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Volume 7, Issue 1

Volume 7 (2014) Next

Publication date: 13.09.2014

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Volume Editors: Wacław Uruszczak, Dorota Malec, Andrzej Dziadzio, Maciej Mikuła

Licence: None

Editorial team

Redaktorzy zeszytu prof. dr hab. Andrzej Dziadzio, prof. dr hab. Dorota Malec, prof. dr hab. Wacław Uruszczak, dr Maciej Mikuła

Issue content

Grzegorz Blicharz

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 11-27

https://doi.org/10.4467/20844131KS.14.005.2246
Analysis of Roman sea loan from the modern perspective of Project Finance has been now conducted in the relation to the methods of gaining profit. In pecunia traiecticia interest where considered not as a remuneration for usage of creditors money but as the price for taking over the risk by the creditor. Thus the Latin phrase periculi pretium (D. 22,2,5) has become so famous. The unique character of the interest caused the evolution of the legal construction of the sea loan. At first it was necessary to agree on the fenus nauticum in the stipulation added to the loan. Then, jurisprudence confirmed the possibility of suing debtor for interest also on the ground of the mere pactum. Another aspect of the sea loan which implies the similarity with Project Finance was the privileged position of interest which were not constrained by the legal limits of interest as in the case of typical mutuum. Strict connection between the contract of sea loan and the risky venture one can easily notice when taking into consideration that the agents of creditor were participating in that venture together with the debtor. Moreover, the creditor received not only the loan and the interest but also a remuneration for time which his slaves spent with the debtor. The additional stipulation for agents participation and the character of liability of debtor’s heirs provide a new perspective of the sea loan as a mean to finance risky ventures in antiquity. Modern Project Finance resembles to high extent the ancient solution and that enables further studies on the topic.
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Karolina Wyrwińska

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 29-38

https://doi.org/10.4467/20844131KS.14.001.2242
The deliberations presented in the article have been devoted to the functioning of the institution of “credit money” at the time of the late Roman Republic. In the modern times, the concept of “credit money” refers to receivables which a natural or a legal person is entitled to and which may serve to acquire goods or services. An analysis of the sources from the period of the Late Roman Republic allows one to conclude that the purchase and sale of receivables for the purpose of settling accounts was known to the Romans, and moreover, it allows one to study the phenomenon of the extent of the use of “credit money” during that time. It is particularly Cicero’s “Letters” which indicate that non-cash settlement of transactions was commonly resorted to particularly when using metal coins was difficult or even impossible due to the high value of the negotiated transaction. Taking into consideration the necessity of ensuring security to this type of transactions, it is impossible to ignore the role of bankers as professional intermediaries who were responsible for creating the right conditions enabling one to make payments at a distance.
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Franciszek Longchamps de Bérier

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 39-57

https://doi.org/10.4467/20844131KS.14.002.2243
The use of principles in the legal practice, which are quite often expressed in Latin, is associated with various intentions. What is important is that they should be used, both in research and in the professional practice, in full awareness of their origin and context. The Latin maxims, legal maxims or rules emphasize the Roman origin of the European private law. One of such maxims is nemo plus iuris ad alium transferre potest, quam ipse haberet. Its original context was associated with inheritance law. The Justinian’s compilers endowed it with the value of a universal rule. The adage is associated above all with private law, although it was also made use of in the sphere of public law. It occurred in many different variations; in order to find its original wording, one has to consult the 17th Title in the 50th Book of Justinian’s Digest. In order to make good use of the maxims one has to take into consideration their wider context – the legal system at the time of Ulpian differed considerably from the one used during the Justinian’s era. Nemo plus iuris had also played a significant role in the law of obligations. In classical Roman law and in the times of empreror Justinian, the maxim was a rule of law and as such it allowed of no exceptions. For the correct interpretation and use of maxims it was also necessary to take under consideration the related maxims. In the case of nemo plus iuris such a maxim was nemo sibi ipsum causam possessionis mutare potest. The Latin legal maxim is often used in Polish legal discourse, although it is not directly expressed in statutory law.
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Łukasz Marzec

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 59-67

https://doi.org/10.4467/20844131KS.14.004.2245
The range of the real freedom of contracts in private law was both a growth factor of societies as well as a measure of the extent of their internal changes. The practice worked out by the Roman lawyers, though limited formally by contract nominalism, became the basis of modern-day solutions. In spite of a simultaneous reconstruction of the social and economic systems which may be summed up after H. Maine as a development from status to contract – the principles of the freedom of contract together with their fundamental limitations, had remained valid. In this context, one may mention the laws which protect the rights of economically weaker subjects, such as the ban on the loss of the pledged asset (lex commissoria), the permissible relation of the price to the value during sale transactions (laesio enormis), maximum prices on basic goods (edictum Diocletanii de pretiis rerum venalium).
A special but continually valid issue which is analyzed, among others by Cicero, is that of mutual honesty of vendors and purchasers: to what extent can they make use of the information which is unknown to the other party; at what point we can say that they have overstepped the boundary-line of stratagem. As regards the latter issue, there is no uniformity of opinion in different legal systems; it seems that it is the principle of maximum facilitation of trade that takes the upper hand and is not unknown to the Roman law. The author of the article also analyzes the beginnings of actio de dolo and the different contemporary court experience. In conclusion, the author poses an open question concerning the future of contract law in view of the too far advanced freedom of contracts.
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Janusz Sondel

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 69-91

https://doi.org/10.4467/20844131KS.14.007.2248
Latin, whose origins reach back to the Proto-Indo-European language, pervaded the European culture beginning with the Roman times and its influence continues until the modern era. It arose in its primal form in Latium on the Apennine Peninsula and it continued to develop together with the Roman Empire; it was subject to the influence of other cultures, particularly in the sphere of the spoken language. It was also during Roman times that literary Latin was created, but around that time another variety of Latin as spoken by the lower social classes was also born; this division exerted an immense impact on the evolution of Latin and the derivative European languages in the Middle Ages and in the modern era. Classical Latin was popularized in Europe chiefly by the Church; it functioned as a language of instruction at universities and it became the language of communication of both men of the world of learning and men of the law. In the Middle Ages Latin became rejuvenated, subjected to various modifications, including a process of regionalization. The Renaissance brought about a return to the classical variety of Latin and a desire to purify it from the accretions of the Middle Ages. Latin remained to be very much alive in the era of the Enlightenment, yet it also began to lose its significance in relation to national languages. The origins of legal Latin which initially was not only a technical language, reach back to the writings of Roman jurists. Initially legal language relied heavily on real-life social and economic relations. Yet already in ancient Rome, abstract concepts had been used in Latin and the nomenclature of legal institutions was evolving. This process continued throughout the mediaeval times. A good example of an outstanding expert on Latin in Poland was Wincenty Kadłubek. In Poland Latin had been a universal language, particularly in the sphere of the judicial system. This was combined at the same time with the progressing Latinization of the Polish legal language. Dictionaries were yet another important aspect of the functioning of Latin – in Poland they began to be published in the 14th century. Translations of legal texts into Polish, beginning with the translations of the Statutes of King Kazimierz Wielki, were also popular in mediaeval Poland. Such translations are also a common practice today – the directive which bids to use Latinized forms of technical terms, rather than their Polish translations which are often descriptive and resort to neologisms, seems to be quite justifiable. Though rarely used and hermetic, Latin seems to persist and is waiting to be rediscovered.
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Marian Małecki

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 93-109

https://doi.org/10.4467/20844131KS.14.006.2247

The paper sheds light on a rather narrow aspect of the history of Knights Templar, analyzing it from the point of view of its internal disciplinary legislation. As an order grouping knights, in its statute, the Order made numerous references to discipline and the penal system. In the paper, the author characterized the various preserved copies of the Order’s Statute, out of which as many as 15 have survived until the present times; subsequently, he referred to the so called hierarchical statutes of the Order; among others, the latter defined in detail the disciplinary responsibility of Order members. On the basis of the above sources, the author divided the disciplinary measures into groups, beginning with the most restrictive ones and ending with the penitential and expiatory ones. He showed the types of offences which, when committed, threatened the wrongdoer with a loss of a home or tunic, as well as minor offences for which one could adjudicate penance or else abandon the idea of punishing the culprit altogether. The author described the procedure which initiated disciplinary proceedings as well as the penitential practices of the penitent. He also provided pertinent examples of violations of the Statute by the Templar Brothers, relying on source materials.

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Anna Karabowicz

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 111-131

https://doi.org/10.4467/20844131KS.14.010.2251
The present paper briefly surveys the developmental lines along which Polish customary and statutory legal systems have evolved. Emphasis is placed on the time period up until the Third Partition of Poland. Originally, Polish law formed a customary system. However, in the course of centuries, this system was partially modified by statutory law, the statutes being first the creation of the monarchy and later that of the parliament. Customary law, however, remained predominant due to the power of the Catholic Church, as well as Poles’ reluctance to abide by Roman law. Between the thirteenth and fifteenth centuries, customary law began being compiled into various collections. At the same time, statutory law began to appear, for instance, in the form of royal privileges for the nobility, sometimes issued in consultation with a large body of the monarch’s advisors assembled in so-called colloquia. The latter, as the proper place for the monarch to adopt statutory rules, laid the foundation for future parliamentary structures. Thus, customary and statutory law coexisted in Poland during this time period. Land law, on the other hand, was overwhelmingly customary in nature even in the fifteenth century. Then, in the sixteenth century, attempts were made to replace the custom with a codified land law system. The statute frequently performed a complementary role vis-à-vis the custom and supplemented principles contained therein. In some cases, however, the statutory law would contradict older practice and tradition, thereby introducing new norms. In the sixteenth century, when regular parliaments (Sejms) began to fully function, the old ius ducale, which once allowed the monarch to intervene in the substance of customary law, ceased to exist. Additionally, the nobility, who controlled Sejm activities, showed no real intention of intervening in the custom. Ultimately, during the mid-sixteenth century, the legislative nature of customary norms ceased to be questioned. Two old Polish institutions – life annuity between husband and wife and the securing of a loan by mortgage – exemplify the predominant role of the custom over the statute. This tendency is particularly evident in penal law, homicide being a prime example. Statutory law, on the other hand, was more successful in the area of procedure. However, it is possible to encounter the same tendency as in the aforementioned institutions of private and penal laws, an example being the old Polish possessory trial. The coexistence of the custom and the statute in the Polish legal system is supported by a long-lasting tradition, the role of the custom being not entirely eliminated even today.
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Maciej Mikuła

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 133-145

https://doi.org/10.4467/20844131KS.14.009.2250

An intensive development of Polish parliamentarism took place in the 15th century; the composition, procedures and competence scope of the General Sejm (Polish parliament) were being established, an example of which may be the principle that the Polish gentry was to be represented in Parliament by elected deputies – two from each land. Among the numerous regulations established at all kinds of conventions which took place in the early period of Polish parliamentarism, there were issues devoted to cities and town dwellers. Among them, one should mention, among others, regulations relating to trade and trade routes, those counteracting the high costs of life, changes relating to the principles of court proceedings, and taxes. Numerous regulations had to be reevaluated and reconsidered at successive parliamentary sessions, also in the 16th century, which testifies to the fact that due to the resistance of the townsfolk, the regulations passed by the sejm, had not been applied. Yet the overall evaluation of parliamentary legislation dating back to the early period of Polish parliamentarism, does not allow one to conclude that this legislation was unequivocally anti-urban. Numerous laws and regulations which had been passed in the interest of the gentry were also favorable to the townsmen.

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Dorota Malec

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 147-157

https://doi.org/10.4467/20844131KS.14.011.2252
The scope of the jurisdiction of the Rector of the Krakow Academy was determined by the foundation privileges of Kazimierz Wielki and Władysław Jagiełło; the latter had subsequently been extended by the university statutes as well as by the royal and urban documents. The judicial competence of the Rector, named in legal documents as the “highest judge”, referred above all to members of the university corporation, but also to people remaining outside this structure (e.g. in some cases to the Krakow townsmen). The Rector assumed the jurisdiction the moment he had taken an oath. The students and professors of the Krakow Academy were also subject to the Rector’s judicial authority, the moment they had taken an oath. The subject range of the Rector’s jurisdiction comprised penal cases, including those relating to disciplinary issues. The jurisdiction also extended to civil law: confirmation of documents, certain institutions of inheritance law and even civil contentions relating to copyright law. The Rector adjudicated on the basis of canon law, Roman law and customary law as well as on the basis of the university statutes. The procedure was based on a shortened and simplified mode derived from canon law. The trial was of an adversarial nature and consequently, the penal and civil proceedings did not differ much one from another. All proceedings were based on the principle of oral testimonies. The hearing of evidence was based on a legal theory of evidence. The fundamental type of evidence was an oath, but other forms of evidence were also allowed, including testimonies of women witnesses. The majority of cases adjudicated by the Rector concerned the students of the Academy; proceedings against professors were also conducted. The most common offences concerned disciplinary matters, offences against morality, neglect of duties, theft of books, fights. Among the adjudicated punishments there predominated fines although one could also come across penalties of temporary imprisonment or church punishments, such as excommunication. The students and professors were protected by immunity, thanks to which they could not be held responsible before municipal and magistrates courts. As a matter of rule, one could not appeal against the verdict passed by the Rector, although there were other legal measures that enabled one to avoid punishment. During the reforms implemented by H. Kołłątaj, attempts were made to broaden the extent of the Rector’s judicial competence, yet the latter had never been implemented on a wider scale. The Rector’s jurisdiction was eventually abolished by the Austrian authorities.
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Wacław Uruszczak

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 159-168

https://doi.org/10.4467/20844131KS.14.008.2249
Over the course of history, on countless occasions the law had been treated as an instrument for conducting policy. Such is also the contemporary understanding of the function of law in democratic countries. Yet, during the Jagiellon period the law was a means, not an end. It was defined in absolute terms, as a desirable ideal state for which one should strive. Consequently, it was politics that served as a means for the realization of the goal, which was the law, and not conversely. Moreover, the view that civil law should be in accord with divine law and natural law, was widely accepted. Consequently, creating new laws required an axiological justification. Among the goals of the constitutions passed by Parliament, the legislators enumerated, among others, the wellbeing of citizens, peace, good government, order, justice. At the same time, in the opinion of the gentry, it was the privileges which in many cases constituted a departure from the common law and served as a means of realization of one’s immediate political goals, this playing a highly negative role. This type of policy was curbed by the limitations imposed by the concept of common law perceived as superordinate over particular and individual rights, and at the same time understood as wise law that was in accord with the divine and natural law. In its relation to politics, common law was therefore perceived as a goal to which all group and individual rights used in the form of political instruments should be subordinated. The Polish common law which had been shaped during the first Jagiellon rulers, became the fundamental goal of the policy of the Polish state during the reign of the last representatives of this dynasty.
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Paulina Święcicka

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 169-180

https://doi.org/10.4467/20844131KS.14.003.2244
The phrase suum cuique as an incarnation of “justice,” like many other Latin dicta, is deeply enrooted in the mental consciousness of mankind, and it lives its own life as a part of the so-called universal culture. Generally speaking, reference to Roman justice served and still serves as a justification of one’s own actions when such actions cannot defend themselves by their own formal correctness. It is, therefore, recourse to the eternal values, the understanding of which, however, is determined by one’s own experience or by experience of a particular epoch. This is proved by words of the authors mentioned in the title of the study, though separated from each other by several centuries and having different visions of the world, they considered the embodiment of this phenomenon in the phrase suum cuique as the most appropriate for their own narrative and judgmental description of the reality. Shakespeare, although he undoubtedly saw in Roman justice a guarantee of justification of certain actions, referred to this idea without a deeper analysis. Müller, one of the most important German dramatists of the second half of the 20th century, screaming through the voice of Tamora, who demands “Roman justice,” showed that a call for Roman fundamenta as well as for Roman iura et mores almost for the last time stands in the unsolved conflict with one’s own inhumane actions and inflation of all values that mankind has persistently considered as permanent.
The article aims to analyse a cultural commentary on the use of the phrase suum cuique – a commentary understood as a way of bringing something that is analysed into the reality current for a commentator. In one dimension, this can be a dramatic comment rather than a simple description of a certain reality. Therefore, such a commentary should not be assigned only to a single commentator-narrator but to many who represent different eras.
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Krzysztof Fokt

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 181-192

https://doi.org/10.4467/20844131KS.14.013.2254
The article comprises a brief description of the functions of provost and councilor at the Law College of the Krakow University; it describes their competence scope, responsibilities and constitutional empowerment within the structure of the University and the Collegeand gives a list of the persons who had performed these functions in the individual semesters in the years 1628–1657. The fundamental source which had been consulted in the process of compiling this data was an account register of the Law College from the years 1628–1694 (Jagiellonian University Archives, manuscript no 49).
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Izabela Lewandowska-Malec

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 1, Volume 7 (2014), pp. 193-200

https://doi.org/10.4467/20844131KS.14.014.2255

The trade contacts between the Kingdom of England and the Polish Commonwealth in the 17th c. were very lively. The commodity which was in particularly high demand in Poland was the English cloth. It was the English Trading Company with its seat in Elbląg that had the privilege for its supply. Yet political problems had exerted a negative impact on a harmonious economic cooperation. During the so called “Prussian” war of 1626, Gdańsk had retained its allegiance to the Polish Commonwealth, whereas Elbląg surrendered to the Swedes. In retaliation, at a Parliamentary session of 1628, Gdańsk had been granted compensation for the losses caused by the war and subsequently, due to the empty state treasury, it was granted the right to charge stamp duty on the cloth that was obligatorily transported through the Gdańsk port. Finally, the Trading Company had been deprived of its seat in Elbląg. The efforts of the Company agents, who also enjoyed the status of royal envoys, aimed at establishing the company’s seat in Gdańsk and ultimately liquidating the Gdańsk duty stamp. An example of the activities undertaken by the Company was the diplomatic mission of Francis Gordon at the Polish Seym in 1637. His legation had been received and heard by the deputies of the Polish Diet on 18 February; Gordon had read the letter of king Charles I Stuart pointing to the dangers and losses which resulted from stamping English cloth by the Gdańsk port authorities. Yet Gordon’s mission did not achieve anything as the Seym’s session ended ineffectively and no resolutions were passed. The battle for the liquidation of the stamp continued. At a successive Seym session in 1638, a resolution concerning a temporary suspension of the Gdańsk privilege had been reached; it was even debated whether the privilege is at all in accord with the law of the Polish Commonwealth, if it constituted a restriction of the freedom of trade. Finally at a Seym session in 1647, it was decided that the stamp should not be withdrawn, but that other port cities should also have a right to use it.

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Słowa kluczowe: sea loan, stipulation, pactum, interest, speculation, credit money, credit, purchase and sale of receivables, bankers, non-cash transactions, nemo plus iuris, Roman law, legal maxim, legal principles, freedom of contracts, freedom of agreements, contract nominalism, pledged asset, loss of pledged asset, just price, sale, stratagem, error, comparative study, private law, Roman law, Legal Latin, legal culture, mediaeval Latin, Catholic Church, Wincenty Kadłubek, dictionaries, Statutes of Kazimierz Wielki, Roman Empire, Knights Templar, penal law, crusades, disciplinary responsibility, statute of Knights Templar, the Church, punishment, penance, custom, customary law, statute, privilege, statutory law, king, parliament, coexistence of custom and statute, domination of customary law, development of the statutory law system, inception of statutory law, private law, penal law, procedure, Sejm, parliament, Władysław Jagiełło, Władysław Warneńczyk, Kazimierz Jagiellończyk, Magdeburg law, statutes, acts, Middle Ages, Kingdom of Poland, municipal law, Jagiellonian University, Krakow Academy, university statutes, university jurisdiction, rector, rector’s court, Kazimierz Wielki, Władysław Jagiełło, canon law, Roman law, customary law, adversarial proceedings, evidence, oath, Kołłątaj reforms, Common law, natural law, justice, privilege, statute, constitution, Jagiellons, the Polish Kingdom, justice, suum cuique, Roman law, drama, Shakespeare, Mülle, Krakow University, Law College, constitution, professors, functions, Kingdom of England, the Polish-Lithuanian Commonwealth, Baltic trade, stamp duty for cloth