Lapas attēli
PDF
ePub

PREFACE.

THIS book, containing the text of the two chief Titles in Justinian's Digest treating of the Contract of Sale, along with a translation and commentary, was originally published in 1892. Its main object was to encourage direct study of the most valuable of the original sources; a secondary aim-more novel, and perhaps appealing to a larger circle—was to provide some materials for a comparison of the common law of sale. The call for a second edition of a book of this kind is gratifying as a sign that it has been found of some use in both directions.

Experience has confirmed the view that it would be a decided advantage for all who take up Roman law as part of their professional training, to devote a little time to making first-hand acquaintance with its great storehouse of legal principles; it would add to the interest and also to the educational value of the subject. For the Digest is a very human document, giving a vivid picture of the daily life and practical work of the great lawyers, and explaining, as nothing else can, how and why they attained such pre-eminence in their art.

Sometimes their contribution to the law of contract is disparaged in comparison with their performances in other fields. Lord Brougham put the point with his usual vigour in giving judgment in a Scotch appeal, where a civil law precedent on a question of partnership had been adverted to: If there is one department in which the authority of the civil law shall not be taken to rule points in our day, it is that of mercantile jurisprudence, where the defective nature of ancient commercial dealings and commercial institutions connected with them, and

[ocr errors]
[ocr errors]

growing out of them, necessarily make that code of far less weight than in other cases. But I not only deny the authority of the civil law as a direct authority; I deny the weight of it-the general deference to it-in a question of mercantile law, in mercantile times, and in a mercantile country.'1 There seems to be a good deal of inaccuracy in all this. The persuasive weight of a civil law precedent in an English court appears to be more correctly stated by Tindal, C. J.: 'The Roman law forms no rule binding in itself on the subjects of these realms; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it prove to be supported by that law-the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries of Europe.' 2 As regards the comparative value at the present day of different parts of the civil law, Lord Brougham's view is directly opposed to the opinion of some of the most eminent civilians. It is of course a truism that the external machinery and methods of commerce have developed considerably since the times of the Antonines, or for that matter since Lord Brougham's day; but it is not so obvious that the intention of buyer and seller, and the legal principles by which that intention is to be construed, have changed to the same extent. And it is noteworthy that more references to the civil law are to be found in leading judgments on the law of sale than perhaps in any other single chapter of the common law. The reader will find some materials for forming his own judgment on the matter in the following pages, where the chief similarities and differences between the old code of sale and the new are noted.

In this edition I have incorporated the full text of the Sale of Goods Act, 1893, which codified the law for the United Kingdom, and has since been adopted by a large number of British Possessions abroad. It is not only essential for the purpose of comparison, but its practical and well-considered

1 Thomson v. Campbell's Trs. (1831), 5 W. & S. 16.
2 Acton v. Blundell (1843), 12 M. & W. p. 324.

order may suggest a scheme for rearranging the scattered learning of the Roman titles. on more systematic lines. References are given throughout to the two most authoritative text-writers-Pothier and Benjamin-who have this point in common, that the one largely influenced the Code Napoleon, and the other laid the foundation for our own Code.

Advantage has been taken of the opportunity to recast several of the notes (especially those headed by a thick rubric), and to add some new ones, in order to give a somewhat more complete view of the subject. The law on two or three matters essentially connected with the contract, though treated under distinct Titles in the Corpus Juris, has been summarised in an Appendix which is wholly new. A commentary on a text so loosely put together and so full of repetitions must necessarily be somewhat inconsecutive; it is hoped that the numerous cross-references and a very full Index will supply the necessary connecting links.

In addition to specific obligations acknowledged at various places throughout the book, I desire to mention the special assistance I have derived from the German writers on Pandect law, especially Savigny, Ihering, Vangerow, and Windscheid. In this edition I have frequently referred for a fuller treatment of certain matters to two recent and excellent works, which are perhaps more accessible than the above-Girard's Manuel de droit romain (specially useful for its summaries of the results of recent criticism) and Roby's Roman Private Law.

EDINBURGH, January 1, 1907.

« iepriekšējāTurpināt »