Question was the parliaments. The substantive law that
Question 1 (Words: 212)
highest court of France, during 1730s, was the Parlement de Paris, for some
cases the Grand Conseil1.
Therefore, the litigants need to bring the case to the parliament as the
uppermost appeal. The origin of this court comes from fifteenth century. During
Late Middle Ages, a lower court would often seek opinion from a higher court
which made the higher court more developed and more supported. Furthermore, by
the time, a more sufficient central power was a demand for the royal jurisdictions.2
With the adaption of the Roman law, the unification and the harmonization of
the other courts, and the influence of the higher courts, somehow, created an
atmosphere of centralization. That central of France was the parliaments. The substantive
law that was applied were Roman law concepts, after the reception of it in
Europe, customary law techniques, collections of case law, and legal treaties3.
Moreover, the ideology of ius proprium
was welcomed by the Roman law. It is the Latin term for certain jurisdiction,
meaning “case law”4. The ius proprium refers to the formal adoption of
it to the culture and forms of the learned law5.
Question 2 (Words: 195)
Since the central courts gained more
power from day to day, their independence came naturally, from the prince. The
only existence of judiciary was not only through central courts, but also
ecclesiastical and local courts6.
courts claimed a wide jurisdiction over every member of the Church, which meant
that practically everyone was subject to these courts. It provided protection
for the clergy from secular courts. On the other side, local courts were
divided into two courts, generally: feudal courts and aldermends’ courts. As the governments wish to unify the state,
therefore the judiciary, a new, perhaps combined procedure type was necessary.
As a result, Romano-canonical procedure was adopted by the parliaments7.
This procedure is mixture of both Roman law and canon law, the law of Church. In
twelfth century, impact of Roman law on the canon law on defined elements were
adopted by the ecclesiastical courts. There was not much of a difference
between the previous procedures and Romano-canonical procedure; however, the
fact that almost everything had to be in writing due to different reasons would
be one of the most outstanding modification8.
Question 3 (Words: 252)
the case between Macron and Claudel, Claudel utilizes three arguments from
various legal origins to defense himself. First is he had not entered into a
contact with Macon because the contract between them is contractus re which
requires the thing that was promised must be handed over and exists when re is
handed over, physically. In this case, the Macron did not receive the sum of
the money, so there is no contract. The latter argument of him was that there
was on valid contract between them two because of the laesio enormis discipline which states that if parties agree terms
that deviate too far from reasonable price, then it should be possible to rule
that such agreement is not legally enforceable9.
In this perspective, Claudel would be arguing that the interest would put a lot
of excessive burden on him and the sum of the total price would be way more
than the actual price. Therefore, the contract would not exist in the first
place. The third and the last argument of Claudel was on clausula rebus sic stantibus principle. In particular, this
principle advises that if there are changes in the circumstances of the parties,
the contract cannot be enforced anymore10.
The terminology for this theme is clausula rebus sic stantibus for public law;
however, for private law, it is called ‘implications’. From these ways of
logic, Claudel argues that the contract would not be binding.
Question 4 (Words:199)
judgement for the Macron v Claudel does not recognize the arguments made by
Claudel. There are different causes for this. Initially, the principle of
consensualism interfering with the principle of freedom of contract would
overrule the reasoning of the first argument of Claudel. With regards to form a
contract, consensualism, consesus, having an agreement is, perhaps, the most
significant part and creates validity. A contract is considered binding and enforceable if
it does not contradict law or if enforcing it does not conflict with morality11.
Furthermore, since sixteenth century, consensualism gains more importance12. Court’s response
to second argument would be on the doctrine of justum pretium. The principle of laesio enormis lost its power over judiciary13.
The reaction to the lacst argument would, logically, be the pacta sunt servanda. This term literally
means ‘(all) agreements must be honored’14.
Its roots lean back to thirteenth century, but was still respected in 1700s.
According to the principle, as would be understood from the meaning, all
agreements must be honored, performed, no matter was the situation brings.