Vol. 11 Issue 2 Year 2018

Volume 11 (2018)

Publication date: 30.08.2018

Description

Volume Editors: prof. dr hab. Dorota Malec, prof. dr hab. Wacław Uruszczak, dr Maciej Mikuła, Damian Szczepaniak

Licence: CC BY-NC-ND

Editorial team

Issue editor prof. dr hab. Dorota Malec, prof. dr hab. Wacław Uruszczak, dr Maciej Mikuła, Damian Szczepaniak

Issue content

Condictio causa data causa non secuta’ and Development of the Contractual System

Marek Sobczyk

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 2, Volume 11 (2018), pp. 177 - 195

https://doi.org/10.4467/20844131KS.18.010.8774

In this paper I deal with the relations between one of the basic unjustified enrichment claims in Roman law condictio causa data causa non secuta and the development of contract law from Antiquity to modern civil law. Two main issues of my research concern the condictio itself and the evolution of contract law from the Roman contractual nominalism to the modern principle of freedom of contract. In the first part of the paper I describe the legal character of condictio causa data causa non secuta and fields of its application in Roman law, especially in cases of innominate contracts. The second part of the paper is devoted to Roman contractual nominalism, the achievements of Roman jurists in recognition of new contracts, the contribution made by Medieval lawyers, canonists, lex Mercatoria and Roman-Dutch jurisprudence in the 17th century for the general recognition of the pacta sunt servanda principle and freedom of contract. I come to the conclusion that as a result of the long-term evolution towards the freedom of contract condictio causa data causa non secuta lost its significance in the field of contracts. Already in the oldest civil codes of modern times the scope of application of that condictio was narrow and as a rule did not extend to contracts. As a consequence, the need for its further existence was disputed during the preparatory work on the German civil code. In the last two parts of the paper I present the current significance, legal character and fields of application of the condictio in German and Polish civil law. As a rule in the contemporary law the condictio is not applicable within the framework of contract law.

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Rozwój prawa średniowiecznej Walii do 1284 roku – perspektywa historyczna

Katarzyna Jaworska-Biskup

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 2, Volume 11 (2018), pp. 197 - 216

https://doi.org/10.4467/20844131KS.18.011.8775

The article discusses the development of Welsh law from the earliest recorded times until 1284, in which year the Statute of Rhuddlan was enacted by Edward I to be binding in the English-dominated Principality. It provides major historical phases of the evolution of Welsh law, such as the pre-Roman times, Roman times, the Anglo-Norman colonization of Wales, and, finally, the Welsh Wars of Independence of 1276–1277 and 1282–1283. Alongside investigating Welsh medieval law, the article gives insight into Wales’ complicated history and her relations with other countries such as Ireland and England.

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Advitalitas simplex i advitalitas mutua w polskim prawie ziemskim

Marcin Głuszak

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 2, Volume 11 (2018), pp. 217 - 227

https://doi.org/10.4467/20844131KS.18.012.8776

The life estate agreement – advitalitas inter coniuges – one of the most important private law institutions of the Polish-Lithuanian Commonwealth period has not been subjected to exhaustive research so far. In the historical and legal literature devoted to matrimonial property law, no consensus was reached regarding the nature of life contracts. While most authors raise doubts regarding the obligation to make reciprocal provisions by both spouses as a prerequisite for an effective conclusion of the contract, the source materials do not seem to confirm this thesis. The contract forms used in the land and town courts, the opinions of the authors of the compendia, and the studies of the old Polish law and practice form the basis for the assertion about admission to legal turnover of unilateral lifetime subscriptions.

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Źródła poznania prawa bartnego przedrozbiorowej Rzeczypospolitej

Kacper Górski

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 2, Volume 11 (2018), pp. 229 - 255

https://doi.org/10.4467/20844131KS.18.013.8777

This article attempts to complete the previous paper concerning sources of laws governing the hunting of honey (A Survey of Sources of Honey Hunting Law in Poland Prior to 1795, “Cracow Studies of Constitutional and Legal History” 2017, vol. 10, issue 3, p. 419–466). To this end a survey of fontes cognoscendi of honey hunting law has been produced, including historical sources of normative and non-normative characters. The former category encompasses, inter alia, documents that contained either clauses concerning honey hunting or writs of mandate issued by monarchs to their officials. Legal norms regarding honey harvesting can be found in codes of customary law, general privileges and statutes issued by monarchs (e.g. Statutes of Casimir the Great, the Statute of Warta, and the Statute of Warsaw of 1401), Lithuanian Statutes, and Sejm legislation (constitutions). Special attention should be paid to domanial law, especially codes of honey hunting law containing legal norms for local honey hunters’ communities (so-called honey hunting law sensu stricto). Among them one should take note of both the code of Skrodzki (the honey hunters’ community in the Łomża captainship of 1616) and the code of Niszczycki (the honey hunters’ community in Przasnysz at the turn of 16th and 17th centuries). In researching non-normative historical sources, attention should first be drawn to honey hunters’ books of records. Their exceptional role in the study of honey hunting law should be emphasized. These books were usually handled by the officials who were responsible for registering the legal activities of the offices and courts of honey hunters’ communities. Only a few books have been edited and published (the Book of Jedlnia [1874], and the book of Nowogród [1928, partially]). Meanwhile the majority of them still exist as manuscripts and are kept in the archives (Books of Nowogród in The State Archives in Poznań; Book of the Przasnysz captainship in The National Archives in Kraków; Books of the Leżajsk captainship in The Ossolineum in Wrocław and in The Kórnik Library; and the Book of Człuchów in The State Archives in Szczecin). Other historical sources, i.e. books of records of village communities’ courts and books of referendaries’ courts as well as historical economic sources (inter alia inventories of royal domain), could only serve as auxiliary sources. Honey hunting law provides a wide range of research opportunities, especially in the field of the exercise of the law by honey hunters’ courts. The comparative study of honey hunters’ communities in Poland-Lithuania and across Europe should also be considered.

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Obsada funkcji prepozyta i radców Kolegium Prawniczego Uniwersytetu Krakowskiego w latach 1657–1780 w świetle jego ksiąg rachunkowych

Krzysztof Fokt

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 2, Volume 11 (2018), pp. 257 - 277

https://doi.org/10.4467/20844131KS.18.014.8778

This article provides a list of the provosts and counsellors of the College of Lawyers of the Kraków University in the years 1657–1780. Furthermore, some details concerning the source basis and the circumstances which could have impact on how particular professors fulfilled their duties in those functions in the given period of time were presented and commented on.

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