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8. Law and Equity at Odds: Liability of a Principal for Accidental Losses Suffered by his Agent

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Chapter Summary

In the long history of the relation between equity and law, there is hardly a text in Justinian's Corpus Iuris that has drawn so much attention as the opinion of the Roman lawyer Paul on the liability of a principal for accidental losses sustained by his agent in the execution of his commission. This chapter shows how opinions on the equity of this provision have varied over time, from the Middle Ages until recent Dutch legislation on this issue. It starts with a discussion of the text according to classical Roman law. The chapter explains what Roman lawyers meant by the concept of 'good faith' (bona fides). Then, the chapter turns to the Accursian Gloss on D. 17,1,26,6. The last phrase of the Gl. 'Mandato' on D. 17,1,26,6 has caused a genuine division in the continental civilian tradition.

Keywords: bona fides; classical Roman law; Dutch legislation; equity; Justinian's Corpus Iuris



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