the codification period, we have to realize that a
new situation was created. Never before could citizens determine the contents of any
applicable rule of law this easily.2 Even in the heydays of classical Roman law the situation was
quite different. Roman law knew several sources of law, which often were not ad idem on the
application of the legal rules. In the post-classical period this led to several attempts to simplify
and clarify the law, such as the Codex Theodosianus and of course Justinian’s legislation, the
Corpus Iuris Civilis. These can be regarded as codifications avant la lettre.

In the Middle Ages the situation was, if anything, even more complicated. There was a
multitude of legal sources. Which source was to be applied differed with the judicial procedure
where a legal problem was presented. Possible sources were canon law, customary law (not
always clear regarding content!), feudal law, statutory law in the form of ordonnances,
proclamations and decrees, and of course the learned Roman law.

Roman law was not a primary source of law in Western Europe, as it was never promulgated as
law by any sovereign. Originally it served as a source of inspiration when interpreting primary
sources of law. Later it became a valid subsidiary source of law for those cases where the
medieval primary sources of law remained silent, finally to be incorporated into the customary
legal systems to varying extents. In all these cases, Roman law was seen as another form of
custom, never as formal law.

To those subject to the laws this was a muddy and unclear situation, as one never knew
precisely beforehand what the law would entail in a specific situation. This is what one was
trying to improve from the second half of the eighteenth century onwards, through the
codification of the laws.

1
See for instance Diderot and Dalembert’s Encyclopédie.
2
At least in theory. One could still, through the interpretation of law, go completely counter to the original
legislators’ intentions. See for instance the attitude of the Nazi regime in Germany in the first half of the 20 th
century towards the German Civil Code, the BGB.

29
As said, the introduction of exclusive, general codes was a turning point in legal history.
Together with a clear judicial organization (a Napoleonic invention) the codes brought clarity
and accessibility. There finally came an end to a very long period of insecurity regarding the
law, which set the seal on the work of the enlightened legal thinkers of the 18 th and 19th
centuries.

Does this now mean that all earlier law lost all of its significance? Could the Roman law now be
ignored with impunity, could the medieval legal scholars be forgotten completely by the legal
practitioners of this new era? This is a plausible thought, as all the old sources of law lost their
validity, and therefore seemingly their importance, through the enactment of exclusive
codifications. However, the legislators that drafted the codes did not start from scratch. They
did not intend to make new law, but to systematize existing rules of law and make them
generally accessible. Certainly, they did not intend to abolish all substantive law in one go, to
replace it with new law. In the French Code civil, for instance, the influence of Roman law,
French customary law and natural law can be clearly discerned. For those already practicing law
the French code would not have brought that much innovation, the difference however was
that all law in a specific field could now be found handily together in one volume. Legal
practitioners had to find their arguments in that volume only, as they could no longer rely on
the authority of the older sources. If and when one nevertheless referred to these old laws,
their authority could perhaps only be equated with modern comparative arguments.

To the legal historian, however, there is a trap one can very easily fall into, even though the
codifications of the 18th and 19th centuries can be easily consulted. Before the codification
period, whenever a territory changed hands, was conquered or occupied by one or other of the
European rulers, this simply meant a change of overlord, not much of a change to the prevalent
legal system of the area. However, now nation states recognized only one source of law, i.e.
their codifications, a territory that became part of a new state lost its old law and acquired a
new codification. This happened, for instance, to Alsace-Lorraine, which was conquered and
reconquered by France and Germany several times, but also to Southern Limburg and
Maastricht, which was never part of the Kingdom of Holland (1806-1810) but was straightaway
incorporated into the Napoleonic French Empire. It was a bone of contention when the
Southern Netherlands broke away from the Northern Netherlands to become Belgium, only
fully being part of the Netherlands some years later.

A legal historian therefore always has to check carefully which codification is in force at a
specific place and time during the 18th and 19th centuries, as these centuries have seen
considerable unrest and changing borders all over the continent. One should never take for
granted that territories of European countries were then the same as they are now!

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2. Tutorial 5: Codification

Literature:
 R. Lesaffer, European Legal History, paragraphs 1-4, 396-426, 462-471.
 Cali Module 4.

Report on your findings on all tasks below in a short essay, not exceeding the maximum
number of words, indicated with each task. Please use internet sources and/or UM Library
holdings, when Lesaffer is silent on a subject.

Task 1, Legal Education (100 words max)

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

Task 2, Territory/Demography (100 words max)

At times it can be extremely important to give an accurate description of the historical situation
in a very restricted timeframe. In these cases, deviations of a few years either way could lead to
serious distortion of historical reality.

Task: Describe the territory encompassed by the Kingdom of the Netherlands in 1829. In what
way was the conception of this kingdom politically motivated? Discuss the social and economic
circumstances, as well as the order of Dutch society in those days.

Task 3, Jurisprudence (100 words max)

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

Task 4, Jurisprudence (150 words max)

Explain how the Historical School, the Romanists, the Germanists, and Pandect Science are
related. Was there any influence of the Historical School on the German Bürgerliches
Gesetzbuch (Civil code) of 1900?

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3. Tutorial 6: Contract Law and Codification

Literature:
 Text 05, R. Zimmermann, The Law of Obligations. Oxford: OUP, 1996, pp. 583-598, 600-620.
o Sections 1-6, 8-10 without footnotes.
o A translation of the Latin words and phrases used by Zimmermann is available in
Texts 06 and 07 in Student Portal.
 Text 08, H. Beale et al. (eds.), Cases, Materials and Texts on Contract Law. Oxford: OUP,
2010, pp. 441-445.

Texts:
 The translations of the relevant articles of various modern codifications cited in Beale et al.
(see above)
 S. Hardt and N. Kornet (eds.), The Maastricht Collection. 6th edn., Groningen: Europa Law
Publishing, 2019, Volume 4.

The sixth tutorial will focus on the history of contract law from the end of the 18th century,
especially on the concept of error/mistake. We will look at the developments in this area of law
from the start of the codification period and compare these developments with Roman law.

As you have learned, the codification period begins at around 1750 with the introduction of the
first legal codes in Bavaria, and ends around 1900 with the introduction of the German civil
code. Idealistic notions about the results of the new codifications abounded in continental
Europe: from then on the law would be clear and easily understood by all lay persons without
the ‘law twisting’ intervention of lawyers. It did not turn out this way.

Please bring your written answers to the tutorial.

Task 1
Make a list of the different types of error that may be distinguished in Roman law in the
formation of a contract and give a definition of each type of error. Cite relevant texts
(mentioned in Zimmermann) where possible.

Task 2
State for the articles mentioned in Text 08, Beale et al:
- Its source and what type of source this is.
- The moment the text was written.
- The author’s identity and some information on this author.

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Task 3
Study the literature prescribed for this tutorial and analyse the cases given below.
Subsequently, solve the cases on the basis of:
- classical Roman law, and
- the legal rules of either German, French, Dutch or English law.
Indicate whether, why and to what extent the solutions differ.

1. Paul hands his book over to John. Paul thinks he is lending the book to John, who thinks the
book is a gift from Paul.

2. Matthew sees a beautiful statuette in Mark’s garden. He offers Mark a good price for what
he calls ‘that little statue of Diana’. Mark is a bit surprised, as he thinks the Diana statue is a
crummy little thing, but he agrees. When he brings the statuette to Matthew’s home,
Matthew is not happy: this is not what he bought! When they go together into Mark’s
garden, and Matthew points out the statuette, Mark disagrees with Matthew: this is not a
statue of Diana, but of Minerva! He does not want to sell it, as it is an heirloom. Matthew
insists he bought the statuette, and wants to take it home.

3. Tania orders an expensive crystal decanter from a mail order company. When the decanter
arrives, it turns out to be simple crystal-cut glass.

4. Henry got a watch from his father as a birthday present. He wants a new iPhone, so he sells
the watch for 500 euro to his friend Peter. His father is livid: the watch was a real Zenith,
worth 10,000 euro. Henry wants his watch back, but Peter tells him a deal is a deal.

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