ABSTRACT
The paper starts with the presentation of factors that probably stand behind the analogies between Roman Civil Law and English Common Law . These factors concern the framework of sources of law – the dominance of case-law, the dogma of unalterable good-old law . Then the text presents the phenomenon of domination of procedural rules over the substantive ones. Even English legal historians, although reluctant to concede that Romanisation also took place in Albion, admit that to a certain degree ‘their’ original writs and forms of action in common law functioned similarly to the formulary system of Roman law. A number of parallels was detectable in the sphere of substantive law as well. There the paper focuses on the obligation law, especially the contract law and restitution law. Due to the procedural reasons (‘ubi remedium, ibi ius’ – rule), the separate branches of obligation law were founded on the closed systems of nominate contracts, torts and unjust factors leading to restitution respectively. It is emphasized, however, that these analogies should not be deemed to be the examples of the reception of the Roman law by the English courts.
Halberda, Jan, Parallels between Roman Civil Law and English Common Law (Litigation, Obligations) (January 1, 2011), Acta Historico-Iuridica Pilsensia volume 2009-2010, Plzen 2011, pp 78-91.
First posted 2021-06-09 14:45:13
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