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Full Access Sola scriptura, An essay in comparative legal history on 'obligacions' in thirteenth century France and England

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Sola scriptura, An essay in comparative legal history on 'obligacions' in thirteenth century France and England

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It is contended in this article that the doctrine of litterarum obligatio, as developed by Jacques de Révigny on the basis of Inst. 3,21, was not inspired by Roman law, but by the 'lettre scellée' of contemporary French customary law. It is also argued, that the English deed is the equivalent of the 'lettre scellée' of medieval French customary law, like the English recognizance is the equal of the publicum instrumentum, the 'lettre de baillie', of French customary law. They were primarily executory instruments, devised to prevent litigation by allowing for executory proceedings to be initiated after a summary hearing in court. They were the products of a legal culture that did not, as yet, recognize national boundaries. Nevertheless, English law was about to break away from its continental origins, by continuing to employ legal expedients, such as the deed, which, on the continent, were beginning to become obsolete, or completely changed in character, on account of the persistent pressure of canon law and Roman law. The demise of the deed on the continent was mainly, if not exclusively, due to the influence of Roman law and canon law, which allowed for parole evidence to defeat any instrument. The persistence of the deed in English law was guaranteed by the fact that it did not allow this to happen.


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