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The Historical Foundations of Grotius’ Analysis of Delict

The Historical Foundations of Grotius’ Analysis of Delict

The Historical Foundations of Grotius’ Analysis of Delict

Author: Joe Sampson
Publisher: Brill Nijhoff
ISBN: 9789004344365
Published In: December 2017
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

RMB 1,369.37

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Description
Contents

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The Historical Foundations of Grotius’ Analysis of Delict explores the origins of a generalised model of liability for wrongdoing in the history of European private law. Using Grotius as its focal point, it analyses the extent to which earlier civilian and theological doctrine shaped his views. It divides Grotius’ approach into three elements – the infringement of a right, fault, and remediation – and traces the development of parallel concepts in earlier traditions. It argues that Grotius was influenced by the writings of Thomists to a far greater extent than has previously been acknowledged, virtually eclipsing any sign of civilian influence except where Romanist learning had already been incorporated into theological doctrine.

Preface

Acknowledgements

Part I. Introduction

1.

The Place of Grotius in European Private Law

2.

Grotius’ Formulation of Delict

The General Definition

Remediation

The Harm Element

Responsibility

Conclusion

Part II. The Civil Law

3.

The Roman Law of Delicts

Delict and Crime

The Delicts as Conduct-Centric Wrongs

Piecemeal Doctrine and Historical Patchwork

A Plurality of Fault Concepts

The Narrowness of the Interests Protected by Delict

Gaps in the Roman Law of Delicts

Barriers to Generalisation

4.

Delict in the Middle Ages

A Chronological Overview of Delict in the Middle Ages

Fault and Diligence

Doctrinal Developments in the Lex Aquilia

Iniuria

Conclusion

5.

Delict in the Sixteenth Century

Delict and the Mainstream of ‘Legal’ Humanism

Individual Strands within Sixteenth-Century Delictual Scholarship

Donellus and the Generalisation of Delictual Scholarship

The Procedural Bias of Earlier Movements towards the Generalisation of Delict

Conclusion

Part III. Grotius’ Thomist Sources

6.

The Foundations of Thomism

Praise, Blame and Responsibility

Justice as a Virtue

Aristotelianism and Roman Law in Spain

7.

‘Delict’ in the Summa Theologiae

The Structure of Wrongdoing

Commutative Justice and Restitutio

Individual Sins

Voluntariness

Voluntariness and Restitutio

Responsibility and Agency

Conclusion

8.

The Mechanics of Restitutio

Wrongdoing as the Primary Source of Inequality

Commensurability

The Problem of Priorities

Actual and Hypothetical Losses

Excusing Restitutio: Impossibility and Disproportionate Hardship

Conclusion

9.

Sins, Wrongs and Rights

From Specific Wrongs to Protected Interests

The Development of Individual Wrongs

From Wrongs to Rights

10.

Roman Law and Thomism

The Rise of Fault within Thomism

A Syncretic Legal Culture?

Part IV. Conclusion

11.

The Historical Foundations of Grotius’ Analysis of Delict

Remediation

Responsibility

Loss and Harm

Conclusion

Bibliography

Index

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