Abstract
The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and the legal historian and romanist Hoetink, which have become common wisdom in time. However, application of new insights into historical narratives has often been hesitant because of the “anything goes” mentality. This paper approaches one of Roman law’s holy cows, namely the role and development of good faith in the Roman law of contracts and questions whether a move from historical interpretation to legal history may provide another narrative.
Highlights
Introduction of contractus bonae fideiIt is common knowledge that a momentous development within Roman law was the introduction of the bonae fidei contracts
The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and the legal historian and romanist Hoetink, which have become common wisdom in time
The objective of this paper is to present the difference between historical interpretation and legal history ars artis gratia and suggest that this may lead to alternative interpretations of Roman law
Summary
Introduction of contractus bonae fideiIt is common knowledge that a momentous development within Roman law was the introduction of the bonae fidei contracts. In Das römische Privatrecht[25] Kaser names the transformation of the formal, limited, strict law of contract into a system adapted to a developed international economy by way of the power of fides, the most formidable achievement of the Roman jurists He is of the opinion that fides was not restricted to the enforceability of certain agreements, and determined their content.[26] Whether fides obligations developed as a result of commercial transactions with peregrini or within Roman society is not clear, but that the first recognition of enforceability came from the praetor is stated unequivocally, as well as, that in early classical law oportere ex fide bona had become an obligation of the ius civile.. Keeping in mind the expansion of the Roman power between 450 and 300 BC guestimates are inadvisable
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