Papers by Tomislav Karlović
Problemas del derecho de familia, infancia y adolescencia: Reflexiones desde distintas experiencias jurídicas, 2023
El principio de consensualidad del matrimonio conlleva la cuestión fundamental del consentimiento... more El principio de consensualidad del matrimonio conlleva la cuestión fundamental del consentimiento: la relación entre el consentimiento interno y su expresión externa. Esta cuestión también refleja la tensión entre los principios de consensualidad y formalidad del matrimonio, tangible en primer lugar en los procedimientos de anulación del matrimonio. En este trabajo se discute el período de formación de la praesumptio iuris, según la cual las expresiones de consentimiento de los cónyuges se consideran válidas y corresponden a su verdadera voluntad hasta que se demuestre lo contrario durante la Edad Media.
Hrvatsko obvezno pravo u poredbenopravnom kontekstu, 2022
In the legal doctrine, it is rather frequently discussed on the effects of changed circumstances ... more In the legal doctrine, it is rather frequently discussed on the effects of changed circumstances on contractual obligations. Within the scope of these considerations it is often signaled to the medieval origins of the concept of clausula rebus sic stantibus, however, the foundations and the early course of development can remain not fully appreciated. Considering the different approaches to the role and influence of changed circumstances in comparative law, as well as to the definition of clausula, in this paper it is investigated in more detail the medieval foundations of clausula rebus sic se habentibus, later clausula rebus sic stantibus, as a general institute of the law of obligations.
After the introduction, in the first part it is analysed into the sources of canon law, starting with the St. Augustine’s text taken as C. 22, q. 2, c. 14 in Decretum Gratiani, and followed by the exposition of the issue presented in the second paragraph of said chapter, duty to return the sword to mentally ill (furens). It is elaborated how the authors of Summae Decretorum¸ having the advantage over glossators of the unequivocal source giving the right to withdraw from the duty (obligation) if the circumstances change, concentrated on the words non cogitabat iz C. 22, q. 2, c. 14 in close connection with the implied condition (tacita condicio) which would justify from breaking the oath (iuramentum). It is stressed that the text of C. 22, q. 2, c. 14 has already allowed for a general application of implied condition during the late 1170s, formulated somewhat later (1216/1217) by Johannes Teutonicus on the basis of D. 46, 3, 38 pr. in the phrase ‘si res in eodem statu manserit’. Also, this source was later backed by decretal c. Quaemadmodum [3 Comp. 2.15.11 = X. 2.24.25], in the gloss to which there is used the same phrase from African D. 46, 3, 38 pr. The inclusion of these words from African’s fragment seems quite understandable as they were also implied (tacita conventio), whereby they would fit in an already existing concept of tacita condicio quite well. Finally, with regard to the development in canon law, it is stressed that the formula ‘si res in eodem statu manserit’ was also taken over by Hostiensis in his Summa Aurea confirming its place in canon law.
In the following chapter it is discussed the development of clausula-idea in civil law, i.e. by glossators and commentators. In the first subchapter it is expounded on the use of D. 46, 3, 38 pr. in the works of glossators, where, contrary to the effects in canon law it did not yield the same results. First, there are analysed Quaestiones Sabbatinae by Pillius Medicinensis, questions 79 (31) and 35 (77), the following one being omitted from earlier studies of clausula although it clearly states as one of contra arguments „si in eodem statu, et eadem bonitate permanserit“. Also, it is studied into the question 25 of Quaestiones by Roffredus, comprising the words „Item quando ego promisi quod darem pro decem minus videtur tacite actum inter nos si res maneret in eodem statu. Nam et hoc generaliter contingit.” which would point to the D. 46, 3, 38 pr., although it is not explicitly referred to. In both of these works, however, the solution is against to the party invoking the argument ‘si res in eodem statu manserit’. The contract and what was agreed at the beginning was more important. Additionally, it is argued that in both Quaestiones, and especially Roffredus’, formula ‘si res in eodem statu manserit’ is having a general meaning, i.e. it is used as a general argument, even though it was not the winning, what can be also a reason that another source prevailed in civil law, the gloss to D. 12, 4, 8.
In the second subchapter it is first elaborated on Azo’s gloss (pervenire) potest to D. 12, 4, 8, what is followed by the analysis of Bartolus’ and Baldus’ interpretations and developments of the words, later in Baldus clausula, rebus sic se habentibus. The contents of D. 12, 4, 8 are first elucidated as it is a fragment that is at first sight not as easily relatable to the later clausula-concept as D. 46, 3, 38 pr. The question is the one of enduring causa, specifically when the dowry is given in the expectancy of a marriage, and until when it can be considered to be possible to achieve it, or when can it be said that it failed so the dowry can be claimed back by condictio. Key issue is the determination of the words potest, meaning that the transferred property can become dowry. Azo first stated that dialectics, whereby it is proposed that it would refer to Abelard and his school with references to his commentary on Peri hermeneias (as part of Logica ingredientibus) and his Dialectica, interpreted potest as possible est, what would entail possibility to enter into a marriage as long as they both live. This could be construed, in dialectical manner, in a sense that in the future both options are possible, contingent (that they can marry and not). On the other side, Azo thought that potest should be judged only by present time and the existing betrothals. He said that the situation is decided as things are, rebus sic se habentibus, what could be a reflection on dialectical mode possibile.
It is further elaborated on the contribution of Bartolus de Saxoferrato who developed the conclusions from Azo’s gloss in the sense that in the declaration of will it is understood that it is given is given rebus sic se habentibus, as things are and if things remain the same. The latter part of the proposition is recognizible in Bartolus’s Quaestiones Aureae where he stated, in the context of the contract for the lease of land, „Et alibi verbum poterit intelligitur rebus sic se habentibus et eodem statu durante“, meaning also that he acknowledged the general implications of these words. Baldus de Ubaldis further accelerated the evolution of concept rebus sic se habentibus by clear formulation of the rule and its wide (universal) application, as well as by connecting the two strands of development in civil and canon law. One of the results of that synthesis could be the introduction of word clausula in the phrase clausula rebus sic se habentibus in the commentary to C. 6, 42, 19, what would be in line with his explanation of condicio tacita in the commentary to X. 2.24.25 by following words „quando lex exprimit conditionem, sed non homo“, also taking into accaount that it is used together with iuramentum, the oath that was the object of canon law discussions.
Concerning the contemporary development of clausula rebus sic stantibus, from this first, formative phase of the institute, it is concluded that both the subjective, emphasizing the will of the parties, and objective, based on hardship, approaches are rooted in the medieval sources which are often intertwined between two laws. In canon law, however, prevailed the concept founded on presumed will and implied condition, tacita condicio. On the other side, in civil law as construed by commentators on the basis of Azo’s gloss, the important element was term subintelligitur, the clause being implicitly included, and the interpretation of word potest giving a more objective, neutral criterium.
Liber amicorum Zoran Parać, 2022
Acknowledgement of consensual contracts was essential for the development of Roman law of obligat... more Acknowledgement of consensual contracts was essential for the development of Roman law of obligations and for its reception in the Middle Ages, as well as for the further development of the law of obligations in legal systems based on the Roman legal tradition. One of the important features and novelties of these contracts, which the Roman jurists emphasized repeatedly, was the possibility to enter into a contract inter absentes, However, the moment when the contract was concluded and the effects of declarations of wills between absent parties were not discussed in more detail and consequently are not elaborated in the literature. In an effort to give some answers and elucidate these issues, the responses of Roman classical jurists dealing in general with the effects of declarations of wills between absent parties are analysed in the paper. The preserved sources primarily deal with the renunciation of contract, so they are in the focus of investigation, but as the relationship between the will, the declaration of will and its effects should be the same, it is believed that the conclusions drawn thereof can be analogously used for the conclusion as well.
Zbornik radova Pravnog fakulteta u Splitu, 2022
In this paper, it is discussed the issue of legal nature of actio fiduciae and the construction o... more In this paper, it is discussed the issue of legal nature of actio fiduciae and the construction of the
formula of this lawsuit in Roman law. First part of the paper deals with the problem of legal nature of
the action, whereby the contrary theses – whether it was in ius or in factum concepta, or there were
both formulas – are critically analysed. After elaborating the arguments for the sole existence of
one, in ius formula, the second part of the paper focuses on the three general models and the modes
of incorporation of words „ut inter bonos bene agier oportet“ within its text. This is followed by the
author’s proposal of the construction of formula of the actio fiduciae and the concluding remarks.
Jahrbuch Junge Rechtsgeschichte
... the Roman legal culture was in fact legal and ethnical fortification of the Empire which sinc... more ... the Roman legal culture was in fact legal and ethnical fortification of the Empire which since Emperor Augustus experienced the problem of low ... It can be perceived that diplomas served to suppress polygamy (poliginy) since only one wife became a lawful wife, and for those who ...
Pravni vjesnik, 2021
U radu se raspravlja o sadržaju i značenju Ulpijanova teksta d. 19, 2, 9, 3 u analizi problema po... more U radu se raspravlja o sadržaju i značenju Ulpijanova teksta d. 19, 2, 9, 3 u analizi problema podjele rizika kod ugovora o zakupu i položaju požara među različitim pojavama koje se u rimskim pravnim izvorima navode kao oblici više sile. U okviru razmatranja naknadne nemogućnosti ispunjenja činidbe kod locatio conductio (rei), tekst d. 19, 2, 9, 3 ističe se kao jedini u vezi s locatio fundi u kojem se spominje periculum, no koji je opterećen problemom suprotstavljenih tumačenja. U radu se polazi od raščlambe predmetnog teksta te ga se postavlja u kontekst drugih fragmenata u kojima su rimski pravnici izložili rješenja u vezi sa štetom od požara kod zakupa koji su analizirani u radu. Zaključno se iznose stavovi o sadržaju i funkciji teksta te diferenciranom pristupu požaru kao obliku više sile.
Dokaz o ništavosti ženidbe, 2021
The author in this paper (written in Croatian language) deals with the historical development of ... more The author in this paper (written in Croatian language) deals with the historical development of presumptions as a form of proof in the ancient Rome, i.e. in the works of Roman rhetors and in the late imperial and Justinanic legislation, and in the early stages of the development of legal science in the Europe during the second half of the 12th and first half of the 13th Century. It is investigated how the presumptions acquired their contours and the specific content, in general and in special subdivisions, in the interchange between the jurists of civil law and canon law. It is concluded that the core of their definitions remains the same today, in civil law and in canon law. This is followed by the analysis of the regulation of presumptions in Codices Iuris Canonici from 1917 and 1983 and later changes, especially in Dignitas Connubii. Since the main field of application of presumptions in canon law proceedings are the cases to declare the nullity of marriage, it is furthermore elaborated on the specific presumptions, especially praesumptiones iuris, related to marriage and their role in the proceedings.
Godišnjak Akademije pravnih znanosti Hrvatske, 2020
U radu se obrađuje problem obuhvata i značenja prijenosa (fidi) fiduciae causa s obzirom na tekst... more U radu se obrađuje problem obuhvata i značenja prijenosa (fidi) fiduciae causa s obzirom na tekstove prema kojima je došlo do fiducijarnog prijenosa vlasništva s uključenom, kao međufazom ili konačnom fazom, svrhom darovanja. Analizirani su fragmenti iz Digesta za koje se u romanistici smatra da su se izvorno odnosili na fiduciju. Obrađeni su njihov sadržaj, način na koji je u njima izražena fiducijarna obveza te odnos te obveze i prava na tužbu koje je iz nje izviralo prema konačnoj svrsi prijenosa. Izdvojen je i raščlambi podvrgnut tekst D. 39, 5, 18 pr.-2 kao primjer negotium mixtum cum donatione, u kojem je posebno vidljiv odnos fiducijarne kauze i causae donationis. Na kraju je iznesen zaključak o položaju causae fiduciae prema drugim pravnim osnovama.
Legacies of the Crusades, ed. by T. K. Nielsen and K. Villads Jensen, OUTREMER 11, 2021
Usama ibn Munqidh described in an episode from Kitab al-I‘tibar the ransom of captives from Frank... more Usama ibn Munqidh described in an episode from Kitab al-I‘tibar the ransom of captives from Frankish warrior William Jiba in Acre. In their dealings with regard to one particular woman William demanded the ransom to be paid in accordance with the Roman legal rule periculum est emptoris. In this article it is elaborated on this legal rule of risk allocation in order to evaluate more generally the role and use of Roman law in the Kingdom of Jerusalem in the 12th and 13th centuries.
Studia Universitatis Babeş-Bolyai. Iurisprudentia, 2020
The issue of creditor’s rights in fiducia cum creditore after the debtor’s default is one of the ... more The issue of creditor’s rights in fiducia cum creditore after the debtor’s default is one of the central questions concerning the history and development of this form of real security in Roman law. Opposing views and the arguments put forward in the literature during the last decade are keeping the discussion alive. Although it may seem that the idea of the right to final acquisition of unburdened ownership by creditor on default (Verfall theory) is taking sway, there are still opinions in favor of the position acknowledging creditor only the right to hold the object until the debt was eventually paid (Bewahrung theory). In this paper, the problem is reconsidered taking into account the analysis of documents from Roman business practice, as well as the juristic opinions.
Zbornik radova Pravnog fakulteta u Splitu, 2020
(Article is in Croatian language.) In the context of studies concerned with the development of cl... more (Article is in Croatian language.) In the context of studies concerned with the development of clausula rebus sic stantibus, although acknowledging the fact that this legal institute was not present in Roman law, some Romanists have pointed out the remissio mercedis in the lease of land (locatio fundi) as the prominent example when the change of circumstances influenced the obligations of parties in Roman law. Starting with the general characteristics of the contract of lease and the obligations of the parties, the authors analyze in the central part of the paper the institute remissio mercedis and its basis, taking into account different opinions and arguments for its application. This is especially done from the viewpoint of changed circumstances, leading to the conclusion on the difference in the line of thought about the effects of changed circumstances in the Roman law remissio mercedis and in the medieval clausula rebus sic stantibus.
Zbornik Pravnog fakulteta u Zagrebu, 2020
The article (in Croatian language) discusses the issue of possible reception of Roman law in the ... more The article (in Croatian language) discusses the issue of possible reception of Roman law in the Crusader States, more specifically in the Kingdom of Jerusalem (1099-1291). Considering that the Crusades are relatively unknown in the field of Roman law, evidenced by a lack of studies by Roman law scholars, the basic notions of Crusades and Crusader States are explained in the introduction. This is followed by an examination of the legal system of the Kingdom of Jerusalem. It was based on the principle of personality and different ethnic/religious and social groups had their own specific sets of rules and courts to enforce them. Accordingly, these specific systems and their sources are explained with an emphasis on the law applying to the Crusaders, or as they were called – the Franks. The central part of the article includes a critical analysis of the status quaestionis concerning the reception of Roman law in Crusader laws in literature, especially in the fundamental source of law for the burgesses of the Kingdom of Jerusalem: Livre des Assises des Bourgeois. After an assessment of the present day status of the issue and the need for re-examination, in the conclusion the author suggests the avenues of further investigation of the topic.
Pravni vjesnik, 2020
The paper deals with the potential existence of sale on approval in pre-classical Ro... more The paper deals with the potential existence of sale on approval in pre-classical Roman law, based on the passage “dixit se redhibere, si non placeat” from Plaut’s comedy Mercator (TheMerchant). In the first part of the paper, the excerpt and the interpretation of the relevant part of the comedy are presented. The text is then analysed for the purpose of comparison with the characteristics of the classical pactum displicentiae as evidenced in the Digest, whereby Plaut’s fragment would constitute an evidence for the pre-classical origin of Roman sale on approval. In the ensuing analysis, the instruments of possible legal protection of pactum displicentiaeand their chronological relation are studied. More specifically, based on the reference to redhi-bere in Mercator and the use of actio in factum for sale on approval in later period, their possi-ble connection and the time of emergence of the edict of aediles curules and actio redhibitoria has been researched into. In conclusion, the arguments are put forward concerning the signi-ficance of Plaut’s fragment in establishing pre-classical origins of Roman sale on approval, as well as on the possible impact of the edict of curule aediles on the development of early legal protection of sale on approval.
Zbornik Pravnog fakulteta u Zagrebu, 2018
This paper concerns the powers given to the judge known under the term officium iudicis (deservie... more This paper concerns the powers given to the judge known under the term officium iudicis (deserviens) in the first, formative period of Romano-canonical procedure. It is emphasized that on the basis of Roman and canon law sources, legists and canonists, writers of ordines iudiciarii and ordines iudiciorum, gave judges rather wide competencies in case management. In addition to the actions and decisions judges could take to facilitate a speedy and cost-effective resolution of a case, the paper also expounds on the problems of supplere de iure and de facto and on the decision-making secundum allegata – secundum conscientiam, as well as on the issue of maintaining discipline in the courtroom. It is concluded that the problems of lengthy trials and party (advocate) abuses are a constant of civil procedure and that the contemporary efforts concerning active case management bear certain resemblance to the duties understood under the officium iudicis (deserviens) as envisaged by the writers of early procedural treatises.
U radu se obrađuje problem sadržaja officium iudicis (deserviens) u prvom, formativnom razdoblju razvoja rimsko-kanonskog postupka. Upućuje se na to da su na temelju rimskih pravnih izvora, kao i izvora kanonskog prava, legisti i kanonisti, pisci ordines iudiciarii, odnosno ordines iudiciorum, sudcu davali dosta široke ovlasti u upravljanju postupkom te se prikazuje navedene ovlasti. Uz obradu niza aktivnosti koje su sudci mogli poduzimati radi ubrzanja postupka, posebno su izloženi problemi supplere de iure i de facto te odlučivanja secundum allegata – secundum conscientiam, te discipline u sudnici. U zaključku se ističe konstanta glede problema s odugovlačenjem građanskog postupka te napora da se problemi riješe aktivnim djelovanjem sudaca, u vezi s čim se prepoznaju određene sličnosti u sadržaju officium iudicis (deserviens) i suvremenog (aktivnog) upravljanja postupkom.
Pravni vjesnik, 2018
The paper analyses in diem addictio, a provision for calling-off a sale in case that the seller wi... more The paper analyses in diem addictio, a provision for calling-off a sale in case that the seller will not receive and accept a better offer within a given time in Roman law. It is elaborated on a number of issues pertinent to in diem addictio, especially to the issue what constitutes a “better offer” and what obligations arise for the parties when the better offer is given. The second part of the paper discusses the possibility of including this provision in contemporary law of sales, specifically in selected legal systems – French, Austrian, German and Croatian law. It is concluded that, in addition to specific regulation of this provision in Austrian ABGB, other legal systems as well provide suitable and sufficient basis for the addition of this provision to the contract of sale, both in the form of suspensive and resolutive condition.
Zbornik radova Pravnog fakulteta u Splitu, 2018
(The article is in Croatian language.) Considering the main characteristics of fiducia in Roman l... more (The article is in Croatian language.) Considering the main characteristics of fiducia in Roman law, as well as its functions and place within the real property law and the law of obligations, two features that are also prominent in the definition of anglosaxon trust stand out. These are the fiduciary nature of the relationship between the interested parties, as fides (trust) formed the initial basis of both institutes in the period before they were legally recognized, and the transfer of ownership made for specific purpose, different from the regular enjoyment of the object by the owner. However, there is a significant difference between the two (fiducia and trust) becuase of the duality between common law and equity in English legal system. While the mutual interests of the parties to fiducia in Roman law were protected only by personal actions (actiones in personam), parties’ proprietary interests in English trust were (and still are) recognized with the parallel existence of legal and equitable title.
In contemporary Croatian law of real property the closest thing to the division of titles exists with regard to the conditionally transferred ownership as regulated in Art. 34 of Ownership and Other Proprietary Rights Act, entaling the division on prior and posterior ownership, both of which can be entered into Land registry and other registries. In the article it is analysed how this division and the following registration of both titles could allow for the effects to be given to trusts, in case it would be pondered on the benefits of accession of Croatia to the Hague Convention on the Law Applicable to Trusts and on their Recognition. Accordingly, after the exposition of Croatian law, it is given a short overview of English trust with emphasis on trusts of land and, subsequently, of the rules of the Hague Convention on the Law Applicable to Trusts and on their Recognition. In the conclusion it is argued that perceived incompatibility of trust with civilian legal system can be overcome in Croatia with the help of extant legal rules regarding conditionally transferred ownership. Also, this incompatibility has already been refuted in several European continental countries from which examples lessons should be studied and learned, what would be the next step in the deliberations on the accession to the Hague Convention on the Law Applicable to Trusts and on their Recognition.
Published in: Revisiting Procedural Human Rights / Uzelac, Alan ; van Rhee, C. H. (ur.). Cambridg... more Published in: Revisiting Procedural Human Rights / Uzelac, Alan ; van Rhee, C. H. (ur.). Cambridge, Antwerp, Portland: Intersentia, 2017. pp. 263-285
In this paper the author examines the role of rule against retroactivity, as one of basic legal principles, in civil procedure from the Roman law to the jurisprudence of European Court of Human Rights. It is centered on the analysis of rule tempus regit actum, starting from its development in the Middle Ages, on the basis of Roman legal texts, as the medieval authors started to elaborate procedural rules, ordinatoria litis, separately. In the discussions of these authors of pending legal affairs ordinatoria litis were expressly held to have immediate application in pending lawsuits. Although there were some breaks in continuity, taking into account the influence of the theory of vested rights in literature, the immediate application as a part of the prospective principle has remained the constitutive part of intertemporal rules in procedure. This has been equally well recognized in the case law of the European Court of Human Rights which is discussed in the last part (before the conclusion) of the paper.
Zbornik Pravnog fakulteta u Zagrebu, 2017
The aim of this paper is to examine the the issues of contents, i.e. main building blocks of acti... more The aim of this paper is to examine the the issues of contents, i.e. main building blocks of actio fiduciae mentioned in Ciceros’s text De officiis 3,17,70. In the introductory part the general features of actio fiduciae are presented. This is followed by an analysis of the clause “uti ne propter te fidemve tuam captus fraudatusve sim”, its function in the formula of actio fiduciae, actio de peculio et actio in rem verso, and the theories on its place and role before it was taken over into the formula. The author argues for the original inclusion of the clause in the transfer fidi fiduciae causa as a form of the “stipulatory subjunctive” sentence in accordance with Bennet’s theory on forms of subjunctive sentences. In the second part of the paper the analysis is concentrated on the elements of the clause “ut inter bonos bene agier oportet et sine fraudatione”, which has the same function in actio fiduciae as ex fide bona in other bonae fidei iudicia. Each part of the clause – boni viri, bene agier, sine fraudatione – is dealt with in more detail, especially with regard to their specific meaning and the authority they conveyed to the judge in the adjudication of actio fiduciae.
The second part of the 19th Century, marked by the differentiation in the German historical schoo... more The second part of the 19th Century, marked by the differentiation in the German historical school, has brought an intensified research in the sources of classical Roman law and the consequent endeavors to purify it from Tribonianisms. In the course of these developments one institute - fiducia, has emerged attracting special interest. Completely replaced in Corpus Iuris Civilis, by pignus and hypotheca in its form of real security, as a preclassical and classical institute it presented a true challenge for scholarly research. Burdened by the lack of coherent and complete sources, most of the existent from non-legal literature, it was the object of speculations and many dogmative constructions, remaining as such even today.
One of the key problems in defining its elements relates to the manner of payment, the satisfaction of the creditor after the debt was due. In the historical development, the dispute revolves about two questions. The first is marked by the clash of two antithetical groups of scholars defending either “Bewahrung” or “Verfall” theory - on the primary form of fiduciary’s authority. The second is the natural continuation into the classical age - on the position and the modalities of ius vendendi. The interpretation of evidence and analysis of other arguments in the paper will show the favorability of “Verfall” theories and also its compliance with the evolution of pactum de vendendo into tacita conditio of negotium.
In line with these remarks, the second part of the paper will investigate the parallels which exist in the contemporary Croatian law. In the regulation of the Law of Property and the Law of Enforcement, two approaches are visible as well. One is relying on the experience of German Sicherungsübereignung, with unconditional transfer of property and prevailing interests of creditors stressed by the possibility of forfeiture (final acquisition of the ownership by creditor), and the other emphasizing its subordination to the rules of pledge and conditional transfer with mandatory sale of the object of fiducia. Both the advantages and the shortcomings of every approach are analyzed, in the end with the proposal of synthetic perspective, taking into the account both scholar and pragmatical, business, considerations. The conclusion is that without the possibility of forfeiture (Verfall) fiducia is superfluous. Regarding its creation in the form of Sicherungsübereignung to overcome the ban of non-possessory pledge on chattels in Germany the gap has been long closed. Furthermore, the closure was brought on the issue of publicity of the security on the movables by the enactment of Law on Registry of the court and notary security interests over movables and rights. Thus, also observing the comparative experiences, the attempt has been made, safekeeping the important elements of Roman fiducia, to adjust it to the modern needs while at the same time use the possibilities of land registration for the protection of weaker side.
This paper discusses the structure of local selfgovernment in the Flavian municipium of Andautoni... more This paper discusses the structure of local selfgovernment in the Flavian municipium of Andautonia. In the first part, the general concept of municipia is explained. After that, different aspects are discussed, especially the strategic position of Andautonia within the Roman network of roads and river ports, as well as its supposed establishment in the 70's AD, during the reign of Flavian emperors. With respect to the question of granting municipal status under the Flavians, the paper elaborates on various sources which are also applicable to Andautonia. The central part of the paper presents the organization and competences of local selfgovernment bodies. On the basis of analysis of municipal organization, the paper concludes about a double function of local self-government: giving local population a possibility of selfgovernment which ensured peace in the provinces and transpositioning of Roman governmental structure which facilitated Romanization and integration of local community.
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Papers by Tomislav Karlović
After the introduction, in the first part it is analysed into the sources of canon law, starting with the St. Augustine’s text taken as C. 22, q. 2, c. 14 in Decretum Gratiani, and followed by the exposition of the issue presented in the second paragraph of said chapter, duty to return the sword to mentally ill (furens). It is elaborated how the authors of Summae Decretorum¸ having the advantage over glossators of the unequivocal source giving the right to withdraw from the duty (obligation) if the circumstances change, concentrated on the words non cogitabat iz C. 22, q. 2, c. 14 in close connection with the implied condition (tacita condicio) which would justify from breaking the oath (iuramentum). It is stressed that the text of C. 22, q. 2, c. 14 has already allowed for a general application of implied condition during the late 1170s, formulated somewhat later (1216/1217) by Johannes Teutonicus on the basis of D. 46, 3, 38 pr. in the phrase ‘si res in eodem statu manserit’. Also, this source was later backed by decretal c. Quaemadmodum [3 Comp. 2.15.11 = X. 2.24.25], in the gloss to which there is used the same phrase from African D. 46, 3, 38 pr. The inclusion of these words from African’s fragment seems quite understandable as they were also implied (tacita conventio), whereby they would fit in an already existing concept of tacita condicio quite well. Finally, with regard to the development in canon law, it is stressed that the formula ‘si res in eodem statu manserit’ was also taken over by Hostiensis in his Summa Aurea confirming its place in canon law.
In the following chapter it is discussed the development of clausula-idea in civil law, i.e. by glossators and commentators. In the first subchapter it is expounded on the use of D. 46, 3, 38 pr. in the works of glossators, where, contrary to the effects in canon law it did not yield the same results. First, there are analysed Quaestiones Sabbatinae by Pillius Medicinensis, questions 79 (31) and 35 (77), the following one being omitted from earlier studies of clausula although it clearly states as one of contra arguments „si in eodem statu, et eadem bonitate permanserit“. Also, it is studied into the question 25 of Quaestiones by Roffredus, comprising the words „Item quando ego promisi quod darem pro decem minus videtur tacite actum inter nos si res maneret in eodem statu. Nam et hoc generaliter contingit.” which would point to the D. 46, 3, 38 pr., although it is not explicitly referred to. In both of these works, however, the solution is against to the party invoking the argument ‘si res in eodem statu manserit’. The contract and what was agreed at the beginning was more important. Additionally, it is argued that in both Quaestiones, and especially Roffredus’, formula ‘si res in eodem statu manserit’ is having a general meaning, i.e. it is used as a general argument, even though it was not the winning, what can be also a reason that another source prevailed in civil law, the gloss to D. 12, 4, 8.
In the second subchapter it is first elaborated on Azo’s gloss (pervenire) potest to D. 12, 4, 8, what is followed by the analysis of Bartolus’ and Baldus’ interpretations and developments of the words, later in Baldus clausula, rebus sic se habentibus. The contents of D. 12, 4, 8 are first elucidated as it is a fragment that is at first sight not as easily relatable to the later clausula-concept as D. 46, 3, 38 pr. The question is the one of enduring causa, specifically when the dowry is given in the expectancy of a marriage, and until when it can be considered to be possible to achieve it, or when can it be said that it failed so the dowry can be claimed back by condictio. Key issue is the determination of the words potest, meaning that the transferred property can become dowry. Azo first stated that dialectics, whereby it is proposed that it would refer to Abelard and his school with references to his commentary on Peri hermeneias (as part of Logica ingredientibus) and his Dialectica, interpreted potest as possible est, what would entail possibility to enter into a marriage as long as they both live. This could be construed, in dialectical manner, in a sense that in the future both options are possible, contingent (that they can marry and not). On the other side, Azo thought that potest should be judged only by present time and the existing betrothals. He said that the situation is decided as things are, rebus sic se habentibus, what could be a reflection on dialectical mode possibile.
It is further elaborated on the contribution of Bartolus de Saxoferrato who developed the conclusions from Azo’s gloss in the sense that in the declaration of will it is understood that it is given is given rebus sic se habentibus, as things are and if things remain the same. The latter part of the proposition is recognizible in Bartolus’s Quaestiones Aureae where he stated, in the context of the contract for the lease of land, „Et alibi verbum poterit intelligitur rebus sic se habentibus et eodem statu durante“, meaning also that he acknowledged the general implications of these words. Baldus de Ubaldis further accelerated the evolution of concept rebus sic se habentibus by clear formulation of the rule and its wide (universal) application, as well as by connecting the two strands of development in civil and canon law. One of the results of that synthesis could be the introduction of word clausula in the phrase clausula rebus sic se habentibus in the commentary to C. 6, 42, 19, what would be in line with his explanation of condicio tacita in the commentary to X. 2.24.25 by following words „quando lex exprimit conditionem, sed non homo“, also taking into accaount that it is used together with iuramentum, the oath that was the object of canon law discussions.
Concerning the contemporary development of clausula rebus sic stantibus, from this first, formative phase of the institute, it is concluded that both the subjective, emphasizing the will of the parties, and objective, based on hardship, approaches are rooted in the medieval sources which are often intertwined between two laws. In canon law, however, prevailed the concept founded on presumed will and implied condition, tacita condicio. On the other side, in civil law as construed by commentators on the basis of Azo’s gloss, the important element was term subintelligitur, the clause being implicitly included, and the interpretation of word potest giving a more objective, neutral criterium.
formula of this lawsuit in Roman law. First part of the paper deals with the problem of legal nature of
the action, whereby the contrary theses – whether it was in ius or in factum concepta, or there were
both formulas – are critically analysed. After elaborating the arguments for the sole existence of
one, in ius formula, the second part of the paper focuses on the three general models and the modes
of incorporation of words „ut inter bonos bene agier oportet“ within its text. This is followed by the
author’s proposal of the construction of formula of the actio fiduciae and the concluding remarks.
U radu se obrađuje problem sadržaja officium iudicis (deserviens) u prvom, formativnom razdoblju razvoja rimsko-kanonskog postupka. Upućuje se na to da su na temelju rimskih pravnih izvora, kao i izvora kanonskog prava, legisti i kanonisti, pisci ordines iudiciarii, odnosno ordines iudiciorum, sudcu davali dosta široke ovlasti u upravljanju postupkom te se prikazuje navedene ovlasti. Uz obradu niza aktivnosti koje su sudci mogli poduzimati radi ubrzanja postupka, posebno su izloženi problemi supplere de iure i de facto te odlučivanja secundum allegata – secundum conscientiam, te discipline u sudnici. U zaključku se ističe konstanta glede problema s odugovlačenjem građanskog postupka te napora da se problemi riješe aktivnim djelovanjem sudaca, u vezi s čim se prepoznaju određene sličnosti u sadržaju officium iudicis (deserviens) i suvremenog (aktivnog) upravljanja postupkom.
In contemporary Croatian law of real property the closest thing to the division of titles exists with regard to the conditionally transferred ownership as regulated in Art. 34 of Ownership and Other Proprietary Rights Act, entaling the division on prior and posterior ownership, both of which can be entered into Land registry and other registries. In the article it is analysed how this division and the following registration of both titles could allow for the effects to be given to trusts, in case it would be pondered on the benefits of accession of Croatia to the Hague Convention on the Law Applicable to Trusts and on their Recognition. Accordingly, after the exposition of Croatian law, it is given a short overview of English trust with emphasis on trusts of land and, subsequently, of the rules of the Hague Convention on the Law Applicable to Trusts and on their Recognition. In the conclusion it is argued that perceived incompatibility of trust with civilian legal system can be overcome in Croatia with the help of extant legal rules regarding conditionally transferred ownership. Also, this incompatibility has already been refuted in several European continental countries from which examples lessons should be studied and learned, what would be the next step in the deliberations on the accession to the Hague Convention on the Law Applicable to Trusts and on their Recognition.
In this paper the author examines the role of rule against retroactivity, as one of basic legal principles, in civil procedure from the Roman law to the jurisprudence of European Court of Human Rights. It is centered on the analysis of rule tempus regit actum, starting from its development in the Middle Ages, on the basis of Roman legal texts, as the medieval authors started to elaborate procedural rules, ordinatoria litis, separately. In the discussions of these authors of pending legal affairs ordinatoria litis were expressly held to have immediate application in pending lawsuits. Although there were some breaks in continuity, taking into account the influence of the theory of vested rights in literature, the immediate application as a part of the prospective principle has remained the constitutive part of intertemporal rules in procedure. This has been equally well recognized in the case law of the European Court of Human Rights which is discussed in the last part (before the conclusion) of the paper.
One of the key problems in defining its elements relates to the manner of payment, the satisfaction of the creditor after the debt was due. In the historical development, the dispute revolves about two questions. The first is marked by the clash of two antithetical groups of scholars defending either “Bewahrung” or “Verfall” theory - on the primary form of fiduciary’s authority. The second is the natural continuation into the classical age - on the position and the modalities of ius vendendi. The interpretation of evidence and analysis of other arguments in the paper will show the favorability of “Verfall” theories and also its compliance with the evolution of pactum de vendendo into tacita conditio of negotium.
In line with these remarks, the second part of the paper will investigate the parallels which exist in the contemporary Croatian law. In the regulation of the Law of Property and the Law of Enforcement, two approaches are visible as well. One is relying on the experience of German Sicherungsübereignung, with unconditional transfer of property and prevailing interests of creditors stressed by the possibility of forfeiture (final acquisition of the ownership by creditor), and the other emphasizing its subordination to the rules of pledge and conditional transfer with mandatory sale of the object of fiducia. Both the advantages and the shortcomings of every approach are analyzed, in the end with the proposal of synthetic perspective, taking into the account both scholar and pragmatical, business, considerations. The conclusion is that without the possibility of forfeiture (Verfall) fiducia is superfluous. Regarding its creation in the form of Sicherungsübereignung to overcome the ban of non-possessory pledge on chattels in Germany the gap has been long closed. Furthermore, the closure was brought on the issue of publicity of the security on the movables by the enactment of Law on Registry of the court and notary security interests over movables and rights. Thus, also observing the comparative experiences, the attempt has been made, safekeeping the important elements of Roman fiducia, to adjust it to the modern needs while at the same time use the possibilities of land registration for the protection of weaker side.
After the introduction, in the first part it is analysed into the sources of canon law, starting with the St. Augustine’s text taken as C. 22, q. 2, c. 14 in Decretum Gratiani, and followed by the exposition of the issue presented in the second paragraph of said chapter, duty to return the sword to mentally ill (furens). It is elaborated how the authors of Summae Decretorum¸ having the advantage over glossators of the unequivocal source giving the right to withdraw from the duty (obligation) if the circumstances change, concentrated on the words non cogitabat iz C. 22, q. 2, c. 14 in close connection with the implied condition (tacita condicio) which would justify from breaking the oath (iuramentum). It is stressed that the text of C. 22, q. 2, c. 14 has already allowed for a general application of implied condition during the late 1170s, formulated somewhat later (1216/1217) by Johannes Teutonicus on the basis of D. 46, 3, 38 pr. in the phrase ‘si res in eodem statu manserit’. Also, this source was later backed by decretal c. Quaemadmodum [3 Comp. 2.15.11 = X. 2.24.25], in the gloss to which there is used the same phrase from African D. 46, 3, 38 pr. The inclusion of these words from African’s fragment seems quite understandable as they were also implied (tacita conventio), whereby they would fit in an already existing concept of tacita condicio quite well. Finally, with regard to the development in canon law, it is stressed that the formula ‘si res in eodem statu manserit’ was also taken over by Hostiensis in his Summa Aurea confirming its place in canon law.
In the following chapter it is discussed the development of clausula-idea in civil law, i.e. by glossators and commentators. In the first subchapter it is expounded on the use of D. 46, 3, 38 pr. in the works of glossators, where, contrary to the effects in canon law it did not yield the same results. First, there are analysed Quaestiones Sabbatinae by Pillius Medicinensis, questions 79 (31) and 35 (77), the following one being omitted from earlier studies of clausula although it clearly states as one of contra arguments „si in eodem statu, et eadem bonitate permanserit“. Also, it is studied into the question 25 of Quaestiones by Roffredus, comprising the words „Item quando ego promisi quod darem pro decem minus videtur tacite actum inter nos si res maneret in eodem statu. Nam et hoc generaliter contingit.” which would point to the D. 46, 3, 38 pr., although it is not explicitly referred to. In both of these works, however, the solution is against to the party invoking the argument ‘si res in eodem statu manserit’. The contract and what was agreed at the beginning was more important. Additionally, it is argued that in both Quaestiones, and especially Roffredus’, formula ‘si res in eodem statu manserit’ is having a general meaning, i.e. it is used as a general argument, even though it was not the winning, what can be also a reason that another source prevailed in civil law, the gloss to D. 12, 4, 8.
In the second subchapter it is first elaborated on Azo’s gloss (pervenire) potest to D. 12, 4, 8, what is followed by the analysis of Bartolus’ and Baldus’ interpretations and developments of the words, later in Baldus clausula, rebus sic se habentibus. The contents of D. 12, 4, 8 are first elucidated as it is a fragment that is at first sight not as easily relatable to the later clausula-concept as D. 46, 3, 38 pr. The question is the one of enduring causa, specifically when the dowry is given in the expectancy of a marriage, and until when it can be considered to be possible to achieve it, or when can it be said that it failed so the dowry can be claimed back by condictio. Key issue is the determination of the words potest, meaning that the transferred property can become dowry. Azo first stated that dialectics, whereby it is proposed that it would refer to Abelard and his school with references to his commentary on Peri hermeneias (as part of Logica ingredientibus) and his Dialectica, interpreted potest as possible est, what would entail possibility to enter into a marriage as long as they both live. This could be construed, in dialectical manner, in a sense that in the future both options are possible, contingent (that they can marry and not). On the other side, Azo thought that potest should be judged only by present time and the existing betrothals. He said that the situation is decided as things are, rebus sic se habentibus, what could be a reflection on dialectical mode possibile.
It is further elaborated on the contribution of Bartolus de Saxoferrato who developed the conclusions from Azo’s gloss in the sense that in the declaration of will it is understood that it is given is given rebus sic se habentibus, as things are and if things remain the same. The latter part of the proposition is recognizible in Bartolus’s Quaestiones Aureae where he stated, in the context of the contract for the lease of land, „Et alibi verbum poterit intelligitur rebus sic se habentibus et eodem statu durante“, meaning also that he acknowledged the general implications of these words. Baldus de Ubaldis further accelerated the evolution of concept rebus sic se habentibus by clear formulation of the rule and its wide (universal) application, as well as by connecting the two strands of development in civil and canon law. One of the results of that synthesis could be the introduction of word clausula in the phrase clausula rebus sic se habentibus in the commentary to C. 6, 42, 19, what would be in line with his explanation of condicio tacita in the commentary to X. 2.24.25 by following words „quando lex exprimit conditionem, sed non homo“, also taking into accaount that it is used together with iuramentum, the oath that was the object of canon law discussions.
Concerning the contemporary development of clausula rebus sic stantibus, from this first, formative phase of the institute, it is concluded that both the subjective, emphasizing the will of the parties, and objective, based on hardship, approaches are rooted in the medieval sources which are often intertwined between two laws. In canon law, however, prevailed the concept founded on presumed will and implied condition, tacita condicio. On the other side, in civil law as construed by commentators on the basis of Azo’s gloss, the important element was term subintelligitur, the clause being implicitly included, and the interpretation of word potest giving a more objective, neutral criterium.
formula of this lawsuit in Roman law. First part of the paper deals with the problem of legal nature of
the action, whereby the contrary theses – whether it was in ius or in factum concepta, or there were
both formulas – are critically analysed. After elaborating the arguments for the sole existence of
one, in ius formula, the second part of the paper focuses on the three general models and the modes
of incorporation of words „ut inter bonos bene agier oportet“ within its text. This is followed by the
author’s proposal of the construction of formula of the actio fiduciae and the concluding remarks.
U radu se obrađuje problem sadržaja officium iudicis (deserviens) u prvom, formativnom razdoblju razvoja rimsko-kanonskog postupka. Upućuje se na to da su na temelju rimskih pravnih izvora, kao i izvora kanonskog prava, legisti i kanonisti, pisci ordines iudiciarii, odnosno ordines iudiciorum, sudcu davali dosta široke ovlasti u upravljanju postupkom te se prikazuje navedene ovlasti. Uz obradu niza aktivnosti koje su sudci mogli poduzimati radi ubrzanja postupka, posebno su izloženi problemi supplere de iure i de facto te odlučivanja secundum allegata – secundum conscientiam, te discipline u sudnici. U zaključku se ističe konstanta glede problema s odugovlačenjem građanskog postupka te napora da se problemi riješe aktivnim djelovanjem sudaca, u vezi s čim se prepoznaju određene sličnosti u sadržaju officium iudicis (deserviens) i suvremenog (aktivnog) upravljanja postupkom.
In contemporary Croatian law of real property the closest thing to the division of titles exists with regard to the conditionally transferred ownership as regulated in Art. 34 of Ownership and Other Proprietary Rights Act, entaling the division on prior and posterior ownership, both of which can be entered into Land registry and other registries. In the article it is analysed how this division and the following registration of both titles could allow for the effects to be given to trusts, in case it would be pondered on the benefits of accession of Croatia to the Hague Convention on the Law Applicable to Trusts and on their Recognition. Accordingly, after the exposition of Croatian law, it is given a short overview of English trust with emphasis on trusts of land and, subsequently, of the rules of the Hague Convention on the Law Applicable to Trusts and on their Recognition. In the conclusion it is argued that perceived incompatibility of trust with civilian legal system can be overcome in Croatia with the help of extant legal rules regarding conditionally transferred ownership. Also, this incompatibility has already been refuted in several European continental countries from which examples lessons should be studied and learned, what would be the next step in the deliberations on the accession to the Hague Convention on the Law Applicable to Trusts and on their Recognition.
In this paper the author examines the role of rule against retroactivity, as one of basic legal principles, in civil procedure from the Roman law to the jurisprudence of European Court of Human Rights. It is centered on the analysis of rule tempus regit actum, starting from its development in the Middle Ages, on the basis of Roman legal texts, as the medieval authors started to elaborate procedural rules, ordinatoria litis, separately. In the discussions of these authors of pending legal affairs ordinatoria litis were expressly held to have immediate application in pending lawsuits. Although there were some breaks in continuity, taking into account the influence of the theory of vested rights in literature, the immediate application as a part of the prospective principle has remained the constitutive part of intertemporal rules in procedure. This has been equally well recognized in the case law of the European Court of Human Rights which is discussed in the last part (before the conclusion) of the paper.
One of the key problems in defining its elements relates to the manner of payment, the satisfaction of the creditor after the debt was due. In the historical development, the dispute revolves about two questions. The first is marked by the clash of two antithetical groups of scholars defending either “Bewahrung” or “Verfall” theory - on the primary form of fiduciary’s authority. The second is the natural continuation into the classical age - on the position and the modalities of ius vendendi. The interpretation of evidence and analysis of other arguments in the paper will show the favorability of “Verfall” theories and also its compliance with the evolution of pactum de vendendo into tacita conditio of negotium.
In line with these remarks, the second part of the paper will investigate the parallels which exist in the contemporary Croatian law. In the regulation of the Law of Property and the Law of Enforcement, two approaches are visible as well. One is relying on the experience of German Sicherungsübereignung, with unconditional transfer of property and prevailing interests of creditors stressed by the possibility of forfeiture (final acquisition of the ownership by creditor), and the other emphasizing its subordination to the rules of pledge and conditional transfer with mandatory sale of the object of fiducia. Both the advantages and the shortcomings of every approach are analyzed, in the end with the proposal of synthetic perspective, taking into the account both scholar and pragmatical, business, considerations. The conclusion is that without the possibility of forfeiture (Verfall) fiducia is superfluous. Regarding its creation in the form of Sicherungsübereignung to overcome the ban of non-possessory pledge on chattels in Germany the gap has been long closed. Furthermore, the closure was brought on the issue of publicity of the security on the movables by the enactment of Law on Registry of the court and notary security interests over movables and rights. Thus, also observing the comparative experiences, the attempt has been made, safekeeping the important elements of Roman fiducia, to adjust it to the modern needs while at the same time use the possibilities of land registration for the protection of weaker side.
The presentation was held at 71ème Session de la Société Internationale Fernand De Visscher pour l’Histoire des Droits de l’Antiquité (SIHDA), "Liberté et interdictions dans les droits de l’antiquité", 12 au 16 Septembre 2017.
In the legal doctrine, it is rather frequently discussed on the effects of changed circumstances on contractual obligations. Within the scope of these considerations the authors often signal to the medieval origins of the concept of clausula rebus sic stantibus, however, the foundations and the early course of development usually remain either unspecified or unrecognized. Considering the different approaches to the role and influence of changed circumstances in comparative law, viz. prevalence of the subjective or the objective elements in defining the prerequisites for the application of clausula and similar institutes, it seems justified to study in more detail the basis and the reasons behind the creation of clausula rebus sic se habentibus, later stantibus, as a general institute of the law of obligations. In this presentation, the first part concerns the historical origins of the concept, highlighting the positions taken by the Decretists, Glossators and Commentators and the sources they used in the elaboration of the institute. Advancing into the comparative-legal study, it is further dealt with different contemporary institutes regulating the effects of changed circumstances. The focus is on the reintroduction of the clausula-idea in Europe in the 21st Century with special emphasis on German and French Civil codes because of their wider infleunce and attractive power, in scholarly as well as in practical considerations. The attention is also given to the institute of the modification or dissolution of contracts because of the changed circumstances in Croatian law, specifically set in the comparative-legal context.