Ateneo - UPO

The course takes a historical-legal and Roman law-based approach, founded on the view – widely shared by scholars across various legal disciplines – that Roman law forms the common foundation of the Western legal tradition. The specific content focuses on the subject of the sources of obligations, approached from a perspective which, starting from Roman legal sources, enables an understanding of aspects of positive law that touch upon matters directly connected with the structure and scope of the legal system considered as a whole. Furthermore, this topic unfolds into a series of issues of not only systematic but also practical significance, the historical solutions to which also involve, from time to time, changes in fundamental legal thinking.

For attending students: Carlo Augusto Cannata’s book Materiali per un corso di fondamenti del diritto europeo, Volume II (VOLUME II ONLY), Giappichelli Editore, Turin 2008, in its entirety, without exception, plus the lecture notes.
For non-attending students: Carlo Augusto Cannata’s book, Materiali per un corso di fondamenti del diritto europeo, Volume II (VOLUME II ONLY), Giappichelli Editore, Turin 2008, in its entirety, without exception, plus Paola Lambrini’s book, Fondamenti del diritto europeo. Manuale istituzionale, Giappichelli Editore, Turin 2021, chapters XII to XX inclusive (pp. 143–268).

The course aims to enable students to gain an understanding, on the one hand, of the unified nature of the Western legal tradition and, on the other hand, of the separation and national specificity of legal systems and the corresponding legal scholarship. The course is designed to familiarise students with the common foundations of modern national legal systems and to help them understand the differences that currently exist between them; to make them aware that law has not developed (and consequently cannot be properly understood) within an exclusively national context, but must be studied from a broader perspective that allows for an understanding of the common roots of European law.

Passing the Roman Law exam; a good understanding of the law of obligations.

Face-to-face lectures, involving the analysis of sources in which students will be expected to participate actively; they will be engaged in reading, commenting on and interpreting legal texts. To participate effectively in the lectures, students must have the textbook containing the sources to hand; students are therefore advised to bring it to class from the very first day.

Attendance is not compulsory, but is strongly recommended; students are considered to have attended the course if they have been present for at least 33 hours out of the 45 hours that make up the course. Attendance is verified on the basis of signatures taken during lessons and, where necessary, by taking the roll.
Students with physical disabilities, Learning Disabilities or Special Education Needs can request
specific services and tools via the Staff Sviluppo e Coordinamento Carriere e Servizi alle Studentesse
e agli Studenti, consulting the University webpage: https://www.uniupo.it/en/services/services-
students-physical-or-learning-disabilities. Students with disabilities, learning disabilities or special education needs, once they have contacted
the University Staff, can refer to the tutor in charge of the course to define the examination
modalities, concerning academic aspects.

Oral examination, comprising at least three questions which may relate to either the texts covered in class or more strictly theoretical topics. There are no mid-term exams.
GRADES
30, 30 and praise EXCELLENT: The student demonstrates a comprehensive and detailed knowledge of the subject matter, expounds in a clear and structured manner, with excellent ownership of language, and is able to adequately grasp the evolving contours of legal institutions.
28,29 OPTIMUM: The student demonstrates a thorough knowledge of the subject matter, expounds adequately-though with minor gaps and/or inaccuracies-employs correct terminology, and is able to place legal institutions in their historical context.
25-27 GOOD: The student demonstrates adequate knowledge of the subject, although he/she does not fully explain the relevant aspects, sometimes does not express him/herself precisely, sometimes is unable to grasp all the elements of the regime of legal institutions and to place them in their context.
22-24 DISCRETE: The student demonstrates acceptable knowledge of the subject matter, sometimes fails to organize the exposition in a structured and coherent manner, denotes gaps and/or inaccuracies of both terminology and content, and struggles to place the institutes in the context of reference.
18-21 SUFFICIENT: The student demonstrates limited knowledge of the subject matter, has present the basic contents of the discipline, but denotes even significant gaps, expresses himself in a confused and unclear manner, and is often unable to place the institutes in the context of reference.
INSUFFICIENT: The student demonstrates completely inadequate knowledge of the subject, does not have the basic content of the discipline in mind, expresses himself incorrectly and ignores technical terminology, and does not respond to questions put to him.

PREFACE
THE SOURCES OF OBLIGATIONS I: 1. Introduction; 2. The current situation in European law; 3. The first divisio obligationum and its practical function; 4. The divisio obligationum in Gaius’s ‘Institutions’; 5. Modestinus’s divisio obligationum; 6. The Epiclassical classification of ‘res cottidianae’; 7. The sources of obligations in Justinian’s ‘Institutions’:
THE SOURCES OF OBLIGATIONS II: 8. The classifications of the ‘Corpus Iuris’ as interpreted by medieval jurists; 9. The following centuries: introduction; 10. The difficult history of quasi-delicts; 11. The enduring problem of quasi-contracts.
THE SOURCES OF OBLIGATIONS III: 11.1. On the ‘quasi-contract’ in English Common Law: the case of Craven Ellis v. Canons, Ltd; 11.2. The Hamburg car park case; 12. A concluding observation.

Knowledge: students will be familiar with the various classifications of the sources of obligations in Roman law; the classifications of the sources of obligations as interpreted by medieval jurists and jurists of subsequent periods, with particular attention to the categories of quasi-delicts and quasi-contracts; the practical applications of the category of quasi-contracts for the purpose of framing new legal solutions, with the presentation of two model judgements, one English and one German.
Skills: students will be able to master the various classifications of the sources of obligations and identify, from a diachronic and comparative perspective, the most significant aspects of their evolution; they will be able to reconstruct the ways in which the Roman law categories were reworked by medieval jurists until they were incorporated into modern European civil codes; they will be able to comment on and critically interpret the sources covered in the course, placing them within their relevant historical and legal context and identifying the aspects that allow for connections and comparisons with current positive law.
Transversal skills:
a) Independent judgement: students will develop the ability to exercise critical discernment when analysing theoretical problems and practical cases.
b) Communication skills: students will acquire the technical vocabulary that will enable them to argue with logical rigour and to explain complex concepts appropriately.
c) Capacity for learning and comparative analysis: students will gain an understanding of key aspects of the historical dimension of law, which will be useful for applying the comparative method and interpreting the evolving features of contemporary law.