latin american law last updated 07 sep 11 medieval law > canon law > law merchant
TRANSCRIPT
Classic Roman Law(100AD - 300 AD)
Swiss Civil Code(1907)
Austrian Civil Law(1812)
Louisiana
Civil Code
(1808)
German Civil Code (1900)
French Civil Code (1804)
Turkish Civil Code(1926)
Italian Civil Code (1942)
Japanese Civil Code(early 1900s)
US Law
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
• Model for borrowing
• Gain perspective
• Discover truths
• Impose / power
Value of knowing other legal systems
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
Canonists - commentators • Academics• Scholastic method
Natural law
Papal decretals
Canons of church councils
Bible
Corpus iuris canonici(marriage, succession, crimes)
• Concordantia discordantium canonum (Decretum) , compiled by Gratian, 1140
• Decretals of later popes (Boniface VIII, Clement V, John XXII)
Roman law
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 LatAm less boundby religion compared to US?
Needs of merchants
Commercialcustoms
Commercial codes(ex acqueo et bono)
Merchant tribunals• Expert judges• Expeditious procedures• Equal treatment to outsiders
Venice
Amalfi
Genoa
Barcelona
Law Merchant
Pisa
William Murray, 1st 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?
Delaware(corporate law)
NCBusinessCourt.net
Venice(law merchant)
But where did corporate structure come from?
Jim Rodden: how many US states have business courts?
Law merchant LatAm 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
I find it unsurprising that merchants would develop self-governing laws in Medieval times
or in the present day.
Lauren Connell
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