New Perspectives in the Roman Law of Property: Essays for Barry Nicholas

By Peter Goodwin Birks | Go to book overview

9
The Importance of the iusta causa of traditio

W. M. GORDON

Few topics have attracted more attention in the literature of Roman law than the iusta causa of traditio. The traces of discussion among the Roman jurists found in the famous, or notorious, conflict between D. 12.1.18 pr. and D. 41.1.36 indicate that there was room for differences of opinion among them. The conflict itself has provided scope for apparently endless discussion among Romanists, and succeeding generations have sought a solution to what, on the evidence of the attempts made since the time of the Glosssators, appears to be an insoluble problem.1 As Oxford has been said to be a home of lost causes,2 it may be thought peculiarly appropriate to dedicate to a distinguished Oxford Romanist an essay which seeks to offer new perspectives on the iusta causa of traditio. Bold or foolhardy as the essay may be, it is offered with deep respect to a scholar who has guided the footsteps of novices and given enlightenment to more experienced Civilians.

Two observations have prompted the present examination of the iusta causa in traditio. One arises from a consideration of Scots law, and the other from a consideration of the Roman law which, in this matter, Scots law purports to follow.3 The first observation is that, although Scots law in general follows Roman law in the matter of transfer of property by delivery, iusta causa does not appear to have created the problems which it has for Romanists. In the first place, there has been no discussion by Scots lawyers of the iusta causa of delivery as an issue until very recent times, when it was adverted to by the Scottish Law Commission.4 Even this recent discussion of the place of iusta causa in Scots law was prompted by the Commission's own reflections on the problems posed by the provisions of the Sale of Goods Act on transfer of property, rather than by pressure to look at the iusta causa of delivery as a contentious issue in its own right. In the second place, the question of iusta

© W. M. Gordon 1989.

____________________
1
For an account of modern approaches to the problem and a proposed solution see R. Evans-Jones and G. D. MacCormack, Iusta causa traditionis' in this volume at p. 99.
2
Matthew Arnold, Essays in Criticism: First Series ( London, 1921), Preface, p. xi.
3
See e.g. the Institutional writers, Erskine, Principles, ii. 1. 10; Institute, ii. 1. 18; Bell, Principles, s. 1299.
4
Scottish Law Commission, Corporeal Moveables: Passing of Risk and of Ownership (consultative Memorandum No. 25, 1976), paras. 12-17.

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