Diachronic and Comparative Reflections in the Matter of the Concept of the Arrha: A Roman Law Notion Lost in the Modern Scottish System and the Renowned (But Probably Not Totally Demonstrated) 'Binding' Nature of the Missives

Pierre de Gioia-Carabellese

Research output: Working paper

Abstract

A jurisdiction such as the Scottish one, reputedly with solid Roman roots, is practically bereft of the fundamental concept of a deposit in the concluding passage of the missives. Alternatively, the relevant "ancestor" (Roman law) has been profoundly permeated, throughout the course of its history, by the notion of an arrha (the earnest) in the conclusion of a contract annexed to the transfer of heritable properties. Moreover, in contemporary times and outwith Scotland, a Continental jurisdiction (the Italian one) is resolutely lingering on the Roman caparra penitenziale while, ironically, the English system (comprehensively "un-Roman" in its formation) has expressly adopted the "deposit" as part of the closing particulars.These asymmetries and crossovers, brim-full with inviting legal ingredients, seem, in the present work, to conjure up an intriguing and captivating plot worthy of an Indiana Jones' film, where the lost treasure can be deemed replaceable, for the distracted reader, by the ancient Roman notion of an arrha, so evidently not inherited by the contemporary Scottish jurisprudence. Ultimately, the contribution engenders the usual unsettling query: in the light of the phenomenology of the arrha so neglected in Scotland in contemporary times, is Scottish law still a mixed legal system or, conversely, a jurisdiction progressively getting closer to the English common law counterpart?!!!
LanguageEnglish
PublisherUniversita degli Studi di Venezia (Ca' Foscari)
Number of pages27
DOIs
Publication statusPublished - 24 Jun 2014
Externally publishedYes

Publication series

NameWorking Paper Series
PublisherUniversita Ca Foscari Venezia
ISSN (Electronic)2239-2734

Fingerprint

Roman Law
Diachrony
Jurisdiction
Scotland
Continental
Phenomenology
Indiana Jones
Common Law
Reader
Ancestors
Jurisprudence
Legal System
Fundamental
Treasure
History
Asymmetry
Plot

Cite this

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