Book contents
- Frontmatter
- Contents
- Preface
- Acknowledgements
- ROMAN LAW
- 1 Constitutum Possessorium
- 2 Acquistion of Ownership by traditio and Acquisition of Possession
- 3 Dating the Lex Aquilia
- 4 The Actio de Posito Reconsidered
- 5 Agency and Roman Law
- 6 Observations on Depositum Irregulare
- 7 The Importance of the iusta causa of traditio
- ROMAN LAW AND SCOTS LAW
- SCOTTISH LEGAL HISTORY
- ROMAN LAW INFLUENCE
- GENERAL INTEREST
- Table of Cases
- Table of Statutes
- Index
4 - The Actio de Posito Reconsidered
from ROMAN LAW
Published online by Cambridge University Press: 05 August 2013
- Frontmatter
- Contents
- Preface
- Acknowledgements
- ROMAN LAW
- 1 Constitutum Possessorium
- 2 Acquistion of Ownership by traditio and Acquisition of Possession
- 3 Dating the Lex Aquilia
- 4 The Actio de Posito Reconsidered
- 5 Agency and Roman Law
- 6 Observations on Depositum Irregulare
- 7 The Importance of the iusta causa of traditio
- ROMAN LAW AND SCOTS LAW
- SCOTTISH LEGAL HISTORY
- ROMAN LAW INFLUENCE
- GENERAL INTEREST
- Table of Cases
- Table of Statutes
- Index
Summary
When commenting on Inst IV.5.I, in his admirable modern edition of Justinian's Institutes, Professor Thomas observes a discreet neutrality on the question of the basis of liability in the actio de posito aut suspenso. Like Buckland1 he simply says that liability followed similar principles to those of the actio de effusis vel deiectis with which the actio de posito is linked both in the Institutes and in the praetor's edict. But his references in footnotes to articles by Watson, Birks and myself reveal that, as one would expect, he was fully aware of differences of opinion on whether the defender in the actio de posito aut suspenso has to be aware that something was placed or suspended from the building in question in order to incur the edictal penalty. His own enjoyment of friendly controversy together with the fact that the Institutes' text referred to contributes to the differences of opinion made it seem appropriate to pursue the question in a tribute to him in which the Institutes of Justinian were to form a common theme.
It may be said at once that the result of the pursuit has not been altogether satisfactory. It reminds one of a story told of that great character of the Scottish bar, Condie Sandeman KC. He was arguing a complex case on appeal before the Inner House of the Court of Session and at the end of his long and intricate exposition one of the judges said to him, “You know, Mr Sandeman, after all that you have said I am really none the wiser.”
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- Roman Law, Scots Law and Legal HistorySelected Essays, pp. 43 - 53Publisher: Edinburgh University PressPrint publication year: 2007