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Abstract

The aestimatio damni under the lex Aquilia in Early Modern German Jurisprudence. Early-Modern German jurisprudence thus interpreted the estimation clauses of the lex Aquilia, that it was the damaged object which had to be valued, not the plaintiff's loss (unless his damage exceeded the thing's value). Thus derives from the way killed and injured lifestock were cal-culated.

AbstractIn 1215, the Fourth Lateran Council settled a controversy between theologians and jurists with regard to the duty to make restitution. This moral duty was not always recognized at law because of the limitation of claims, which the jurists derived from Roman Law (C. 7.39.3) and which they termed as longissimi temporis praescriptio. Hence, correcting a statute that cannot be observed without peril to one' soul, the council required that the person who prescribes, must not know at any time that the object belongs to someone else. The effect in legal practice may have been minor, for the canonists presumed the possessor's ignorance after thirty years of uncontested possession. It was to the other party, the claimant, to disprove this presumption. Even if, by exception, there was a presumption to the contrary, the defendant invoking prescription could avoid proving his good faith by oath, for the presumtion then derived from the combination of the lapse of time and a proper cause (titulus) of his possession

Within both the Civil Law and the Common Law we find means of acquiring and losing rights, or freeing ourselves from obligations by the passage of time. The ratio thereof is twofold: (1) in the words of Oliver Wendell Holmes, Jr. »Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example« and (2) A claim should not hang above the head of the debtor as if it were a Damocles`sword, or (on the words of Best CJ »long dormant claims have more cruelty than justice in them.« This ratio is and has been felt strongly in every jurisdiction, but legislation, case law and jurisprudence but the specifications thereof show substantial dissimilarities, notably between the Common Law and the Civil Law, even thus that in recent times several Law Commissions reported about future modifications and other jurisdictions enacted new legislation. This book gives the necessary historical background on a comparative basis