An Introduction to Roman-Dutch Law

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An

Introduction

to

Roman-Dutch Law

by

R. W. Lee, B.C.L., M.A.

Dean of the Law Faculty, McGill University, Montreal
Advocate of the Supreme Court of South Africa
Of Gray's Inn, Barrister-at-Law
and lately
Professor of Roman-Dutch law in the University of London


Oxford

At the Clarendon Press

1915

Oxford University Press

London  Edinburgh  Glasgow  New York

Toronto  Melbourne  Bombay

Humphrey Milford M.A.

Publisher to the University


Printed in England at the Oxford University Press

To

The Hon. J. G. Kotzé

One of His Majesty's Judges

of the

Supreme Court of South Africa

Late Chief Justice of the Transvaal

Preface

This book, as its title indicates, is an Introduction to Roman-Dutch Law. It has grown out of a course of lectures delivered in the University of London at intervals in the years 1906–14. During this time I was frequently asked by students to recommend a text-book which would help them in their reading and perhaps enable them to satisfy the requirements of the University or of the Council of Legal Education. The book was not to be found. The classical Introduction to the Jurisprudence of the Province of Holland of Grotius, published in the year 1631, inevitably leaves the reader in a state of bewilderment as to the nature and content of the Roman-Dutch Law administered at the present day by the Courts of South Africa, Ceylon, and British Guiana. The same must be said of the treatise of Simon van Leeuwen entitled The Roman-Dutch Law, published in 1664, and of the elementary Handbook of Joannes van der Linden, published in 1806.

Of more modern works the excellent volume of Mr. G. T. Morice entitled English and Roman-Dutch Law scarcely meets the needs of the mere beginner, while the Institutes of Cape Law of Chief Justice Sir A. F. S. Maasdorp, the weighty work of Dr. Manfred Nathan on The Common Law of South Africa, and the Laws of Ceylon of Mr. Justice Pereira, besides being not especially fitted for the use of students, deal only with the laws of the several jurisdictions to which they relate. What was needed was a book of modest compass, published at a reasonable price, which would put a student, whether from South Africa, Ceylon, or British Guiana, in the way of acquiring a knowledge of the general principles of the Roman-Dutch Law as it exists at the present day in Africa, Asia, or America. Such a work would supply an historical background; would refer the reader to the original sources and teach him to distinguish in them what is obsolete from what is of living interest. These, therefore, are the objects which I have set before me. I have aimed at producing not a treatise on the Law of South Africa, or of Ceylon, or of British Guiana in particular, but rather an exposition of the principles of the Roman-Dutch Common Law, which forms the historical basis of all those systems, and which, however much abrogated, limited, or transformed by legislation, by judicial decision, or by custom, is still in greater or less measure the substance of which they consist. It is for the student, principally, that the book is intended and for any other person who may care to have before him a general picture of the Roman-Dutch Law at the present day. The practitioner, should he happen to glance at my pages, may find that I have here or there supplied a reference or suggested a point of view.

Though the book is not bulky, I may perhaps be permitted to say that its composition has involved considerable labour. Research in Latin and Dutch folios and quartos of bygone centuries takes time and the results are not always immediately apparent.

Amongst well-known text-writers my references are principally to Voet, Van Leeuwen, Van der Keessel and Van der Linden. The citations of Van der Keessel's Dictata are from manuscript copies in my possession, which I have reason to believe conform substantially to the Leyden exemplar. For the rest, my studies have been partly conditioned by the contents of my own library. It will probably be thought that my citations are on the whole sufficiently numerous. Circumstances have prevented me from referring as often as I should have wished to many valuable articles in the South African Law Journal. I must be content with a general mention of that excellent review.

In the spelling of Dutch words I have as a rule followed the vagaries of my original. In citing Grotius I have usually quoted the first or second edition of the Inleiding. This accounts for such strange forms as ‘muirbezwaring’, ‘inbalcking’, &c.

For the law of South Africa and Ceylon I have made use of the works mentioned above as well as of Messrs. Bisset & Smith's Digest of South African Case Law. For the law of British Guiana I have received valuable help from Mr. W. J. Gilchrist, Barrister-at-Law of Gray's Inn, who holds an important position in the Civil Service of the Colony. The notes from his hand have in many cases been indicated by the letter ‘G’ between square brackets; but my indebtedness goes beyond what is thus formally acknowledged. My thanks are due also to my former pupil Mr. E. Draper, of the Inner Temple, for many useful references to South African cases.

I have to express my gratitude to the Delegates of the Clarendon Press for acting upon the maxim ‘Business as usual’, and persevering with the publication of this work notwithstanding the outbreak of the European War.

With regard to the proposed abolition of the Roman-Dutch Common Law in British Guiana, my latest information is that a Committee has been appointed by the Governor to advise as to the necessary legislation.

My recent removal to Montreal, where I have not access to South African Law Reports and other necessary books of reference, has hampered me a little in seeing the work through the press. I trust, however, that any errors which may arise from this cause will be neither numerous nor important.

My friends Dr. W. R. Bisschop, Barrister-at-Law of Lincoln's Inn and the Middle Temple, and Mr. J. C. V. Behan, Barrister-at-Law of the Middle Temple and Fellow of University College, Oxford, have given me kind assistance in correcting the proofs.

I am permitted to dedicate my book to the honoured name of Mr. Justice Kotzé.

R. W. Lee.

Montreal,
June 18, 1915.

Contents

Page
Authorities cited or referred to with Mode of Citation xiii
Table of Law Reports with Mode of Citation xviii
Table of Cases xx
Table of Statutes xxix
General Introduction 1
Appendix: How far the Statute Law of Holland obtains in the Colonies 24
Chapter I. Birth, Sex, Legitimacy 28
Section 1. Birth 28
Section 2. Sex 28
Section 3. Legitimacy 28
Chapter II. Parentage 31
A. The reciprocal duty of support 31
B. The parental power and its consequences 32
Chapter III. Minority 37
Chapter IV. Guardianship 44
Section 1. The Kinds of Guardians and the Appointment of Guardians 44
Section 2. Who may be Guardians 50
Section 3. The Powers, Rights, and Duties of Guardians 52
Section 4. Actions arising out of Guardianship 60
Section 5. How Guardianship ends 63
Chapter V. Marriage 64
Section 1. The Contract to Marry 64
Section 2. The Legal Requisites of Marriage 66
Section 3. The Legal Consequences of Marriage 77
Section 4. Ante-nuptial Contracts 83
Section 5. Dissolution of Marriage 98
Section 6. Miscellaneous Matters relating to Marriage 100
Chapter VI. Unsoundness of Mind. Prodigality 103
Chapter VII. Juristic Persons 105
Appendix A. Form of Grant of Venia Aetatis in Ceylon 107
Appendix B. Form of Ante-nuptial Contract in use in South Africa 108
Chapter I. The Meaning of Ownership 111
Chapter II. Classification of Things 112
Chapter III. How Ownership is acquired 119
Chapter IV. Ownership 135
Section 1. The Incidents of Ownership in General 135
Section 2. The Kinds of Ownership of Land 139
Chapter V. Possession 144
Chapter VI. Servitudes 148
Chapter VII. Mortgage or Hypothec 162
Appendix A. Rights of the Public and of the Crown in the Seashore 182
Appendix B. The System of Conveyancing in British Guiana 184
Part I. Obligations arising from Contract 188
Chapter I. Formation of Contract 189
Section 1. The Parties must be agreed 190
Section 2. The requisite Forms or Modes of Agreement, if any, must be observed 195
Section 3. The Agreement must not have been procured by Fraud or Fear 200
Section 4. The Agreement must not be directed to an Illegal Object 205
Section 5. The Parties must be competent to contract 210
Chapter II. Operation of Contract 210
Section 1. The Persons affected by a Contract 210
Section 2. The Duty of Performance 217
Section 3. The Consequences of Non-performance 227
Chapter III. Interpretation of Contract 233
Chapter IV. Determination of Contract 234
Chapter V. Plurality of Creditors and Debtors 244
Chapter VI. Special Contracts 247
Part II. Obligations arising from Delict 267
Part III. Obligations arising from Sources other than Contract and Delict 282
Appendix: Liability for Injury by Animals 283
Chapter I. Succession in General 285
Chapter II. Testamentary Succession 290
Chapter III. Intestate Succession 326
Appendix: Precedents of Mutual Wills from South Africa 345


This work is in the public domain in the United States because it was published before January 1, 1923.


The author died in 1958, so this work is also in the public domain in countries and areas where the copyright term is the author's life plus 50 years or less. This work may also be in the public domain in countries and areas with longer native copyright terms that apply the rule of the shorter term to foreign works.