Professor Francesco Giglio

A seminal presentation held by Max Kaser at Paris University in 1962 is taken as thestarting point of an analysis of factual interpretation in legal adjudication. Despite not being atheorist, Kaser, it is argued, was able to identify the relevance of intuition in the judicial debatethrough which the parties seek to convince the judge. The question identified in the title of thispaper is discussed on the basis of a critical examination of three of the greatest scholars of theirgeneration: Theodor Vieweg, Kaser himself and Franz Horak. All three contribute, in differentfashion, to an understanding of the process of ‘finding the law’, or Rechtsfindung. This concept ishere considered from the perspective of Cicero’s partition of the legal discourse in ars inveniendiand ars iudicandi, which is tied to the Aristotelian analysis of syllogistic reasoning.

With his ‘event-based classification’, the late Peter Birks provided a coherent and principled framework for the civil law of obligations. In this article, ‘restitution’ is considered in the context of his taxonomy and two main propositions are advanced. The first proposition is that ‘gain-related recovery’ is the most adequate description of restitution as a legal response. The second proposition is that the term ‘restitution’ qualifies the mechanism of taking away the defendant's benefit without any direct reference to the immediate purpose of the award and therefore has both a ‘giving up’ and a ‘giving back’ function. Those theories which distinguish these two functions, it is argued, confuse the mechanism of the right realized with the aim of the response awarded. Restitution as a legal response can be applied to reach different aims, such as giving back wealth mistakenly transferred by the claimant to the defendant or surrendering profits wrongfully obtained by the defendant. Yet, the right to restitution which is realized in court operates always in the same fashion: it transfers to the claimant wealth up to the level of the defendant's benefit. This interpretation tackles the criticism of those favourable to ‘disgorgement’, that is ‘giving up’, as an independent legal response and shows that their concerns are justified, but do not affect the consistency of the event-based classification.

This chapter draws on Roman law to build a new descriptive and analytical framework based upon the ideas of windows, (de)coders and travellers with a view to confronting contemporary understanding of private international law and public international law. We seek to identify in legal thought and practice common denominators between these disciplines in terms of methodology and legal reasoning. In shedding light on convergences between these two areas of international law, we will show that, in many respects, they are not distinct from one another, thereby suggesting that they rest on common methodological patterns.

On the basis of an analysis mainly focussed on the legis actiones, the formulary trial and the actio Publiciana, it is shown that there was no substantive difference betwixt absolute and relative ownership: both species of ownership concerned absolute rights. As well-known, the demise of the legis actiones signified for Max Kaser the end of relative ownership. However, the co-existence of different actions founded upon the meum esse claim suggests that ownership was relative even under the formulary system. It appears therefore that the co-existence of absolute rights over the same thing was a characteristic element of Roman law during the period examined. Possible clashes between these rights were resolved at procedural level. This account of ownership finds some support in Cicero’s work. : Auf der Basis einer Analyse, die sich hauptsächlich auf die legis actiones, das Formularverfahren und die actio Publiciana konzentriert, wird gezeigt, dass es keinen bedeutenden Unterschied zwischen absolutem und relativem Eigentum gibt: beide Arten des Eigentums betreffen absolute Rechte. Wie bekannt ist, bedeutete das Verschwinden der legis actiones für Max Kaser das Ende des relativen Eigentums. Allerdings weist die Koexistenz verschiedener Klagen, die auf dem meum esse Anspruch beruhen, hin, dass das Eigentum selbst gemäß des Formularverfahrens relativ ist. Es scheint deswegen, dass die Koexistenz absoluter Rechte an der selben Sache während der untersuchten Periode ein charakterisches Element des römischen Rechtes war. Mögliche Konflikte zwischen diesen Rechten wurden auf Verfahrensebene gelöst. Die darstellende Erläuterung des Eigentums findet Unterstützung in Ciceros Werken.

Gaius was the first Roman jurist to classify legal things into corporeal and incorporeal. His influential classification did not expressly mention the right of ownership. The German Pandectists justified this absence arguing that the list of tangibles referred to the objects of ownership. Following Pandectism, many modern legal systems acknowledge ownership only with regard to corporeal things. This paper departs from the Pandectists' conclusions. The categorization at issue should be read as part of Gaius's effort to educate his students for the legal profession. Gaius proposed a coherent classification embedded into a clear didactic project. The jurist was not seeking to advance a theory of ownership, but to link the legal actions to their objects.

The law of enrichment addresses situations of misplacing wealth. It is not clear in English law whether the restitutionary claim in enrichment requires an ‘unjust’ or an ‘unjustified’ transfer of wealth. The author argues that the two adjectives indicate the existence of two claims, which differ in their structures and aims. ‘Unjust’ and ‘unjustified’ misplacements account for two different legal principles. ‘Unjust’ enrichments refer to a concept of fairness in legal transfers which is independent of strictly legal rules. ‘Unjustified’ enrichments trigger a legal response based on the lack of justification of the transfer. The two actions originate in Roman law. After having presented the origin and function of the claims, the first part of the article outlines their evolution in the German, French, and Italian legal systems. The second part examines whether the Roman law partition can be used to develop a systematic account for English law. Although the framework is still unsettled, it seems that the English law of enrichment may benefit from analysis in the light of a dual structure akin to the one which, in the author's view, characterizes the civil jurisdictions under examination.

The paper offers the English perspective on the Dutch Hammock case. After an analysis of statutory and common law, particularly consumer protection and occupier's liability, the author comes to the conclusion that the victim would not be successful in an English court under the present scenario. Although it cannot be excluded that the English judiciary might follow its Dutch counterpart in the future, such drastic change seems quite improbable at present.

In this essay, I seek to provide an account of the scope and justification of gain-based damages for civil wrongs. My starting point is that the main accounts of restitution for wrongs are inconsistent with the structure of the law of damages. My alternative explanation provides a framework which is coherent with the law of obligations and allows a reading of restitution for wrongs in terms of corrective justice. When a wrong affects a proprietary or proprietary-like interest, I argue that the normal response is compensation, not restitution. In this context, I introduce the expression ‘pseudo-restitutionary damages’ to identify those awards in which the claimant’s loss is measured by the defendant’s gain. The true nature of pseudo-restitutionary damages is revealed by their close link to the loss. When the loss disappears, the benefit disappears with it. Unlike pseudo-restitution, proper restitution for wrongs requires a benefit which is independent of the loss and is only connected to the wrong. The benefit cannot be dissociated from the claimant’s loss if it is the consequence of a wrongful direct transfer of wealth from the claimant to the defendant. Corrective justice can account for proper restitutionary damages. It provides a normative ground for the victim to seize the defendant’s gain independently of any loss suffered by the victim. It isolates the wrongdoer and the victim as the parties to a restitutionary claim. The award is granted because it would be unjust if the wrongdoer would go scot-free with his wrongful gains; and it is granted to the victim because any wrongful behaviour is detrimental to the sufferer of the injustice. Although quite distinct, compensation and restitution for wrongs show certain structural similarities. The former aims to place the victim in the same position in which the victim was before the damaging event took place; the latter seeks to place the wrongdoer in the same position in which the wrongdoer was before he performed the wrongful act. Both legal responses aim at neutrality as between the pre- and post-wrong position but in respect of different parties.

On the basis of a comparison between common law and Roman law, it is argued in this paper that, despite the common-law focus on title, the common-law and the civil-law concepts of ownership are not as far apart as often thought. Title and ownership right are not logically incompatible, and the common law has room for both: ownership is a substantive right; title is an operative, procedural tool that supplies the essential dynamism to the static right of ownership. Nor are relative and absolute ownership systemically incompatible in the civil law, as evidenced by Roman law. A study of the works of Blackburn, Austin and Honoré – three influential authors with an expertise in Roman law – suggests that Roman law provides helpful elements for a comparison with the common law, but only if it is used to understand the common law, as opposed to forcing inadequate structures upon it. Austin’s and Honoré’s attempts to read the common-law ownership through the lenses of Roman law offer two instances of the risk linked to such approach. Auf der Grundlage eines Vergleichs zwischen dem Common Law und dem römischen Recht wird in diesem Aufsatz diskutiert, dass, obwohl im Common Law ein Fokus auf dem Titel (title) liegt, die Eigentumsbegriffe im Common Law und im civil law nicht so weit auseinander liegen, wie oft geglaubt. Titel und Eigentumsrecht sind logisch nicht inkompatibel. Das Common Law hat Raum für beide: Eigentum ist ein materielles Recht; der Titel ist ein operatives, verfahrensrechtliches Werkzeug, das dem statischen Recht des Eigentums eine wesentliche dynamische Kraft verleiht. Auch sind relatives und absolutes Eigentum nicht systemisch inkompatibel im Civil Law, wie durch das römische Recht belegt wurde. Eine Untersuchung der Werke von Blackburn, Austin und Honoré – einflussreiche Autoren mit Expertise im römischen Recht - deutet darauf hin, dass das römische Recht nützliche Elemente für einen Vergleich mit dem common law aufweist. Dieses aber auch nur dann, wenn es genutzt wird, um das Common Law zu begreifen, anstatt diesem inadequate Strukturen aufzuzwingen. Austins und Honorés Versuche, das Common Law Eigentum mit einer römisch-rechtlichen Blickweise zu betrachten, bieteten zwei Beispiele des Risikos, das mit einem solchen Ansatz verbunden ist.

Roman law provides helpful lessons on legal methodology for Romanists and modern lawyers alike. The meeting of Roman law and Greek philosophy was the catalyst for the transformation of Roman law into a legal science, in which the axiomatic structure of the norm was linked to the facts of the case by way of the dialectical syllogism and topical reasoning. The Romans understood that the barrier that separates law from society is permeable. In this paper, it is shown that there is a tension within the legal systems between the guidance provided by the regulae, or legal rules, and the need to allow for open arguments, which are windows on the outside world enabling the system to grow in line with social developments.

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant. In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

'Restitution for wrongs', or 'restitutionary damages', is the judicial award which compels the wrongdoer to give up to the victim the benefit obtained through the perpetration of the wrong, independently of any loss suffered by the victim. The establishment of a civil trial in Roman law, which left compensation as the main response, and a widespread, loss-centred interpretation of the Aristotelian theory of corrective justice explain, but do not justify the difficulties encountered by modern attempts to account for restitutionary damages. Mistakes in the classification of this institution have complicated the picture. To overcome some of these problems, this study considers the basic structure of restitutionary damages from different angles. In part one, the topic is analysed from a comparative perspective. Although the focus remains on English law, the German, the Italian and the Roman jurisdictions provide research data which, in part two, support the development of a theory of restitution for wrongs as corrective justice.

The English law of unjust, or unjustified, enrichment is part of the civil law of obligations, which comprises also the law of contract and the law of torts. A claim based upon the recipient’s enrichment requires that the defendant be benefited at the expenses of the claimant and that the transfer of wealth from the claimant to the defendant be tainted by an unjust factor. A claim in unjust enrichment aims to achieve restitution of the defendant’s gain, whereas a claim in tort redresses the loss of the claimant. Unlike tort law, the wrongfulness of the defendant’s behaviour is not a requisite of the cause of action in unjust enrichment. In this paper, enrichment claims will be examined from the perspective of a theory which considers the law of enrichment in historical and comparative perspective. In applying this theory, I will argue that, in many European legal systems, civil claims which target the defendant qua enriched, as opposed to wrongdoer or contractual party, show a tendency to follow two main patterns. They are prone to lean either towards a strict legal principle or towards a more lenient approach linked to a principle of justice. Accordingly, it has been submitted that the qualification of the enrichment reflects this partition: ‘unjustified’ enrichment claims display different characteristics and a different application radius in comparison with claims which are triggered by an ‘unjust’ enrichment. This view has been advanced and defended elsewhere. Its precepts will be only summarised here to set the framework for its application to a decision of the House of Lords, Sempra Metals v. Inland Revenue Commissioners, which raises the question of the position taken by English law within this European trend. After a brief exposition of the account which distinguishes the concepts of ‘unjust’ and ‘unjustified’ enrichment, I shall consider some questions which emerge from the analysis of the judicial opinions in Sempra. I shall argue that Sempra raises structural issues similar to those which characterise civil law developments in this area. Their Lordships’ opinions reveal a certain degree of consistency between English law and the dual-pillar approach which, it is suggested, is a recurrent, albeit unstated, character in the law of enrichment of civilian systems. As the historical development of civil law models indicates, the polarisation of the legal actions is likely to be due to a tension between the clarity and relative strictness of the claim in unjustified enrichment on the one hand and the flexibility of the claim in unjust enrichment on the other hand. This tension between the two claims is to be welcomed since it sharpens the remedial tools at the court’s disposal to nullify the consequences of misplacements of wealth. This paper is not intended as an essay on Sempra even though this judicial decision is central to it. As such, no attempt will be made to engage with all the issues raised by the Law Lords nor will the main theoretical accounts of unjust enrichment linked to this case be reviewed. Rather, the Sempra case will be used as a means by which the theory distinguishing unjust and unjustified transfers of wealth, and in particular its practical significance, will be tested. Since the essay is not primarily targeted at Roman lawyers, the analysis of Roman law will be kept to a minimum.

The tort of conversion is examined through five theses with the aim to show its relevance for commerce. It may appear counterintuitive that a strict liability tort facilitates the flow of goods. Yet, legal comparison suggests that there is a functional difference between conversion and the Roman vindication, which protects ownership. A comparison with the Roman delict of furtum, or theft, is arguably more appropriate to provide a clearer picture of conversion. Each thesis, even when it is rejected, contributes to corroborate the final thesis on the role of conversion as an institution that provides a higher level dynamicity than the systems which focus on vindication.

In this paper, the actio furti is examined from the perspective of the claimant. After a brief overview of the literature, the main thesis is introduced according to which the actio furti concerned a legal dispute over the control of a thing. The central section of the investigation is dedicated to an analysis of the sources, and particularly to the references to ownership and possession as the gateways to the action. It is followed by a fully-fledged exposition of the theory of control in which it is argued that the aim of the action was the protection of the circulation of goods. Between ownership and commerce, the actio furti privileged the latter over the former.