ROMAN LAW & COMMON LAW ROMAN LAW AND COMMON LAW A COMPARISON IN OUTLINE BY THE LATE W.W. BUCKLAND AND ARNOLD D. McNAIR C.B.E., LL.D., Q.C., F.B.A. Fellow of Gon<ville and Cams College, Cambridge SECOND EDITION REVISED BY F. H. LAWSON D.C.L., F.B.A. Professor of Comparative Law in the University of Oxford and Fellow of Brasenose College CAMBRIDGE UNIVERSITY PRESS CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo, Delhi Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www. Cambridge. org Information on this title: www.cambridge.org/9780521043618 © Cambridge University Press 1936, 1952, 1965 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 1936 Second edition 1952 Reprinted with corrections 1965 Reprinted 1974 This digitally printed version 2008 A catalogue record for this publication is available from the British Library ISBN 978-0-521-04361-8 hardback ISBN 978-0-521-08608-0 paperback CONTENTS Preface page ix Preface to the Second Edition xi Note on the ig6$ Impression xiii Introduction XV Abbreviations xxiii Chapter I. THE SOURCES 1 I . Legislation 1 2. Case Law 6 3. Juristic Writings 10 4. Custom 15 5. General Reflexions 18 Excursus: Roman and English Methods 21 Chapter II. THE LAW OF PERSONS 23 1. Territorial and Personal Law 23 2. Slavery 25 3. Marriage 3i 4. The Family 38 5. Adoption and Legitimation 42 6. Minority and Guardianship 46 7. Juristic Personality 54 Chapter III. LAW OF PROPERTY 60 1. Land and Moveables 60 2. Property and Possession 62 Excursus: Property and Possession 71 3. lura in rem and in personam 89 4. Ownership in futuro and Terminable Ownership 91 5. Content of Ownership 94 6. Trespass 102 7. Common Ownership 103 8. Modes of Conveyance no 9. Acquisition by Long Possession 117 10. Partition 123 11. Acquisition of Fruits by a Non-owner 124 VI CONTENTS Chapter IV. LIMITED INTERESTS AND SERVITUDES page 127 Chapter V. UNIVERSAL SUCCESSION H3 1. Introductory H3 2. Heresy Heir, Executor and Administrator H7 3. Testamentary Form and Capacity 156 4- Soldiers' Wills 158 5- Interpretation 159 6. Freedom of Testation 167 7- Revocation 168 8. Restrictions as to Remoteness, Unborn Bene- ficiaries, etc. 173 9. Trusts 176 10. Succession on Intestacy 179 11. The Surviving Spouse 183 12. Succession to Freedmen 186 i3- Bonorum possessio 187 H- Cur a prodigi 188 i5- Dislike of Intestacy 191 Chapter VI. OBLIGATIONS: GENERAL 193 1. Introductory 193 2. Reality of Consent in Contract 196 Excursus: Mistake 205 3- Position of Third Parties 214 4- Agency 217 5- Consideration 221 Excursus: Cause and Consideration 228 Chapter VII. OBLIGATIONS: GENERAL (cont.) 237 1. Impossibility 237 2. Casus and Frustration 244 3- Conditions 247 4- Dutyof Third Parties not to interfere with Contract 257 5- Liability for Non-performance 258 6. Need and Number of Witnesses 263 7- The Relation between the General Law of Con- tract and the Law of the Particular Contracts 265 CONTENTS Vll Chapter VIII. PARTICULAR CONTRACTS page 271 1. Unilateral Contracts in General 271 2. Loan for Use, Deposit and Pledge 277 3. Consensual Contracts: General 279 4. Sale 280 Excursus: The Passing of Property and Risk in Sale 291 5. Lease of Land and Houses: Letting out of Con- tracts and Services 294 6. Partnership 300 7. Mandatum 307 8. Innominate Contracts 310 9. Joint, and Joint and Several, Obligations 312 10. Security 314 11. Suretyship 324 Chapter IX. QUASI-CONTRACT AND NEGOTIORUM GESTIO 329 Chapter X. DELICT AND TORT 338 1. General 338 2. Compensation or Penalty 344 3. Personal Capacity 348 4. Border-line between Contract and Tort 350 Chapter XI. PARTICULAR DELICTS AND TORTS 352 1. Theft 352 2. Negligence: 362 (a) General 362 Excursus: Duty of Care 367 (b) Contributory Negligence 370 (c) Necessity 373 (d) Acts and Omissions 374 3. Iniuria 378 4. Dolus 383 5. Metus 390 6. Calumnia 39l 7. Nuisance 392 8. Quasi-delict 395 Vlll CONTENTS Chapter XII. PROCEDURE page 399 1. Substantive and Procedural Law 399 2. Consent of the Parties. Arbitral Origin of Roman Procedure 400 3. Oaths 404 4. Discovery of Facts and Documents 405 5. Representation in Litigation 407 6. Forms of Action 409 7. Contracts of Record 41 o 8. Appeals 411 9. Judgement 412 1 o. Prescription: Limitation and Abatement of Actions 413 11. Delay in securing Judgement 419 12. Interdicts and Injunctions 420 Index 425 PREFACE It will be convenient to state what this book is and what it is not. It is far from being a comprehensive statement of Roman law and common law comparatively treated. It is rather a comparison of some of the leading rules and institutions of the two systems. One of us many years ago produced a small book entitled Equity in Roman Law* the aim of which was to show the way in which the Roman lawyer worked. The institutions with which he dealt were subordinated to the way in which he worked on them, and an attempt was made to show that, working on institutions often very differently shaped, he handled them in ways very similar to those of English lawyers and reached results, especially in the field covered by modern English equity, astonishingly like theirs. In this book, on the other hand, it is the rules and institutions themselves that are compared. These are no doubt to some extent the work of the lawyers, but that is not true of the most basic notions: these were formed in their essentials long before there was such a thing as the professional study of law. They may be regarded as given, as not being the lawyers' work but the materials on which they worked, moulded however into the form in which we know them from the sources by many generations of lawyers and, no doubt, politicians. Least of all does this book attempt to estimate the in- fluence of Roman law upon English law, as has been done by the late Lord Justice Scrutton in his Yorke Prize Essay, by Dr Oliver in Cambridge Legal Essays and by Professor Mackintosh in his Roman Law in Modern Prac- 1 By W. W. Buckland, published in 1911 by the University of London Press, which has been kind enough to allow us to use parts of the book in the preparation of this volume. X PREFACE tice. Our interest lies not in the borrowing by England from Rome but in examining the independent approach of the two peoples and their lawyers to the same facts of human life, sometimes with widely different, sometimes with substantially identical, results. For our belief is that one of the main juridical features of this century must be a big advance in the comparative study of law; and one of the obstacles to that advance is the difficulty which the Continental lawyer deriving much of his mode of thought from the Roman law, and the Anglo-Saxon lawyer with his independent heritage, have in understanding one another. It will be seen that this book assumes in its readers a greater knowledge of the common law than of Roman law and in consequence deals more lightly with the former and cites no authority for many of the more familiar rules. The expression * common law' in its title is used in the sense in which a * common law' country is contrasted with a country which has 'received* the civil law. At the same time it so happens, and largely because of the earlier publi- cation of Equity in Roman Law, that the English rules and institutions described in this book come more from the common law than from equity. Finally it must be noted that the subject is the common law as understood in England. In its adaptation to the conditions of what are now the United States of America it has diverged in some respects from the original pattern. With these divergencies it was impossible to deal. Those who are acquainted with the work of the two authors will have little difficulty in assigning responsibility for the contents of this book. But, though the original scheme and most of the preliminary work are due to the senior partner, every chapter is in fact the result of colla- boration. Cambridge 1936 PREFACE TO THE SECOND EDITION It was originally intended that I should merely take the place, so far as I could hope to do so, of the late Professor Buckland in the partnership which produced this book; but Sir Arnold McNair soon found that his other duties made too great demands on his time, and asked me to undertake the full task of preparing a new edition. In the end therefore, although Sir Arnold has from time to time given me help for which I am most grateful, the respon- sibility for this edition is entirely mine. I have tried not to change the general character of the book; but I have not merely brought it up to date, by taking account of alterations in English law or of the constantly changing views held on Roman law. Indeed little has needed to be done in either direction, for the statements on Roman law were for the most part uncon- troversial, and the parts of English law chosen for com- parison were seldom such as undergo serious changes in a short space of time.