Scientific Disciplinary Sector (SSD)
IUS/18 - ROMAN AND ANCIENT LAW
1° periodo di lezioni dal Oct 3, 2016 al Dec 16, 2016.
The overall objective of the course is to help students implement critical and reconstructive skills when observing the most significant issues in the area of European contract law: the students will develop some intuition on how to approach and analyze legal issues in a perspective of continuity/discontinuity. A specific focus will be given to the importance of historical perspective, moving backwards in time starting from the most significant legal concepts of European private law, thereby discovering a common matrix of these concepts in Roman private law.
The specific content of the course is the study of pecuniary obligations arising ex contractu: in fact, under contractual law, the obligations to pay a sum of money are of crucial importance. Since ancient times, the money (a specific subject-matter of a dare performance) has adapted the whole system of non-performance of the contract, of interests, of protection against write-down, of adjustment of the amount of the benefit over time etc.
Lectures aim to enhance students’ juridical reasoning skills, stimulating comparison and debate on the topics dealt with during the lessons.
The course is structured as follows:
1) The proposed method: the study of legal issues from a diachronic point of view.
2) The contract law in general.
2.a) The contract law today; main efforts to work out a common concept of contract in a European perspective: in particular, CESL, DCFR (and ‘Feasibility Study’), Principles Acquis, PECL, ‘progetto Gandolfi’; the concept of contract emerging from Principles Unidroit.
2.b) The rediscovery of the roots of contract law: the working out of the concept of contract by Roman jurists; the emergence and the overlapping of different contractual models: in particular synallagmatic contracts, the cause, the consent, the point of synthesis of the concept of contract achieved in late classical jurisprudence; the process of overcoming the type of contracts; the penetration of Roman legal models into European juridical experience; the ‘contrat’ in the Code Civil of 1804; the concept of ‘Vertrag’ in the BGB; ‘contract’ and ‘consideration’ in the Common Law system; the contract law in the Italian Codice Civile of 1865 and in that of 1942.
3) The pecuniary obligations in the framework of contract law.
3.a) The structure of nominal debt (with differentiation from indexed debt);
3.b) the nominalistic principle;
3.c) the payment system;
3.e) damage caused by monetary depreciation;
3.f) the adjustment of the initial content of the contract due to the passing of time; the resolution of reciprocal contracts.
For students who attend the course the exam programme will be agreed during lessons, clearly indicating what shall be studied in: T. DALLA MASSARA, Obbligazioni pecuniarie. Struttura e disciplina dei debiti di valuta, Padova, 2012.
For students who did not attend the course the study should be focused on the obligations to pay a sum of money, per se and in the general framework of the contract: the structure of nominal debt, the nominalistic principle, the payment system, the adjustment of the initial content of the contract, the interests and the damage caused by monetary depreciation.
Textbook: T. DALLA MASSARA, Obbligazioni pecuniarie. Struttura e disciplina dei debiti di valuta, Padova, 2012, to be studied entirely.
For students who didn’t attend the course in the 2012-13 academic year is still possible to study T. DALLA MASSARA, Obbligazioni pecuniarie. Struttura e disciplina dei debiti di valuta, Padova, 2012, with the following restrictions: pp. 1-72; 93-160; 285-399; 439-480. For students of previous academic years is possible the selection between the new programme on pecuniary obligations (above-mentioned) and the programme of their own year of the course.
1) C.A. CANNATA, L’inadempimento delle obbligazioni, Padova, 2008.
2) AA. VV., Le dottrine del contratto nella giurisprudenza romana, a cura di A. Burdese, Padova, 2006, with the following restrictions: pp. 1 - 108 (Parte prima); in addition, an essay can be chosen from the Parte seconda.
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During the course some recommended readings will be mentioned to provide the student with the critical tools to develop a comparative, diachronic and historical perspective in order to fully understand the very conceptual matrices of the modern idea of contract. It is recommended in particular:
R. ZIMMERMANN, The Law of Obligations: Roman Foundations of the Civilian Tradition, Oxford, 1996;
A. SCHIAVONE, ‘Ius’. L’invenzione del diritto in Occidente, Torino, 2005;
L. GAROFALO, Giurisprudenza romana e diritto privato europeo, Padova, 2008;
M. BARBERIS, Europa del diritto, Bologna, 2008;
U. VINCENTI, I fondamenti del diritto occidentale, Roma, 2010;
S. MAZZAMUTO, Il contratto di diritto europeo, Torino, 2012.
For both those who attend and for those who did not attend the course, a short written evaluation will be administered for general knowledge, followed by an oral examination.