The turning of the tide

From about 1855, however, the tide was turning. Bernhard Windscheid^[359] refuted Muhlenbruch's theory as being conceptually and historically wrong; he showed that the granting of the actio utilis had finally been recognized as a full transfer of the claim.

Even before the time of Muhlenbruch, incidentally, there had for a long time been tendencies to contest the traditional dogma that had been handed down from the glossators to the commentators and from them to the humanists. "Inspecta porro consuetudine existimarim cedentem facta semel cessione nullam penitus retinere actionem, et quicquid juris habuerit in cessionarium transferri": this statement by Lambertus Goris^[362] is representative of the practically oriented jurisprudence in the Northern Netherlands during the 17th and 18th centuries;^[363] acknowledgment of the needs of commercial practice led to the abrogation, as a matter of customary law, of the Roman doctrines about cession. This view both influenced the usus modernus in Germany^[364] and provided the basis for modern South African law.^[365] The natural lawyers, too, in opposition to the doctrines espoused by the humanists, recognized assignment as a full transfer of the right. They construed assignment of rights as the transfer of ownership of res incorporales and systematically juxtaposed it with the transfer of ownership of res corporales (which, in their view, also required consensus ad idem between alienor and alienee).^{[366] [367] [368] [369]-220 This functional parallel between transfer of ownership and assignment, and the idea of a conceptually independent contract effecting the transfer of the right, has also had a lasting effect on the modern civil-law systems.22less than where contracts can be concluded inter absentes and/or by signing lengthy documents that have often not been read (let alone understood), such as (for example) modern standard contract forms.[378] This is especially true where the promisor repeats everything spelt out in the question: if the stipulator asks "decern mihi dari spondes?" and the answer is "viginti tibi dari spondeo", it is immediately obvious that no consensus has been reached.}

2.