Idee vecchie e nuove sull'antinomia. Iul. 13 dig., D. 41.1.36 – Ulp. 7 disp., D. 12.1.18 pr.

Abstract

Most of the exegeses conducted on the antinomy Iul. 13 dig., D. 41.1.36 - Ulp. 7 disp., D. 12.1.18 pr. are obviously led by the aim to confirm the respective theory of iusta causa traditionis held by the author. For instance, the prevailing opinion imputes to Iulian the justification of the transfer of ownership by a loan agreement, applying the principle in maiore minus inest. In different ways, but with the same intention, Cannata, Flume, Schanbacher, and Harke, amongst others, recently attempted to declare Iulian to be an exponent of a causal traditio. These theories seem to have in common the negligence of the fragment's wording: Iulian emphasizes the existence of a dissensus in causa twice, whilst mentioning exclusively the consensus in corpore as reason for the transfer of ownership. Thus, the pattern of a homogeneous opinion in classical Roman law, in terms of the causal principle like it is preferred today, cannot be convincingly founded in the antinomy.