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Causa in D. 44,4,2,3

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In Roman law, D. 44,4,2,3 is the reference-text for stipulation without cause. Causality is a characteristic feature of early-modern legal thinking, but it may seem alien to a text from the 3rd century A.D. Would it therefore be possible to understand that text without reading into it the stipulation without cause? If one looks for a single meaning of causa in all the passages of the Digest where the phrase appears, the term seems to have a complex significance, including both a law-suit, litigation, a legal act and a legal fact. In that light, D. 44,4,2,3 takes on another dimension, as the text explains a particular feature of the exceptio doli. This study may thus offer a caveat for differentiating, when reading a text of Roman law, between its original ancient use and its reception during the ius commune era.

Affiliations: 1: Louvain


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