I ,- AN INTRODUCTION TO ROMAN-DUTCH LAW R! W.^'LEE, B.C.L., M.A. DEAN OF THE LAW FACULTY, M CGILL UNIVERSITY, MONTREAL ADVOCATE OF THE SUPREME COURT OF SOUTH AFRICA OF GRAY'S INN, BARRISTER-AT-LAW AND LATELY PROFESSOR OF ROMAN-DUTCH LAW IN THE UNIVERSITY OF LONDON OXFORD AT THE CLARENDON PRESS OXFORD UNIVERSITY PRESS LONDON EDINBURGH GLASGOW NEW YORK TORONTO MELBOURNE BOMBAY HUMPHREY MILFORD M.A. PUBLISHER TO THE UNIVERSITY PRINTED IN ENGLAND AT THE OXFORD UNIVERSITY PRESS TO THE HON. J. G. KOTZE ONE OF HIS MAJESTY'S JUDGES OF THE SUPREME COURT OF SOUTH AFRICA LATE CHIEF JUSTICE OF THE TRANSVAAL a 2 PREFACE THIS book, as its title indicates, is an Introduction to Roman-Dutch Law. It has grown out of a course of lectures delivered in the University of London at intervals in the years 1906-14. During this time I was frequently asked by students to recommend a text-book which would help them in their reading and perhaps enable them to satisfy the requirements of the University or of the Council of Legal Education. The book was not to be found. The classical Introduction to the Jurisprudence of the Province of Holland of Grotius, published in the year 1631, inevitably leaves the reader in a state of bewilderment as to the nature and content of the Roman- Dutch Law administered at the present day by the Courts of South Africa, Ceylon, and British Guiana. The same must be said of the treatise of Simon van Leeuwen entitled The Roman-Dutch Law, published in 1664, and of the elementary Handbook of Joannes van der Linden, published in 1806. Of more modern works the excellent volume of Mr. G. T. Morice entitled English and Roman-Dutch Law scarcely meets the needs of the mere beginner, while the Institutes of Cape Law of Chief Justice Sir A. F. S. Maasdorp, the weighty work of Dr. Manfred Nathan on The Common Law of South Africa, and the Laws of Ceylon of Mr. Justice Pereira, besides being not especially fitted for the use of students, deal only with the laws of the several x i PREFACE jurisdictions to which they relate. What was needed was a book of modest compass, published at a reason- able price, which would put a student, whether from South Africa, Ceylon, or British Guiana, in the way of acquiring a knowledge of the general principles of the Roman-Dutch Law as it exists at the present day in Africa, Asia, or America. Such a work would supply would refer the reader to an historical background ; the original sources and teach him to distinguish in them what is obsolete from what is of living interest. These, therefore, are the objects which I have set be- fore me. I have aimed at producing not a treatise on the Law of South Africa, or of Ceylon, or of British Guiana in particular, but rather an exposition of the principles of the Roman-Dutch Common Law, which forms the historical basis of all those systems, and which, however much abrogated, limited, or transformed by legislation, by judicial decision, or by custom, is still in greater or less measure the substance of which they consist. It is for the student, principally, that the book is intended and for any other person who may care to have before him a general picture of the Roman-Dutch Law at the present day. The practitioner, should he happen to glance at my pages, may find that I have here or there supplied a reference or suggested a point of view. Though the book is not bulky, I may perhaps be permitted to say that its composition has involved considerable labour. Research in Latin and Dutch folios and quartos of bygone centuries takes time and the results are not always immediately apparent. PREFACE vii Amongst well-known text-writers my references are principally to Voet, Van Leeuwen, Van der Keessel and Van der Linden. The citations of Van der Keessel's Dictata are from manuscript copies in my possession, which I have reason to believe conform substantially to the Leyden exemplar. For the rest, my studies have been partly conditioned by the contents of my own library. It will probably be thought that my citations are on the whole sufficiently numerous. Circumstances have prevented me from referring as often as I should have wished to many valuable articles in the South African Law Journal. I must be content with a general mention of that excellent review. In the spelling of Dutch words I have as a rule followed the vagaries of my original. In citing Grotius I have usually quoted the first or second edition of the Inleiding. for such forms as ' This accounts strange muirbezwaring ', ' inbalcking ', &c. For the law of South Africa and Ceylon I have made use of the works mentioned above as well as of Messrs. Bisset & Smith's Digest of South African Case Law. For the law of British Guiana I have received valuable help from Mr. W. J. Gilchrist, Barrister-at-Law of Gray's Inn, who holds an important position in the Civil Service of the Colony. The notes from his hand have in many ' ' cases been indicated by the letter G between square brackets but indebtedness what is ; my goes beyond thus formally acknowledged. My thanks are due also to my former pupil Mr. E. Draper, of the Inner Temple, for many useful references to South African cases. I have to express my gratitude to the Delegates of xiii PREFACE ' ( Business t he 'lareiidoii Tress for acting upon the maxim with the of this as usual ', and pn-evering publication \\ork notwithstanding the outbreak of the European War. With regard to the proposed abolition of the Roman- Dutch Common Law in British Guiana, my latest informa- tion is that a Committee has been appointed by the Governor to advise as to the necessary legislation. My recent removal to Montreal, where I have not access to South African Law Reports and other neces- sary books of reference, has hampered me a little in >eeing the work through the press. I trust, however, t hat any errors which may arise from this cause will be neither numerous nor important. My friends Dr. W. R. Bisschop, Barrister-at-Law of Lincoln's Inn and the Middle Temple, and Mr. J. C. V. Behan, Barrister-at-Law of the Middle Temple and Fellow of University College, Oxford, have given me kind assis- tance in correcting the proofs. I am permitted to dedicate my book to the honoured name of Mr. Justice Kotze. R. W. LEE. M-'VTKKAL, 18, 1915. CONTENTS PAGE AUTHORITIES CITED OR REFERRED TO WITH MODE OF CITATION . xiii TABLE OF LAW REPORTS WITH MODE OF CITATION . xviii TABLE OF CASES xx TABLE OF STATUTES ........ xxix GENERAL INTRODUCTION 1 APPENDIX : How FAR THE STATUTE LAW OF HOLLAND OBTAINS IN THE COLONIES 24 BOOK I. THE LAW OF PERSONS CHAPTER I. BIRTH, SEX, LEGITIMACY 28 Section 1. Birth 28 Section 2. Sex 28 Section 3. Legitimacy ....... 28 CHAPTER II. PARENTAGE 31 A. The reciprocal duty of support ..... 31 B. The parental power and its consequences ... 32 CHAPTER III. MINORITY 37 CHAPTER IV. GUARDIANSHIP 44 Section 1. The Kinds of Guardians and the Appointment of Guardians ........ 44 Section 2. Who may be Guardians .... 50 Section 3. The Powers, Rights, and Duties of Guardians . 52 Section 4. Actions arising out of Guardianship . 60 Section 5. How Guardianship ends . 63 CHAPTER V. MARRIAGE 64 Section 1. The Contract to Marry ..... 64 Section 2. The Legal Requisites of Marriage ... 66 Section 3. The Legal Consequences of Marriage . 77 Section 4. Ante-nuptial Contracts ..... 83 Section 5. Dissolution of Marriage ..... 98 Section 6. Miscellaneous Matters relating to Marriage . 100 CONTENTS PAOB CHAPTER VI. UNSOUNDNESS or MIND. PRODIGALITY . 103 105 (ii \ITKK VII. JUBLSTIC PERSONS . x* AITKMMX A. FORM OF GRANT OF VENIA AETATIS IN CEYLON 107 AITI:M>I\ B. FORM OF ANTE-NUPTIAL CONTRACT IN USE IN SOUTH AFRICA . 108 BOOK II. THE LAW OF PROPERTY Ill CHAPTER I. THE MEANING OF OWNERSHIP .... CHAITER II. CLASSIFICATION OF THINGS '. 112 CHAPTER III. How OWNERSHIP is ACQUIRED . .119 CHAPTER IV. OWNERSHIP 135 Section 1. The Incidents of Ownership in General . 135 .Section 2. The Kinds of Ownership of Land . 139 CHAPTER V. POSSESSION 144 CHAPTER VI. SERVITUDES 148 CHAPTER VII. MORTGAGE OR HYPOTHEC . .162 APPENDIX A. RIGHTS OF THE PUBLIC AND OF THE CROWN IN THE SEASHORE 182 AITLMMX B. THE SYSTEM OF CONVEYANCING IN BRITISH GUIANA 184 BOOK III. THE LAW OF OBLIGATIONS PART I. OBIJCATIONS ARISING FROM CONTRACT . 188 (MAITER!. FORMATION OF CONTRACT 189 ionl. The Parties must be agreed .... 190 Section 2. The requisite Forms or Modes of Agreement, if any, must be observed ...... 195 Section 3. The Agreement must not have been procured liy IY-aud or I'c.-n 200 Section 4. The Agreement must not be directed to an Illegal Object 205 <>n 5. The Parties must be competent to contract . 210 CONTENTS xi PAGE CHAPTER II. OPERATION OF CONTRACT 210 Section 1. The Persons affected by a Contract . .210 Section 2. The Duty of Performance . .217 Section 3. The Consequences of Non-performance . 227 CHAPTER III. INTERPRETATION OF CONTRACT . 233 CHAPTER IV. DETERMINATION OF CONTRACT .... 234 CHAPTER V. PLURALITY OF CREDITORS AND DEBTORS . 244 CHAPTER VI. SPECIAL CONTRACTS 247 PART II. OBLIGATIONS ARISING FROM DELICT . 267 PART III. OBLIGATIONS ARISING FROM SOURCES OTHER THAN CONTRACT AND DELICT ...... 282 APPENDIX : LIABILITY FOR INJURY BY ANIMALS 283 BOOK IV. THE LAW OF SUCCESSION CHAPTER I.