Law

Mourning the dead is certainly one of the problems of classical Roman law that requires closer inspection. The problem concerns the question who was obliged to mourn her or his relatives and the relatives of which grade as well as what was the content of such a duty and, finally, what were the legal consequences of non-compliance. 1 Whether the duty in question concerned men as well as women is

This paper concerns the famous controversy between the Sabinians
and the Proculians on the consequences for the mandatary if he exceeded the limit of his mandate. According to the Sabinians, if a mandatary commissioned to buy a given good paid more than the price specified by the mandator, he could not claim the restitution of any costs, not even to the limit specified by the mandator. The Proculians’ opinion on the issue was more favourable to the mandatary, they permitted him to claim restitution of the costs up to the limit specified in the mandate, provided he was prepared to hand the purchased item over to the mandator for the specified price, viz. less than what he actually paid.
In the literature on the subject the Proculians’ opinion is usually treated as self-evident. Most scholars tend to be surprised by the alleged
strictness of the Sabinians.
This paper argues that the Sabinian position is fully understandable
both from the dogmatic and practical point of view, and that contrary
to appearances the Proculian opinion leads to more troublesome
consequences.
One was the unequal status of the parties to the contract. The
mandatary was free to buy the item and keep it for himself if it turned
out to be more expensive than the mandator was willing to pay (G.3,161).
Yet from the Proculian point of view, he could also decide to hand the
item over to the mandatary for the price specified in the mandate. Hence,
it depended solely on the mandatary’s decision if the mandate was to
be completed or not.
In this article I suggest that one of the main reasons underlying the
Sabinian position was to avoid this inequality. It follows from D. 17,1,3,2
that they actually raised this objection against the Proculian view. Their
solution also protected the mandator from possible abuses on the part
of the mandatary, who could have purchased the item for himself, and
only on having discovered defects in it decided to hand it over to the
mandator, thus recovering at least part of the price.

The most complex analysis of the legal consequences resulting from the sale of stolen goods can be found in the Digest 18,1,34,3. Paul frames three separate hypotheses, in which the solutions differ depending on whether the contracting parties, or at least one of them, when stipulating the contract, were aware that the goods for sale had been stolen. If both parties were aware that the object of sale was res furtiva, the contract was void, i.e. neither party was obliged towards the other. Where only the buyer was aware of the circumstances then the seller was not bound by the contract. However, only if he voluntarily delivered his performance, could he demand payment. If only party aware that the goods were stolen was the seller, whereas the buyer concluded the contract in good faith, the sale was valid as a whole. This judgement conforms with the opinion of earlier jurisprudence, especially that of Pomponius.
The question of what reason underpinned the jurists’ decision on the invalidity of sale, which had res furtiva as an object and was concluded by the parties aware of this fact, appears the first problem to be solved. I would rather dismiss the notion that such a solution could have been based either on the idea of impossibility of performance or on the mere mala fides of the contracting parties.
The application of the principle of reciprocity of performances in the case in which the purchaser was umaware that the object of sale was res furtiva> led to the opposite results. Here the claim of the purchaser was subjectively honest, and as such could not be considered contra bonos mores. Hence it was valid. In consequence, the seller being obliged to hand over the goods to the purchaser, was also entitled to payment (and once he had delivered the goods to the purchaser, his claim could no longer be regarded as contrary to bona fides). As a result, in such a situation the contract has to be considered valid as a whole.

Julian, Ulpian and the Atypical Loan: On Analogy as Applied in Legal Reasoning.
The paper concerns the controversy between Julian and Ulpian as to the possibility of transforming a debt that is due under a contract of mandate (or any other consensual contract) into a loan by means of a bare agreament (pactum).  Under such an agreement the creditor would entitle his debtor to keep the equivalent of the debt as a loan. Julian argued against the possibility of classifiying this contract as a loan (D.17,1,34 pr.), whereas Ulpian recognized such a possibility (D.12,1,15). What is interesting, both based their argumentation on the comparison with the case of delegation of a debtor to lend  money to a third person. Ulpian cosidered the latter case analogous to the situation under discussion, whereas Julian ruled out such an analogy. In the article, it is argued that  this diversity of  opinions can be explained by the different views of the loan as a real contract, assumed by each of the jurists.

Che la libertà contrattuale, espressa nel broccardo pacta sunt servanda, fosse diventata un principio pressoché indiscutibile nelle teorie giusnaturalistiche dell’Illuminismo, è conoscenza comune. Le sue radici sono tuttavia molto più profonde, in quanto risalgono al pensiero dei giuscanonisti medievali – i primi sostenitori della forza obbligatoria delle promesse informali. quello che ha portato al riconoscimento defnitivo del principio in questione è stato però un processo lungo e complesso. L’obbiettivo del presente articolo consiste nell’individuare i momenti cruciali di questo sviluppo, al quale hanno contribuito molte correnti intellettuali – dalla canonistica, attraverso la seconda scolastica, fino al giusnaturalismo dell’età dei Lumi. Senza tentare di decidere quale di queste correnti abbia portato il contributo decisivo alla creazione del principio in questione, come ha fatto la letteratura precedente, si propone la tesi che è stata la somma dei detti contributi, ciascuno d...

THE SALE OF STOLEN GOODSSummary The most complex analysis of the legal consequences resulting fromthe sale of stolen goods can be found in the Digest 18,1,34,3. Paul frames three separate hypotheses, in which the solutions differ depending on whether the contracting parties, or at least one of them, when stipulating the contract, were aware that the goods for sale had been stolen. If both parties were aware that the object of sale was res furtiva, the contract was void, i.e. neither party was obliged towards the other. Where only the buyer was aware of the circumstances then the seler was not bound by the contract. However, only if he voluntarily delivered his performance, could he demand payment. If only party aware that the goods were stolen was the seller, whereas the buyer concluded the contract in good faith, the sale was valid as a whole. This judgement conforms with the opinion of earlier jurisprudence, especially that of Pomponius.The question of what reason underpinned the ...

In recent years, Germany, Austria and Switzerland have almost simultaneously embarked on a fundamental change of their federal constitutions. These reform attempts have not only varied in their nal outcomes; they have also displayed considerable differences from the very outset. This paper argues that an ideal type classiication—federalism reform as a 'joint project', 'institutional bargaining' or as 'symbolic politics'—proves helpful in capturing the main procedural and policy-related characteristics of these three reform initiatives in a systematic manner. Recognizable differences result from the speciic interplay between contextual changes, interest constellations of political decision-makers, and institutional preconditions. Zusammenfassung: In den vergangenen Jahren versuchten Deutschland, Österreich und die Schweiz nahezu zeitgleich, ihre bundesstaatliche Ordnung grundlegend zu verändern. Die Re-formergebnisse elen jedoch sehr unterschiedlich aus. Der vorliegende Beitrag zeigt, dass bere-Z Vgl Polit Wiss

This article analyses Austria's first experiences with postal voting on the federal level. After a short description of the background and the history of postal voting in Austria in the first chapter, a critical discussion from a legal perspective regarding the concrete implementation of this type of voting will follow in the second chapter. In the third chapter, the first effects of postal voting will be analysed from the perspective of a political scientist, in particular with regard to the usage of postal voting, effects on voter participation, and the advantages and disadvantages that the Austrian political parties may experience due to the use of postal voting. After having analysed these areas, proposals for reform will be presented at the end.

ZusammenfassungDer Beitrag widmet sich den bislang in der Forschung wenig beachteten Themen populistischer Parteien. Auf der Grundlage eines theoretischen Beitrags zur Definition von Populismus präsentiert der Artikel die Ergebnisse einer Medienanalyse nationaler Wahlkämpfe (2011 bis 2013) in fünf ausgewählten Ländern hinsichtlich der Themen, mit denen die acht untersuchten populistischen Parteien jeweils in Zusammenhang gebracht werden. Diese stützen insbesondere die These einer »dünnen Ideologie« populistischer Parteien.

In den vergangenen Jahren versuchten Deutschland, Österreich und die schweiz nahezu zeitgleich, ihre bundesstaatliche Ordnung grundlegend zu verändern. Die Reformergebnisse fielen jedoch sehr unterschiedlich aus. Der vorliegende Beitrag zeigt, dass bereits die Initiativen zu den benannten Reformversuchen deutliche Differenzen aufwiesen. Mithilfe einer idealtypischen Heuristik-"Gemeinschaftsprojekt", "Tauschgeschäft" oder "Symbolpolitik"-wird die inhaltliche und verfahrensbezogene Ausgestaltung der drei Reforminitiativen systematisch erfasst. Die dabei erkennbaren Unterschiede erklären sich durch das jeweilige Zusammenspiel von funktionsrelevanten umweltveränderungen, der Interessenkonstellation der politischen entscheidungsträger sowie institutionellen Voraussetzungen.

This article analyses Austria's first experiences with postal voting on the federal level. After a short description of the background and the history of postal voting in Austria in the first chapter, a critical discussion from a legal perspective regarding the concrete implementation of this type of voting will follow in the second chapter. In the third chapter, the first effects of postal voting will be analysed from the perspective of a political scientist, in particular with regard to the usage of postal voting, effects on voter participation, and the advantages and disadvantages that the Austrian political parties may experience due to the use of postal voting. After having analysed these areas, proposals for reform will be presented at the end. * I would like to thank Robert Stein, head of the Election Department of the Austrian Ministry of the Interior, and his team for the valuable information and data I was provided with. I also wish to thank Julia Juri, Veronika Krysl, Sebastian Prisching, and Jeanne-Marie Schwarz for their very helpful research and editorial assistance. 1 See e.

Zusammenfassung Der Beitrag widmet sich den bislang in der Forschung wenig beachteten Themen populistischer Parteien. Auf der Grundlage eines theoretischen Beitrags zur Definition von Populismus präsentiert der Artikel die Ergebnisse einer Medienanalyse nationaler Wahlkämpfe (2011 bis 2013) in fünf ausgewählten Ländern hinsichtlich der Themen, mit denen die acht untersuchten populistischen Parteien jeweils in Zusammenhang gebracht werden. Diese stützen insbesondere die These einer »dünnen Ideologie« populistischer Parteien.