I. Erzähltes Recht – Neue Wege zum mittelalterlichen RechtsbegriffDilcher, Gerhard
2022 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Germanistische Abteilung
doi: 10.1515/zrgg-2022-0001
AbstractNarrations of Law. New paths to a conception of medieval law. The article, starting from a review of two publications on medieval Scandinavian literature, tries to find out the role of law in the sagas of medieval Iceland, dealing with mostly bloody conflicts in a society without a ruler or state. Different from classical legal history, today we have to understand law in this context not as a systematic order of norms, but instead as an oral tradition in a world of mainly violent solutions of conflicts by revenge, partly by mediation or arbitration, seldom through a legal proceeding. Not a norm of law, but a compensation in relation to the honour or social position of the parties is the key for a solution. – The theory of a radical cultural change in history (axial age) turns out to be useful for understanding the changing role of law in medieval societies, including Scandinavia.
II. Calefurnia – eine römische Frau im Sachsenspiegel?Holfeld, Raphael; Horn, Julia-Katharina
2022 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Germanistische Abteilung
doi: 10.1515/zrgg-2022-0002
AbstractCalefurnia – a Roman woman in the Sachsenspiegel? Written, oral, and iconographic traditions. The reference to Calefurnia in Sachsenspiegel Landrecht II 63 § 1 has sparked several theories about how Eike came to know the story of the Roman woman Carfania mentioned in D. 3,1,1,5. Did he have access to the Digest? Did he undergo higher education in a monastery? Was he educated in Roman canon law? This article argues that he might have been inspired by a broadly used exemplum of Carfania as a litigious and talkative woman. By pointing out differences between the Digest and an ordo iudiciarius ‘Tractaturi de iudiciis’, it strongly opposes Landau’s thesis about the source of Eike’s knowledge by pointing out resemblances to Val. Max. VIII,3. A Schwabenspiegel manuscript of 1287 adds the interesting detail of Kæfurna showing her bare backside to the emperor. This storyline can also be traced through medieval and early modern literature. Puzzlingly enough, a Dutch Sachsenspiegel manuscript from the 15th century tells yet another version of the story referring to calefurnan ‘breaking wind’. The Sachsenspiegel picture books show Calefurnia with an unidentifiable object in varying shapes that has been interpreted as a depiction of misbehaviour considering the different additions to the story. Overall, the alterations of the anecdote offer a glimpse into the rich tradition surrounding the story of Calefurnia respectively Carfania.
III. Zunft und UnordnungKunstreich, Jasper
2022 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Germanistische Abteilung
doi: 10.1515/zrgg-2022-0003
AbstractGuilds between authority and opposition. This paper compares the legal status of guilds in two German towns of the late Middle Ages: Frankfurt am Main and Hamburg. Both cities represented commercial hubs, Frankfurt with its privilege to hold fairs, Hamburg as a port town and member of the Hanse. Both cities also witnessed unrest and public protest by guilds during the second half of the 14th century. This article argues that those conflicts erupted over the guilds’ attempts to formalise their legal status by having their statutes written and acknowledged by the city council. The council eventually pre-empted those attempts. This happened through a process of bargaining that can be subdivided into three different stages: production of written demands or statutes, destabilisation, escalation. Putting something into writing created a qualitative distinction to orality in a society that was predominantly communicating orally and in presence. Thus, the latter was still the mode of political communication, mainly by swearing an oath, that could settle these conflicts. Where this process failed, the conflict could erupt into open violence, which in turn could only be settled by outside intervention – as in the case of Frankfurt.
V. Dornröschens Erwachen im Recht der Willensmängel – ein misslungenes Scheingeschäft vor dem ReichsgerichtThiessen, Jan
2022 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Germanistische Abteilung
doi: 10.1515/zrgg-2022-0005
AbstractThe Awakening of Sleeping Beauty in an Absence of Intent – a Failed Simulated Transaction in the German Imperial Supreme Court. When the Friedrich Krupp Corporation promised to supply gas to the City of Bochum in 1910, the parties of this long-term contract could not anticipate the scarcity of raw materials during the upcoming First World War. In the aftermath of the war, Krupp was not able to provide for the quality that had initially been stipulated. Nevertheless, the parties prolongated the contract. When the City of Bochum insisted in proper fulfilment, Krupp argued that the prolongation of the contract according to the original conditions had been a simulated transaction the City of Bochum could not insist on. In 1941, the German Imperial Supreme Court denied the applicability of the provisions of the German Civil Code concerning an absence of intent, holding that each and every simulated transaction to be certified within an official document must be considered fraudulent. This article reviews the court’s decision in the light of its ideological background.