The paramount role of Roman law and its terminology in the development and research of medieval law are elaborated on the example of pignus rei immobilis in the law of Tripartitum. The impetus to the paper came with the interpretation of...
moreThe paramount role of Roman law and its terminology in the development and research of medieval law are elaborated on the example of pignus rei immobilis in the law of Tripartitum. The impetus to the paper came with the interpretation of pignus rei immobilis made in the Textbook of private law of Tripartitum by Lanović at the beginning of the 20th Century when he tried to elucidate one of the existing theories on the nature of pignus rei immobilis based on the similarity to Roman law fiducia, envisaged by Lanović as “sale on faith”. In the first part of the paper the theories about fiducia cum creditore as sale for repurchase are analysed. It is considered that fiducia could have been realized in its proto-form, when mancipatio was still a real sale, as sale for repurchase, but in later law it is not conceivable. In the following parts the author investigates the development of the definition of pignus on immoveables (real estate lien) in Hungarian-Croatian medieval law, the Law of Tripartitum, from the original text up until the early 20th Century, especially emphasizing the role of Huszty, prior attributed to Kelemen by Lanović, in the adjustments made to the definitions of pignus regarding the Roman law tradition and ius commune. The paper illustrates the importance of definitions in Roman law for comparative legal research, the possibilities and entrapments they hide, but also the chances of clarification through feedback.
