Plan of this Casebook
Rather than expounding the subject of Roman property law as a collection of doctrines and rules, this casebook presents the reader with excerpts of Roman legal argument to illustrate the articulation and application of law to specific factsituations.
“Cases,” consisting of brief excerpts from Roman juristic sources, are selected and grouped with a view to providing both an overview of the particular topic and an opportunity to explore its elements. The authors attach to each case a set of questions that invite the reader to, e.g., justify an argument, reconcile one holding with another, supply missing but necessary facts to account for a holding, and/or engage in other analytical activities. For the initial cases and occasionally thereafter, model answers are provided for the questions that have been posed. The goal behind all the questions, however, is to stimulate critical examination of rules and policies and to invite consideration of how such rules and policies might operate under other plausible circumstances.In addition to covering the substance of Roman property law, this casebook aims to illustrate the survival and adaptation of elements of that law in selected modern European civil codes. This is accomplished by the authors' quotation of excerpts from, principally, three of the most important of those codes: the General Civil Code of Austria (Allgemeines Bürgerliches Gesetzbuch, abbreviated as ABGB), the German Civil Code (Bürgerliches Gesetzbuch, abbreviated as BGB), and the Civil Code of Switzerland (Zivilgesetzbuch, abbreviated as ZGB). The ABGB was adopted in 1812 and is, among the codes currently in force, second in date of adoption only to the French Civil Code enacted under Napoleon in 1804. In origin, however, it was the product of a much longer period of development than the French Civil Code and was more thoroughly rooted than the latter in the spirit of the Enlightenment. In his book on the Austrian legal system, Hausmaninger notes that “the ABGB reflects the ideology of rationalist Natural law in its latest phase, and contains much Roman law substance.
It is a brief, clear, and flexible code containing general principles that permit later adaptation by scholars and judges.”[8] He contrasts the Austrian Code with the later German and Swiss civil codes. Both of the latter reflect the influence of 19th-century German legal scholarship. “The defining characteristics of the BGB,” writes Hausmaninger (p. 312), “are scholarly logic, abstraction, and systematization.” He goes on to note that these characteristics have led to criticism of the BGB’s extreme conceptualism and complexity, and to judicial resistance to its limited scope for equitable interpretation according to circumstances. By contrast, the Swiss Code, was “draft[ed] in popular and clear language, in an easily accessible structure and with deliberately incomplete rules, permitting the judge to decide what is appropriate, reasonable, and equitable” (p. 316 ff., footnotes omitted).By comparing and contrasting how the code excerpts in this book have adopted, adapted, or rejected a Roman rule or concept, it is possible for the reader to see the dynamic character of the Roman legal tradition in action. In order to facilitate comparison with corresponding rules and concepts in the common law tradition, additional texts and questions prepared by the translator have been mounted on a website that accompanies this translation: www.oup.com/us/ romanpropertylaw.