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LOCATIO CONDUCTIO E VARIETÀ NEGOZIALE IN TEMA DI TRASPORTO MARITTIMO ROMANO

Cordasco Salmena, Giovanni Brandi

Ius Romanum (Sofiâ), 2021 (2), p.269-296

Sofia University »St. Kliment Ohridski

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  • Title:
    LOCATIO CONDUCTIO E VARIETÀ NEGOZIALE IN TEMA DI TRASPORTO MARITTIMO ROMANO
  • Author: Cordasco Salmena, Giovanni Brandi
  • Subjects: Law, Constitution, Jurisprudence
  • Is Part Of: Ius Romanum (Sofiâ), 2021 (2), p.269-296
  • Description: The apparent simplicity of the use of the locatio conductio in maritime businesses hides a negotiation complexity not fully outlined by the available legal sources. The lease is not only a contractual tool appropriate for a great variety of transactions, allowing for all forms of use of res- and personae-related consideration but the apparent rigidity of the typical contractual system is, in fact, only exterior. This is an erroneous proposal that can only be received if one looks not at the tangible operation of the system as a whole but rather in-depth at the individual contractual forms. The contractual typicality was born, as it is well known, not as a result of the free choice of the Roman jurists but as a necessary consequence of the formulating procedure: when the praetor decides to give protection to relationships extraneous to the traditional ius civile, he must abandon the „general“ means of protection in the archaic trial process and specifically indicate which relations he intends to protect, whereas this structure changed by the later introduction of the formulae in defence of civil relations. The typical nature of actions and contracts is not a real obstacle to the proliferation of economic forms as noted by Anna Maria Giomaro a long time ago, because as soon as the system consolidates, forms of protection are devised - such as agere praescriptis verbis - which allows to protect even relationships that do not fall within the typical system or relationships that fit together in such a complex way as to be confusing. The absence of a general theory of the contract that aims to guarantee protection to every relationship worthy of protection is, therefore, only an apparent limit: indeed, it could be said that the need for such a theory is perceived precisely as a consequence of the weakening of the more flexible tool of the Roman law of the classical age, that is the imperium of the praetor. From this point of view, the regulation of Roman maritime transport is still currently an essential methodological tool for establishing the grounds for the resulting phenomena, even when they fall beyond the positive regulations that apply to it.
  • Publisher: Sofia University »St. Kliment Ohridski
  • Language: Italian
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