Pożyczka morska. Ślepa uliczka zachodniej tradycji prawnej?

• Authors: Blicharz Grzegorz

Title variants

EN

Sea Loan. A Dead-End Alley of Western Legal Tradition?

• Languages of publication: PL

Abstracts

EN

When considering Roman legal framework a key factor in the discussion about the process of decodification in Europe one cannot overlook some concepts which nowadays are thought to be a mere history. Roman law does not always pass the test of flexibility and economical effectiveness. For example a strong affirmation of personal character of any obligation made Romans reluctant to accept assignment of rights and pactum in favorem tertii which are broadly recognized in the modern civil law. However, it seems not to be a case with pecunia traiecticia, i.e. the sea loan. This special contract of loan had a twofold character: it served to take over the risk of sea transport and to invest in maritime trade. The main idea was quite familiar: just price for any loss incurred due to vis maior. Usus modernus applied it also to land transport. Nevertheless, the sea loan suddenly disappeared at the end of 19th century after a long tradition of being a part of the western legal thought. The author believes that there is a place in the realm of obligations for an ancient, but still a vigorous concept. Pecunia traiecticia was inspiration for two different and more famous contracts: insurance and bottomry loan which dominated its history. However, as such it was more like modern risk-sharing instruments which combine credit, insurance and a bit of speculation. Examination of Roman legal framework and western legal tradition has proved that some ancient concepts even ‘forgotten’ could revive and should be included in the market of ideas while shaping a new order of private law.

• Publisher: Fundacja „Utriusque Iuris” i Uniwersytet Jagielloński
• Journal: Forum Prawnicze
• Year: 2013
• Issue: 1 (15)
• Pages: 28-35

Contributors

author

Blicharz Grzegorz

• Katedra Prawa Rzymskiego na Wydziale Prawa i Administracji Uniwersytetu Jagiellońskiego