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Latin American Law Medieval law > Canon law > Law merchant Last updated 07 Sep 11
Classic Roman Law (100 AD - 300 AD) Austrian Civil Law French Civil Code (1812) (1804) German Civil Code (1900) Swiss Civil Code Louisiana Civil Code (1808) US Law (1907) Japanese Civil Code (early 1900 s) Italian Civil Code (1942) Turkish Civil Code (1926)
Is common law or civil law more like Roman law? • Precedents • Forms of action (remedies) • Stages: writ / proof • Proof left to layperson • Law / equity distinction
Why study “medieval” law …
Value of knowing other legal systems • • Model for borrowing Gain perspective Discover truths Impose / power
Consideration X promises Y (1) to transport 10 flasks of wine for Y and (2) to marry his daughter Y makes no promise in return Is X bound on his promises? • Roman law • Canon law • Law merchant
Roman law • Nuda pactio obligationem non parit – A naked agreement [without consideration] does not create an obligation. Dig. 2. 14. 7. 4. – Ex nudo pacto non oritur actio. No action arises on a contract without a consideration. • Stipulatio – formal contract by which promisor (and only promisor) becomes bound – Sixth century AD: exclusively written
Canon law • Pacta, quantumcunque nuda, servanda sunt – Agreements, even naked ones, must be kept (Pope Gregory 1234) – Pacta sunt servanda - agreements must be kept • "Every treaty in force is binding upon the parties to it and must be performed by them in good faith. “ Vienna Convention on the Law of Treaties, Art 26 Keith Orgel: Church jurisdiction?
Law merchant • Lex mercatoria: abandoned consideration requirement – Customs of merchants – Encourage commerce – Specialized courts / procedure • UCC 2 -204: An offer by a merchant to buy or sell goods in a signed record that [assures] it will be held open is not revocable, for lack of consideration … Jim Rodden: what is fairness?
Canon law … Trevor Ostbye: History / aspects of Roman law?
Canon law Roman law Bible Natural law Papal Canons of decretals church councils Corpus iuris canonici (marriage, succession, crimes) • • Concordantia discordantium canonum (Decretum) , compiled by Gratian, 1140 Decretals of later popes (Boniface VIII, Clement V, John XXII) Canonists - commentators • Academics • Scholastic method Gratian, Father of the Canon Law. “He associated the Scriptures with natural law, a changeless source of law written on our hearts by God”
Canon law persistence • Argentina civil code: denied non. Catholics the right to marry, did not allow divorce (same in Chile, Brazil) • Uruguay civil code: husband can seek a divorce if his wife commits adultery, but not vice versa. Times are changing • Argentina Law No. 23, 179 (1985): women equality regarding joint custody, equal rights for children born out of wedlock. • El Salvador (2004): ban common practice requiring women to submit to pregnancy test to work. • Same-sex unions: Argentina, Brazil, Colombia, Ecuador, Mexico, Uruguay Keith Orgel: Why is Lat. Am less bound by religion compared to US?
Pelligrini v. Italy (ECHR 2001) National law vs. church law
Lex Mercatoria. . . Trevor Ostbye: why not Roman law? Jim Rodden: role of scholar in each?
Law Merchant Genoa Barcelona Venice Needs of merchants Pisa Commercial customs Amalfi Commercial codes (ex acqueo et bono) Merchant tribunals • Expert judges • Expeditious procedures • Equal treatment to outsiders
Law merchant E-commerce law Trevor Ostbye: how has Ebay created law merchant / good or bad?
William Murray, 1 st Earl of Mansfield • British judge, House of Lords • Father of “English commercial law” – Based on Roman and law merchant – Defined principles of commercial law • So consider origins of UCC – “trade usage” / “just price” / “good faith” – Karl Llewellyn / Soia Mentschikoff Lord Mansfield (1705 -1793) Trevor Ostbye: Why not rely on common law?
Venice (law merchant) Delaware (corporate law) NCBusiness. Court. net Jim Rodden: But where did corporate come from? courts? how many USstructure states have business
Johannes Andreae, Sarcophagus, Bologna
Law merchant Lat. Am commercial law Spain also opened "sea councils" in cities like Mexico and Lima to solve maritime and commercial controversies over its conquered territories. Later, during independence, Latin America countries developed their own commercial codes, massively influenced by the medieval Law Merchant. Joel
Law merchant E-commerce law The online Law Merchant’s ability to continue as the primary regulating force in the online marketplace will be challenged and, I predict, come to an end. Lauren Connell I find it unsurprising that merchants would develop self-governing laws in Medieval times or in the present day. Lauren Connell
Canon law and law merchant in Panama Family law / death penalty / Separation of civil and commercial law Joel de León