Roman-Dutch law
The Roman law of suretyship has had a profound influence on modern legal systems. The suretyship contract in all countries that have received Roman law derives directly from Justinian's fideiussio.
lf>9< 17° This is most obvious in the usus hodiernus of Roman-Dutch law.171 Suretyship is an accessory contract and the position of the surety is still governed by the venerable triplet of privileges: he can avail himself of the beneficium excussionis, the beneficium divisionis (where there is a plurality of sureties) and the beneficium cedendarum actionum. With regard to the latter, an interesting development has taken place. Some of the classical Roman-Dutch writers found it repugnant that the surety who paid should remain burdened with the whole debt if he forgot to ask for cession in good time. Thus, in order not to let the co-sureties benefit from his carelessness, they allowed cession to take place at any time, even long after payment had been rendered.172 But once that was accepted, the question was bound to arise sooner or later whether the whole act of cession had not under those circumstances become a meaningless formality which the law could just as well dispense with. This, indeed, was the view taken by WesselsJ, in Kroon v. Enschede,173 who thereby brought South African law in line with the English1M Cf. the contributions in Les suretes personnelles. op. cit.. note 2, for example, Jean Gilissen. vol. 28, pp. 94 sqq.; Burge, Suretyship, passim; Jones, (1977-78) 52 Tulane LR 136 sqq. (describing, tor instance, ehe French Code Civil as "almost a restatement of the Roman law as clarified and modified by such jurists as Pothier and Domat"). In many modern systems, writing is prescribed for suretyship contracts (cf. e.g. § 766 BGB (but see § 350 HGB, if the surety is a merchant), s.
6 Act 50/1956 (South Africa), and, generally. Ernst J. Colin, "The Form of Contracts of Guarantee in Comparative Law", (1938) 54 LQR 220 sqq.). In the European usus modernus of Roman jaw. fideiussio was an informal contract: the oral formality of the Roman stipulatio had become obsolete, and the symbolic forms of Germanic law which existed for the contract of suretyship had been suppressed by the reception of Roman law. Thus, the (re-)introduction of the formal requirements had to take place by deliberate acts ot legislation.1/0 The promissio (or fideiussio) indemnitans (cf. supra, note 86), incidentally, lives on in the modern contract of indemnity ("a promise to save another harmless from the result of a transaction into which he enters at the instance of the promisor": Anson/Guest, Law of Contract (24th ed., 1975), p. 76; in German: "Garantievertrag"); cf. esp. Rudolf Stammler, "Der Garantievertrag", (1886) 69 Archiv fur die civilistische Praxis 1 sqq. and, more recently, Jorg Kaser, "Garantieversprechen als Sicherheit im Handelsverkehr", (1971) 35 KabelsZ 593 sqq.; Hadding/Hauser/Welter. op. cit., note 17, pp. 682 sqq.
Cf. De Wer en Yeats, pp. 344 sqq.; Wessels, Contract. §§3771 sqq. and Caney/Forsyth, loc. cit.
Groenewegen, De 1 egibus abrogatis. Cod. Lib. VIH, Tit. XLI, 1. 11 cum alter; Voet, Commentarius ad Pandectas. Lib. XLVI, Tit. I, XXX; cf. later on, also Girtanner, op. cit., note 48, pp. 533 sqq.; contra, e.g., Grotius, Inleiding. Ill, HL XXXI.
m [9o9 ts 374; but cf also Voett Commentarius ad Pandectas. Lib. XLVI, Tit. I, XXX; Pothier, Traite des obligations, n. 445; Burge, Suretyship, pp. 381 sqq. doctrine of contribution:[745] without any assignment, the surety who has paid the debt, is entitled to recover from his co-sureties. Thus, he does not pursue the creditor's right, but his own right based not on contract but on general equity. Besides this "automatic" right to contribution against his co-sureties and his right of recourse against the principal debtor arising from their internal relationship (mandate or negotiorum gestio),[746] the beneficium cedendarum actionum has not sunk into oblivion; it is still vitally important where the creditor's claim enjoyed a privileged position or where it was secured by accessory real rights.
Kroon v. Enschede, by the way, is but one example of quite a number of decisions of South African courts in this field which fascinate the reader on account of their extensive investigation into the sources of Roman-Dutch law. Sometimes the very question of what these sources are has been the bone of contention. The cause celebre is Wolson v. Gerber.[747] Seven persons had stood surety for repayment of a loan "jointly and severally and as sureties and co-principal debtors... renouncing the legal exceptions... ordinis seu excussionis et divisionis", as the parties had specified. After one of them, a certain Wolson, had paid the creditor the whole amount, the question arose as to how much he would be able to claim, by way of recourse, from Gerber, another of the co-sureties. According to Voet,[748] Sande[749] and Perezius,[750] he could sue any of the remaining co-debtors for the whole of the original debt minus only his own pro rata share (that is, in this instance, for six-sevenths). Pothier,[751] 0 on the other hand, had advocated a restriction of his right of recourse against each of the codebtors; as a result, he would have been able to recover only one- seventh of what he had paid to the creditor from the defendant.[752] Faced with this conflict of opinion, the court came to the conclusion that the more modern opinion of Pothier could not be followed:
"Pothier is of course a great authority on the Civil law... [and] as an interpreter of the Roman law, our law in subsidio, on questions on which the Dutch jurists are silent, his opinions naturally carry much weight... But [his authority] cannot prevail against the opinions of the accepted Dutch authorities."[753]
It is not without irony, however, to see that, notwithstanding these general pronouncements about his relevance for South African courts, Pothier at least scored an indirect victory; the majority of the court did, in the end, limit the right of recourse to one-seventh but based their decision on a somewhat unsatisfactory fiction, namely on an implied agreement between the seven co-sureties limiting their reciprocal rights of recourse to the pro rata share.[754]
2.
More on the topic Roman-Dutch law:
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- The law of obligations is one of the most significant contributions of Roman law to legal culture, illuminating the civil law tradition more than any other branch of Roman law.
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- Roman private law developed from the law of procedure, otherwise recognized as the law relating to actions.
- VII. FROM CONTEMPORARY ROMAN LAW TO ROMAN LAW
- Williamson C.. The laws of the Roman people: public law in the expansion and decline of the Roman Republic. University of Michigan,2005. — 535 p., 2005
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- Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p., 2004
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- ROMAN LAW AND GERMANIC LAW IN THE WEST