Civil Law – Historical Roots
Roman law
 Actors: jurist, praetor, judge
 Justinian Corpus Juris Civilis
Method of determining Roman law
 Glossators
 Commentators
 Authorities: treatise writers
Civil Law – Historical Roots
Roman law - actors
 Praetor
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Approves litigation
Annual edict
 Jurist
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Roman aristocracy
Legal writings / opinions
 Judge
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Iudicium strictum
Iudicium bonae fidei
Praetor’s actio (formula)
 Names judge
 Intentio: if Def agreed to
pay Pl $10,000
 Exceptio doli: if Pl did not
commit fraud
 Condemnatio: Tell Def to
pay Pl $10,000 – unless
already paid
Civil Law – Historical Roots
Corpus Juris Civilis (Justinian)
 Institutes (4 books – 530AD)
 textbook (based on Institutes of Gaius – 160AD)
 force of law
 Digests or Pandects (50 books – 530AD)
 Excerpts from 38 jurists
 Opinions and writings
 Codex (12 books – 529AD)
 Imperial decrees
 Revised and compiled
 Novels (Justinian decrees after 534AD)
Civil Law – Historical Roots
Civil Law – Historical Roots
Justinian’s reign (527-565AD)
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turning-point in Late Antiquity
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last time Roman Empire on military offensive
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Africa and Italy recovered
foothold in Spain
By end of reign, Balkans devastated by raids / Italy economically ruined
Byzantine art
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paganism finally loses long struggle to survive
Irreversible schism in Christianity between East and West
First Bubonic plague (542, returned 558)
Architecture: Hagia Sophia (still standing in Istanbul)
Sensuous poet Paul the Silentiary
Commissioned revival of classic Roman law
Civil Law – Historical Roots
Hagia Sofia (537AD)
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greatest church in Christendom
converted into mosque by Mehmet II
buttresses added by Sinan (1571)
Civil Law – Historical Roots
Demerara Turf Club Ltd v. Wigt (Privy Council 1918)
Turf Club, in liquidation, announced auction of its Bel Air Park.
“Purchaser shall pay auctioneer in cash on knock of the hammer.”
Wigt made the last bid of $16,005. The auctioneer refused to sell at
that price. Wigt said, “The Turf Club is mine.” But to no avail, so he
sued for specific performance.
Questions:
What law applies in British Guiana?
What’s the issue? The parties arguments?
Civil Law – Historical Roots
Roman-Dutch law (mid-15th Century to codification)
 Plaintiff’s argument
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Auctioneer is offeror / each bidder is acceptor – each bid a
provisional contract
Auctioneer (absent reservation) tacitly agrees to accept best
bid
 Defendant’s argument
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Bidder is offeror / auctioneer is acceptor
Auctioneer has discretion not to accept
Civil Law – Historical Roots
Roman-Dutch law
 No code, statute, ordinance
 No decided cases
 Look to writers of authority
Questions:
 What law is court seeking to discern?
 What do authorities say? some more authoritative?
 Are any analogies?
Civil Law – Historical Roots
Addictio in diem
(1)
(2)
(3)
Buyer agrees to let seller look for better price
Seller can annul contract if finds a better price
If so, first buyer can increase his price and keep goods
Questions:
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Useful analogy?
Is addictio in diem an auction? Like an auction?
Where look next?
Civil Law – Historical Roots
Antonius Matthaeus (De Auctionibus – 1653)
 Necessary sales (public auctions): not final until court decrees
and “lifts the wax from the seal”
 Voluntary sales (Dutch auction)
 Day 1: highest bidder receives a premium (bidder bound,
seller not)
 Day 2: Seller starts at 1/3 higher price, descends until
someone calls “mine”
 If not, first-day bidder buys
Civil Law – Historical Roots
Hermessen Matthaeus
Civil Law – Historical Roots
Matthaeus (De Auctionibus – Book 1, Chapter 10, De Licitationisbus)
(1) Can bidder withdraw? No
(2) Can seller withdraw? No
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Seller able to withdraw, not bidder, would be “absurd”
Seller who proclaims auction tacitly agrees to sell
Questions:
 Is this the end of the matter?
 How does the court avoid Matthaeus’s conclusions?
Civil Law – Historical Roots
Count the authorities:
 Auctioneer offers and bidder accepts (plaintiff wins)
Puchta, Pandekten, Berwick
 maybe Voet (most famous Dutch jurist)
 Bidder offers and auctioneer accepts - no sale until fall of
hammer (defendant wins)
 Mattheaus (but says auction subject to auctioneer’s promise
to accept)
 Modern Andries Maasdorp
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Question:
 How does the Privy Council resolve this split? What source?
Civil Law – Historical Roots
Privy Council:
 “no rule of Roman-Dutch law that prescribes that bidder is
acceptor”
 “no rule that highest bidder can insist property not be withdrawn
and claim to have bought it”
 “This being so, the matter is governed by the provisions of the
conditions of sale [knock of the hammer] … that the offer will
come from the bidder and there is no bargain till it has been
accepted by the auctioneer”
… much ado about nothing!
Civil Law – Historical Roots
Bank of Lisbon and South Africa v.
De Ornales (Sup Ct South Africa 1988)
Ornelas Fishing Company had a line of credit with Bank of Lisbon.
It was secured by deeds and other securities given to secure any
“overdraft,” but worded broadly cover all obligations”from whatever
source.”
When Ornelas closed its line of credit, the Bank kept its securities.
This is nasty – no? Isn’t the contract “unconscionable”?
Civil Law – Historical Roots
South Africa
Civil Law – Historical Roots
History of exceptio doli generalis
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Old Roman law: ius strictum does not recognize fraud liability
Praetorian law ameliorates
(1) Actio doli mai
(2) Exceptio doli male (exception in sphere of contracts /
defense to stipulation or loan)
Civil Law – Historical Roots
Civil Law – Historical Roots
Exceptio doli (Bortolus notices distinction)
 Exceptio doli specialis – defense that fraud in making of contract
 Exceptio doli generalis – defense that “evil” for plaintiff to sue on
contract
 Achieve equity
 Classical Roman law: pleaded as defense, included in
praetor’s formula
 Post-Classical Roman law: confession and avoidance /
defendant mentions facts
Civil Law – Historical Roots
Glossators and Commentators (12th Cent. – 15th Cent.)
 Glossators recognize dolus generalis
 Commentators (modernize Roman law of contracts)
 “nude pacts” (verbal agreements) create obligation same as
“privileged contracts”
 stipulatio stripped of technicalities / exceptio doli generalis
unneeded
Questions:
 Are we at Roman-Dutch law yet?
 If not, why this study of the historical?
Civil Law – Historical Roots
 Roman-Dutch law (15th Century)
 Exceptio doli generalis not received in Holland
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References in texts on Roman law not acceptance
No evidence that used in litigation
No reference with authorities (Dutch and others):
disappeared in Middle Ages
What’s left?
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Equity cannot override clear rule of law
All contracts are bonae fidei, but no equitable exception
Question:
 Who wins – nasty Bank or victimized borrower?
Civil Law – Historical Roots
Bank of Lisbon
Civil Law – Historical Roots
Dissent (Jansen)
 Justinian Digest (D 44.4.1.1)
 “Person’s fraud should not benefit through civil law, but contrary to
equity”
 Although exceptio doli generalis no longer procedural device, bona
fides to be applied
 Contract uncertainty
 British common law adopts unconscionablity
 UCC adopts unconscionablity (affronts decency)
 German law: exceptio absorbed into bona fides
 Unconscionable: Bank used standard form, security far beyond
needs, offends sense of justice, see earlier cases