Post-classical developments, Corpus Juris and ius commune

All in all, while meeting the commercial demand for circulation of claims to a not inconsiderable degree, neither novation nor procedural representation could be regarded as really satisfactory substitutes for assignment.

It is, therefore, hardly surprising to find under the imperial law from the time of Antoninus Pius onwards a growing tendency to improve the position of the assignee by making it more independent of the assignor. This was done by the granting of an actio utilis in cases where the mandate to act as cognitor or procurator in rem suam had been terminated due to the death of either of the parties,^[340] but (more importantly) also totally independently of any kind of procedural representation: first in a case of purchase of an inheritance,^[341] ² but soon also when an individual claim had been sold,^[342] given as a dos,^[343] etc. By the time of Justinian,^[344] the actio utilis was granted whenever the parties had intended to transfer a claim, no matter what transaction was involved.^[345] The assignee was thus no longer claiming as a mere cognitor or procurator, that is, on account of an actio mandata, but in his own right^[346]—a right which could no longer be affected by revocation or death. However, the actio utilis did not really transfer the claim either, because the old creditor's actio (directa) continued to exist: if, for instance, the debtor performed towards the creditor, the "assignee's" action was thwarted. On the other hand, the debtor could possibly raise an exceptio doli against the actio directa, which considerably weakened the "assignor's" position.^[347] But that was possible only if the debtor knew of the assignment. Such knowledge obviously being in the "assignee's" interest, we find that in post-classical East-Roman law the practice of denuntiatio, i.e.

a notification of the debtor by the "assignee", gradually became entrenched. Soon the situation was further improved in that the debtor, as a consequence of denuntiatio, could now no longer discharge his obligation by rendering performance towards the old creditor.^[348] Details concerning the denuntiatio (did this practice originate in late classical law?; did it have the effect of extinguishing the "assignor's" actio directa?; did the same consequences arise if the debtor obtained notice of the assignment otherwise than by denuntiatio?) are controversial.^[349] But if one takes into consideration the breakdown of the classical concept of an "actional law" in post-classical times and the change in meaning, nay pointlessness,^[350] of the concept of actiones utiles that went with it, one can say that for all practical purposes assignment as a transfer of the substantive right from the old to the new debtor (i.e. a singular succession to obligations) had become recognized by the time of Justinian.^[351]

However, Justinian incorporated into his Corpus Juris Civilis classical sources dealing with procuratores in rem suam, actiones mandatae and utiles and thus juxtaposed as existing law the various stages through which the development of assignment had passed. It is small wonder that this sort of arrangement caused great confusion after the Digest had been rediscovered and Roman law was to be applied again.^[352] ³ The glossators,^[353] ^{^[354] ^[355] in their attempt to explain and harmonize the conflicting sources by logical means, reverted to the old dogma of the untransferability of rights. How, they argued, could claims be regarded as transferable if one of the most common ways of "ceding" a claim had obviously been the appointment of a procurator in rem suam? The use of this institution would otherwise have been impossible.}

Also, if up to the time of denuntiatio or litis contestatio payment to the old creditor released the debtor from his obligation, how could that be explained rationally other than by assuming that the "assignor's" claim still existed? As far as the meaning and effect of the actio utilis and its connection or interrelationship with the actio mandata were concerned, a whole host of theories, hypotheses and speculations were developed.²¹⁵ These disputes carried on throughout the centuries; in Germany it was maintained until well into the 19th century that rights, by nature of the concept of an obligatio, could not be regarded as transferable.²¹⁶ Christian Friedrich Muhlenbruch tried to show that the introduction of the actio utilis had not, in fact, changed the principle of the "assignee" merely acting as procurator of the "assignor". According to him, the actio utilis had been based on the fiction of a mandate: it was as if the "assignee" had been authorized to act as procedural representative.^[356] What was transferred was in any event never the claim but merely the exercitium actionis. So influential was Muhlenbruch's theory that during the first half of the 19th century it totally dominated the scene.^[357] ^{^[358] That might seem surprising to us, because he did not make any reference to the sources of Roman law for the fiction which he introduced. But at that time the construction of logically consistent systems was what one aimed for, and axiomatic arguments, based on the nature or essence of a certain concept, and the use of fictions were well-recognized and oft-used tools for that 219 purpose.
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Post-classical developments, Corpus Juris and ius commune

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