Russian version

The origin of mistakes

"In terms of law only material objects are recognised as things."
The German Civil Code, § 90184

A mistake relating to the nature of money in Russian civil legislation arose because of the fact that Roman law was taken as its basis, without considering the new tendencies in monetary circulation and the monetary system..

In actual fact, in Ancient Rome only object acted as money: metals (copper, silver, gold), because, at that level of trade relations, promissory notes, bills and assignations were not in circulation.

Life has changed substantially since the time of Ancient Rome. Naturally, evolution has also touched the sphere of money. However, contemporary legislators, having revived Roman law in the Civil Code of the Russian Federation, have not taken into account the fact that metal ceased to fulfil the function of a measure of value long time ago, and that deals are no longer conducted with the need for a weighman with scales and weights.

It is possible that the said mistake was a result of an unfaithful translation from Latin, insofar as the Latin word «res» had the two following meanings:

1) a separate, legally independent material entity with clear spatial boundaries;

2) any object (including intangibles — jura) of private law or the civil process (ausa), and also a whole complex of assets (bona, hereditas; patrimonium).185.

Gaius186 thus divides things into tangible (corporals), which it is possible to feel or touch (quae tangi possunt) and intangible (incorporales) which it is not possible to feel or touch (quae tangi non possunt). Gaius interprets the latter not as things in the sense of objects of the external world, but precisely as rights.187

«Intangibles are things which cannot be touched, including those which are listed in the law, such as inheritance, usufruct, liabilities, whatever their form, and the fact that inheritance includes physical items is not at all important… nor the fact that a large part of what is left to us, according to some sort of liability, is a physical object… but the law of inheritance itself, the law of usufruct, liability law are all regarded as res incorporales, i.e. intangible objects»188 (Gai.2.14) This fragment is also reproduced literally in Digests5 (D.1.8.1).189

Contemporary Russian law, however, recognises under the concept of «a thing» only objects of the material world, which exist in their natural condition in nature or are created by the labour of man. 190.

As N.O. Nersesov explained, «references to Roman law (in this case — A.G.) are out of place because securities are essentially a product of the cultural life of new peoples, and consequently, it is not possible to attach to them new norms which are taken from a law foreign to them, Roman law. The latter is of historical interest to present day society and serves as a excellent school for the training of lawyers, but it is impossible to find the answers in it to all questions, occurring in the lives of other nations, at any time» 7.

As N.O. Nersesov explained, «references to Roman law 191are out of place because securities are essentially a product of the cultural life of new peoples, and consequently, it is not possible to attach to them new norms which are taken from a law foreign to them, Roman law. The latter is of historical interest to present day societyand serves as a excellent school for the training of lawyers, but it is impossible to find the answers in it to all questions, occurring in the lives of other nations, at any time»192.

«The majority of lawyers, who are examining contemporary legal phenomena chiefly from the point of view of Roman law, achieve unsatisfactory results which are unrelated to the demands of real life».193.

N.O. Nersesov renders this statement concrete with the example of the negative influence of Roman law on the development of commodity circulation with the help of bearer securities in France.

«The convenience of the examined form of liability in relation to facilitating the concession of rights of demand became hindered by the gradual development of theoretical jurisprudence. The history of the development of juridical thought in France at that time without doubt took place under the strong influence of Roman law.

In their explanations of the different institutions of civil law, lawyers increasingly relied on Roman law. The latter, called droit commun as early as in the 13th century by a lawyer Beaumenoir, as time passed, became in the eyes of lawyers, educated under its exclusive influence, the higher law, autorite.

The influence of Roman law unprofitably affected the theoretical basis of imperfect bearer securities. As a product of the general law of France, these liabilities did not suit the strict demands of Roman contract law. Intricate analysis of juridical concepts was alien to the juridical genius of the 13th-century French; the common sense of the people, having revealed itself in the fragmentary opinions of a small number of professional lawyers of the time and also in juridical practices, considered the bearer (porteur de lettre) as an independent creditor in relation to the promissory document.

Meanwhile, later lawyers, with a better theoretical training, came to apply the Roman theory of mandate to the bearer, the owner of the document. Such a transition, incidentally, was completed gradually. Thus, a 15th-century lawyer Ioannes Gallus, although considering the bearer (porteur) to be the mandatary, maintains that his right according to the document did not end with the death of the trustee.

Someone who talks in particular detail about these liabilities is the 16th-century lawyer Rebuffus, who tries to reconcile the theory of mandate with the independent juridical situation of the owner, by means of supposition (presumption). In his opinion, the bearer always has the Ibidem. P. 199. 182 Part IV. Mistakes in legislation and the role of economic theory right to file a claim on the strength of the supposition that the document came to him as a deed of trust; to this he attaches another basis, that the debtor cannot raise any kind of objection since he has himself promised to make a payment to any bearer.

As a result, triumphant once and for all was the point of view of Roman law, i.e. that the bearer is only an implementer of the rights of another party, the original creditor, and therefore he should have presented either a power of attorney, if he was acting in the name of the principal, or a proof of a completed procedure of cessio bonorum, if he was acting in his own name.

This point of view is reflected in the later versions of coutumes (Translator’s note: bodies of law in force in France until the Revolution) composed undoubtedly under the influence of lawyers educated in theory. The coutumes of Orleans appear, to a certain extent, to be an exception. In the first edition (1509), chapter XXI, Des executions faites par vertu de letters obligatoires etc., art. 348, there is a mention of the «porteur de letters obligatoires» (bearer) who can act in relation to the debtor as if he were an independent creditor. This article remained without alteration even in the revised edition of 1583, only in a different part of the document, precisely in chapter XX, art. 432.

From the article mentioned it appears that the porteur (bearer) is more independent than the ordinary commissioner. This particularly stands out in the second half of the article, where it is said that the bearer may continue the legal suit (of calling the debtor to account) even after the death of the creditor.

We note here that one of the contemporary French lawyers, Amedée Pétit, basing himself on the abovementioned article 432 of the coutumes of Orleans (the 1583 edition), finds that, at that time, genuine bearer securities have already been known. In this he refers to the authority of Potier. In fact this academic explains the phrase in art. 432 «si a ce ledit debteur est oblige» in the sense that the debtor pledged by agreement to pay the bearer, and to this adds that in commercial dealings these bills «sont encore autorises». The opinion of Potier is refuted by the second half of the same phrase, «comme seroit (porteur) le creancier principal», from which it is directly clear that an imperfect form of bearer liability is being discussed, examples of which we included above, i.e. where the debtor is liable to pay a defined, original creditor or a bearer of the document.

The bearer of the document (porteur de lettres obligatoires) had the character of a legal representative, which is clear from comparison with other similar statements of the coutumes. Thus, in the coutumes de Montargis of 1531, in chapter XX, «d’executions de letters obligatoires», the content of art. 432 of the coutumes of Orleans is repeated and the following 26th article states that «lettres obligatoires» cannot be brought into use by the bearer after the death of the creditor and that heirs of the latter may have a claim against the debtor.

From the fact, that the right of the bearer to pursue a claim against the debtor is cut short by the death of the creditor, it is clear that such a bearer is only regarded as an entrusted party, who is acting in the name of the principal, original creditor.

In the coutumes de Blois of 1523, chapter XXIII, art. 250, the same is repeated. In his notes on this article, the 16th-century lawyer Julien Brodeau states that the «porteur de lettres obligatoires» is an ordinary trustee (procurer).

Thus, bearer liabilities, which, according to the development of civil relations, should have turned out to be convenient because of facilitated transferral of rights of demand, on the contrary, lost their original meaning in the 16th century under the influence of lawyers, inspired by Roman law, and, as a result, at that time they did not differ substantially from simple nominal liabilities» 194



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