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Pożyczka morska w zachodniej tradycji prawnej

100%
Blicharz G.
Studia Iuridica
|
2014
|
vol. 58
9-30
EN
Researches on the sea loan in Roman law have led to the question of its fate in the western legal tradition, and its actuality for the legal science. Following the history of pecunia traiecticia from medieval times until the nineteenth century, it is fair to talk about the creation of a common framework of sea loan, which, in practice, completely relied on the achievements of Roman legal thought. Ancient heritage is evident from the name itself. Fenus nauticum, sometimes written foenus nauticum, pecunia traiecticia and even usura maritima were constantly present in glosses, commentaries and textbooks of ius civile and common law. They remained in legal science, even if much more popular have become a contract of insurance, bottomry loan or respondentia, different types of contracts that aimed to be a continuation of ancient sea loan. With the full awareness legal tradition preserved sea loan and in order to provide the dogmatic distinction, it found new names for other similiar but not the same contracts. For historical and comparative legal perspective, much more important, however, is the influence of the Roman conceptual framework on the structure of sea loan itself. Undoubtedly, the greatest hero of these ages has been the expression pretium periculi. Together with another ancient formulation si modo in aleae speciem non cadat, they were constant points of reference in the legal tradition. It turns out that not only the Romans feared that the sea loan does not become an convenient opportunity for speculation, or maybe even a way to circumvent the limits for interest. Gregory IX, decretalists, representatives of the usus modernus, nineteenth-century French doctrine and finally jurisprudence and doctrine of English and American common law, emphasized that such an agreement is binding on the parties in so far as it is circumvention of interest or „pure gambling”. In this form sea loan remained an important solution in the western legal tradition that has preserved its autonomy in relation to other types of contracts until the end of the nineteenth century.
2
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Pożyczka morska. Ślepa uliczka zachodniej tradycji prawnej?

100%
Blicharz G.
Forum Prawnicze
|
2013
|
issue 1 (15)
28-35
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.
3
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Prawne aspekty zarządzania commons wobec technicznych wyzwań rozwoju smart city

63%
Blicharz G., Kisielewicz T.
Forum Prawnicze
|
2017
|
issue 1 (39)
34–54
EN
Every technical evolution has changed cities, their shape, size, transport system and ways of protecting safety. A currently popular idea of a smart city was born out of the need to use the latest advances in information technology – mobile technology, the Internet, development of automatics and robotics, IoT – to upgrade cities and make them “smarter”. Proposed projects and ideas pose a number of questions: how to shape legal standards, unify technical standards, and adjust the ownership structure of new technologies so as to meet the requirements of stable urban development, how to address the need for privacy and security that are exposed to greater risk in each integrated network. Among smart city experts a modern city is considered a “system of systems”: a technological center: that concentrates data of all objects and entities, especially citizens, influencing the condition of the city. The question to be asked is whether the idea of technological centralization must necessarily mean or inevitably lead to the centralization of social, political or legal spheres.
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