On The Theory Of Roman Law On The Reasons For The Changes In Germany And France

In this thesis the author analyzes the causa of contract and transfer; discusses the development of the cause theory in the Roman law and the German law, and points out:On the problem of contractual causa, along with the gradually simplify of contractual form in the Roman law, the status of consensus rised gradually and the causa became more and more important in the contract. Correspond with this the contract changed from abstract act to causal act, from formal act to informal act. The meaning of causa is not the purpose of trade but a kind of substantive change of benefit. The basic function of causa lies in removing the abstract contract; Stipulation showed a kind of tendency that a contract eliminates the substantive change of benefit. Under the Middle Ages scholar's influence,German scholars began to adopt systematic method and explained causa according to the sprit of that time. At the end, the standpoint that causa was aim occupies the predominant position; so that in the usus modernus pandectarum time the causa losed its important place in contract law.On the problem of causa of transfer, the author thinks that in Roman law the causa of transfer refered to the juristic act of jus in persona. In regard to the three forms of transfer: mancipatio, in iure cessio and tradizione, Mancipatio and in iure cessio belonged to abstract act .the ground of the abstraction lied in fiction. In Mancipatio the law supposed a business relation and in in iure cessio the law supposed a judicial decision. Tradizione experienced a transformation: from complicated act via simply act to complicated act and from abstract act to act with causa .The German law inherited this kind of development trend of the Roman law. Along with academic accumulation and the influence of Kantian Philosophy, especially with the study of Savigny, transfer was interprets to juristic act of real right; at the same time the juristic act of jus in persona was interprets to motive. Through those explanations the Principle of Abstraction was systematized and rationalized. But the author thinks that abstraction only is logical. Transfer is influenced by the...