Introduction

Despite the fact that teaching of the Roman law course gradually loses its meaning in universities, this subject is still taught. Therefore it is significant to find out whether this subject has left any influence on the law development in practice. This question has special meaning in Latvia not only because historically the Latvian Civil law has evolved under a strong Roman law influence, but also because this normative act was renewed entirely and hence very short time period was given to master and correctly apply this source.

The Civil law was created on the grounds of the Codification of Local laws (CCL). Necessity to reform this collection of laws was extensively discussed in the twentieths and thirtieths of the previous century. Scientific publications of that time pointed to the archaic character of this collection: Now already for many years Latvia is heroically applying legislation that was once made in Rome for Romans and that is now outlived by all nations, and supplemented and hooped continue living only in Latvia and Estonia".1

To support necessity for the reform, it was also pointed to interpretation and application difficulties of the CCL requiring from a lawyer good knowledge of both - the Roman and German law: the Ancient German Middle age law principles and Roman (pandect) law principles directly exclude each other ... can a small country allow such luxury to apply great effort to learn Roman law in its pandect treatment as well as in addition learn the Ancient German Middle age law.."2. Consequently, if the Civil law has still maintained influence of these two mutually contradicting rights - the Roman and Ancient German, this should alone be a sufficient reason to analyze impact of the Roman law studies on correct understanding of this law.

1. Historical and institutional method as two possible ways to teach the Roman civil law background in the University of Latvia

There will always be two teaching methods of the Roman law – historical and institutional. Temptation to deliver the course in the historical context is great as the Ancient Rome with its role in the history and magnificent events often puts in the shade a fact that this country created the Roman law. It is also easier to attract the students’ attention by putting striking historical events in the foreground.

When discussing the potential influence of the Roman law, one should understand by it, within the framework of this article, the similarities of norms, terms or methods that could testify about their borrowing. One can establish both external, formal i.e. terminological borrowings and more profound ones expressed as institutes and methods existing in the Latvian law and recognizable in the Roman law as well. However, it is more difficult to answer whether these borrowings are direct expression of teaching the Roman law course or else a borrowing occurred indirectly, e.g. as borrowings from the later law systems.

Intensity in which the Roman law exposed its influence upon the Latvian law environment has been very different at different periods. The normative acts that were drafted un applied under the strong Roman influence (1861 – 1938) were replaced by the Civil Law where the Roman law influence was expressed in construction and institutes (not that much terminologically); afterwards the Civil Law was replaced by the sources that were foreign to the Roman law conception in essence but where the Roman law influence was still inextricably maintained, yet only terminologically (1941 – 1992), but afterwards took place an equally radical return to the historical origins (1993 – 2007). Consequently we have come to several mutually unchained factors that enhanced or hampered the Roman law influence: „external" (semantic) expressions, borrowings of fragments from the normative acts or renewal of entire system of acts (reception), methodological i.e. legal technique borrowings.

2. External (semantic) expression of the Roman law influence

External (semantic) expressions shall be here understood as a usage of Latin legal terminology in legislation and scientific literature that alone are not indicating to the influence of the Roman law as a special law system. Usage of foreign words, particularly Latin legal terms, may create misleading impression that one system of law where the respective term is used could have influenced the other system where this term is also used due to their polysemy. Firstly, understanding of the term may be totally different in each case. Secondly, borrowings may also be lent, not directly borrowed. Due to this reason, it is not possible to draw precise conclusions from the very usage fact of a term about the source of a borrowing.

Thus, for example, a word cession may be encountered in absolutely all codes that were once effective in the territory of Latvia. Exactly due to this reason it would be too hastily to conclude that usage of this word signals about successive influence of the Roman law. Besides, this term taken individually in each source of law, commentary or monographic research may designate totally different concepts. Even in one and the same system, namely within the Roman law, this term may have different meanings.

The Civil law understands cession as a transfer of claim: Claims may be transferred form an earlier creditor to a new one based on cession that takes place:

1) by law, without expression of will of the earlier creditor;

2) according to the court judgment;

3) according to a lawful transaction, no matter whether the creditor has signed it based on a lawful obligation or by his own free will (Article 1793).

The term itself may testify about the Roman law influence, however, it may be borrowed from an earlier source as well.

Despite the fact that in many aspects the Civil law is almost a precise plaster mask type copy from the Roman law, this normative act, at least in its original wording, is not characteristic for terminological borrowings from the Roman original source. To put it otherwise, borrowings were made in their substance, not in their form.

3. Internal (pragmatic) expression of the Roman law influence

The well known assumption that the Roman law has strongly influenced the initial wording of the Civil law has never been disputed. The disputable matter is to what extent the norms borrowed from the Roman law were "mixed" with the German origin norms of law. In comparison with the previous legislation on the grounds of which this law was worked out3, the earlier system was principally preserved – e.g. it was decided to maintain the principle of the Roman inheritance that has not yet been acquired by the heir(hereditas iacens) despite the fact that in most European legislations this system was replaced by the German law immediate transfer of heritage4, by strict distinction between possession and ownership claim5, by a provision that in case of cession only the right of claim passes over to the new creditor instead of the contractual relation where from this right arises (Article 1800) in this way contrasting the cession of claim permitted by law with subrogation that is not allowed by the Latvian Civil law6. Here we face expressly archaic element that without any changes has survived many centuries. Once also V.Bukovsky has pointed to this peculiarity by which the CLL differs from the most of the 19th century civil law sources7. Possibly when the CLL norms were revised during the codification process in 1937, the authors did not find any reason to change this norm as it only had disposition character that was proved by the insertion in Article 1800 of the Civil law: " if not agreed otherwise". Respectively, parties have rights to agree about complete assignor’s substitution by the assignee.

After Latvia regained its de facto independence, it seemed that the Civil law suites the best to reform the legislation. The problem, however, was the fact that the construction principles of this law were not known for the science and practice of that time. An important role in the renewed CL and around it is played by borrowings from the previous (but not the Roman) law systems. Still also in these systems the Roman law influence exists, although in quite "diluted" proportion. Assumption that such borrowings testify about the Roman law influence, is disputable. Borrowings prove that the legislator was not quite convinced about correspondence of the "renewed" Civil law construction principles with the requirements of that time which simultaneously can be regarded as a sign of a poor knowledge of these principles. In comparison with the Civil law original (i.e. the one existing before renewal) structure, impact of the Roman law should have become weaker (respectively, if we disregard only the external expressions i.e. pollution of the legal slang with the Latin terms).

Leaving aside the question whether those borrowings were necessary – it is sooner that one could do without them – they provoke several by-effects that are difficult to call desirable in the legislative process. First, the fact alone that such amendments were made, even if one term is replaced by another, as such testifies about shortcomings of the previous text. Second, since such term was not used in the previous legislation system, it also becomes necessary to "implant" interpretation of this term in the legal science alongside with usage of this term in the law, and considering the previous absence of the term, one has to borrow the scientific interpretation of the respective term e.g. a source of increased risk. Third, this "patchwork" may cause – and as already demonstrated by several samples in development of legislation – inevitably causes - unexpected by-effects due to the reason that it transforms the tightly institutional system of the Civil law. Besides, in most cases these "improvements" are not testifying about defects in the earlier text but rather about its misunderstanding. It is not conceivable that the initial wording of the CL would not provide one or the other type of responsibility. It is not difficult see the "collateral damage" by which the seemingly well intended and superficially innocent amendments have accidentally contaminated the Civil law system. In the improved Civil law Article 2347 one comes across a term "possession" whose content in the Civil Code is totally different. In perspective this difference, although not expressed in the context of the particular norm where due to lucky chance the usage of this word corresponds with the meaning of possession used in the Civil law, will bring more harm than relative benefit that could be brought by a mechanic replacement of a prewar norm with a socialistic one. The irreparable result of this seeming improvement is the wrong idea that one may borrow such terminology from one system into another unpunished.

4. Second life of the Civil law or laws outside the Civil law

Second life as we know is a product of digital entertainment, virtual world where well-off Western European people "cool off" from reality. Comparison of the Civil law with this phenomenon may seem inappropriate; still the "second advent" of the Civil law has much in common with the "virtual reality". There were no laws adopted or renewed alongside with the Civil law that would create legal environment for this law to function adequately, e.g. due to this reason and in difference from the prewar law8 there is not a respective procedural form to protect possession. Or it may be the other way round. There were adopted such laws that paralyzed the Civil law. The Civil law was enforced, yet these paralyzing norms made its force only seeming. Article 14 of the law "On enforcement time and procedure of the Introduction part, Inheritance law and Property law of the renewed 1937 Civil law of the Republic of Latvia" of 1992 provided "exceptions" from unity of the land and building.

Respectively, a norm outside the Civil law turns into an inevitable Civil law satellite once being just an exception, and gravity of this satellite has turned out to be destroying with regard to the Civil law; besides bearing in mind the long-term character of the lawful relations pertaining to the real estate, it has perspective to last forever. A similar ephemeral existence of property was also tolerated in the Ancient Rome. Consequently, the Latvian law during renewal of the Civil law has if not borrowed it from the Roman law then at least could have inspired the Latvian legislator or was used as a source for additional argumentation to support such action. Unfortunately, they did not take into account the Roman law experience showing that in case there exist divided ownership rights, one of them will certainly dominate while the other slowly turn into semblance. Also in this case when it was not possible to ensure equal existence of separate ownership rights to the land and the building erected on it, which is not actually presumable, the land owner had to give in by accepting relations of the "compulsive lease" and had to return to the institute of the hereditary rent or use of rights which he or she could dispose of through sale or inheritance (emphyteusis, vectigal).

As we have learned from the law history, the hereditary rent has tendency to turn into unrestricted ownership rights in the course of time when the unwanted chain – the owner of the inherited rent object gets completely excluded either through buy-out or expropriation like it was in the Ancient Rome or by combining both methods like it was in the 20th century Great Britain.9

On the surface, development of the „separated property" and „compulsory rent" reminds of processes already established earlier, however it would be too hastily to point to intentional imitation features. It is sooner otherwise – the parallel is casual coincidence. Despite the fact that in reality the separated property like the "compulsory rent" exist, although outside the Civil law and in conflict with the basic principles of it (as the Civil law continues "envisaging" unification of a land and a building like the freedom of contracts) still neither in the theory, nor in the court practice it has ever been recognized that this reality could in certain way be in conflict with the Civil law basic principles.

The manner in which this problem was solved by the Latvian legislator also shows how little our legislator was able to borrow from the previous historic experience. This "solution" strongly differs from what may be observed in other post communist countries as almost in any, including the Russian Federation, "the land and building" problem was solved by applying the well known and sufficiently detailed institute of the hereditary rent (emphyteusis, vectigal) or construction right (superficius).

5. Fiction in the Latvian court practice

Fiction is characteristic for the Roman law. For example, Publiciana in rem actio is based on application of the ownership claim mechanism in a dispute where the claimant is the owner. With exception of this sole, although very significant difference, protection mechanism is applied by the greatest precision in the rest of cases. Due to this reason Publician’s claim is also called as a claim of the fictitious owner. Publician was used to reclaim property; however, in difference from the ordinary ownership claim, the parties were in exchanged positions. The claimant definitely is not having the ownership rights; in addition he knows it very well. The defendant in turn is having ownership rights; still justice is on the claimant’s side. For example, the purchased animal has run back to the seller. The latter still has ownership rights. The reason for such situation is the very complicated, historically evolved Roman classification of transactions where informal purchase in difference from the mancipation act (mantipatio) is not causing ownership rights to the purchaser even despite the fact that the property (animal) was transferred to him. However, this defect may be "healed" by the statute of prescription. And it was exactly this circumstance that was used by certain praetor Publician10, to eliminate injustice caused by the animal’s vagary. Namely – it was supposed, besides absolutely in contradiction with obvious facts (fiction), that the statute of prescription has set in and in this way the claimant, thanks to this fiction, shall be recognized to be the "owner" and be capable to reclaim the property from the seller by claim of the "owner" i.e. the claim of Publiciana or the fictitious owner. There are certain doubts whether Publiciana is or is not reflected in the CLL11. Indication to a better or worse possession under the Civil law Article 919 that repeats an ambiguous and disputable place in the Roman law sources12 could serve as an argument on behalf of assumption that the CLL recognized Publiciana’s claim as permissible. In the time period after the Civil law renewal this dispute was not continued. Publiciana is totally forgotten in the modern times. But is it really totally forgotten? There are certain features that could testify about peculiar return of Publiciana’s fiction in the practice of the Civil Case department of the Senate for the Supreme Court of the Republic of Latvia. As it follows from the above description, a pre-condition to use Publiciana’s fiction is also the fact that possession has something in common with property. Respectively, by applying this fiction, the Roman praetor Publiciana ignored the well known maxim of the Roman law nihil commune habet proprietas cum possessione (property and possession has nothing in common)13. It should be noted that this principle has been consistently preserved also in the Civil law. It is, for instance, expressed in the provision under Article 932 that "No ownership action shall be accepted from a person who has taken away possession by force, so long as the person dispossessed has not been restored thereto and not received compensation for all losses and expenditures". Respectively, the Civil law does not permit reviewing of possessorial and petitory i.e. possession and ownership claim within the same proceedings. Such "theoretically unjustified but practically quite useful" combination14 is not admitted by other civil law sources as well, except the Swiss ZGB, Article 927.

The Latvian court practice has started using this combination that is "practically quite useful" although impermissible in view of the Civil law. In one of the case the Senate even expresses opinion (SKC-435/2001) that the ownership claim may be substituted by a claim on renewal of possession that was taken away.15Besides, in the given circumstances the Senate’s conclusion about application of the norms pertaining to protection of possession instead of the ownership claim, is based on fictitious (i.e. inadequate for the given circumstances) assumption. The Civil law envisages that the possession shall be restored if it was taken away by force CL (921). By systematic interpretation this norm may also be applied to such possession that was obtained "in secret from persons from whom an objection could be expected" (909). However, there was not established any violent or secret obtaining of possession in the given case, but instead there were discussed transactions on the basis of which the ownership rights were transferred and recorded in the Land register. And there is also no reason to assume that a mistake was admitted, because the thesis stating that in certain circumstances an earlier possession shall be given preference against the ownership rights that are established later is repeated in several other judgments. For instance, in the civil case no SKC – 625/ 200516. In this way the court’s conclusion about possibility to apply norms referring to reclamation of possession taken away by force or in secret, could be grounded on a fictitious assumption similar to Publician’s in rem claim giving preference to the earlier possession, not recorded in the Land register over the ownership rights recorded in the Land register and acquired by a transaction. The grounds for such court’s assumption, similar to Publician’s action, are the reason that a principle prevails over the fact. Still there is huge difference because in the time when Publician’s claim appeared, the claim of a fictitious owner filled the gap in the legislation as there did not exist those mechanisms for invalidation of a transaction that are at the court’s disposal nowadays.

In the case no SKC-435/2001: "Considering the fact that [..] ..Mrs. G.L. is not an acquirer in good faith [my underlining –J.R.](Article 910), her rights may not be protected by reference to the Land register record." 17

There are many reasons why identifying of possession with ownership should be regarded as undesirable in many aspects. In addition to the above described argument that if such supposition is generalized, it may lead to totally unacceptable conclusions, there is also a purely pragmatic aspect, namely – if it is assumed that there is no difference between what the Civil law calls possession and ownership, then how coexistence of theses two institutes may be explained? And indeed, there are legislative systems e.g. the Common Law where possession is not envisaged as a general category and where it is solely understood as the ownership rights element and as a precondition to acquire ownership through prescription19. Still in the Latvian civil law system possession is a completely independent institute made after the Roman law "image, after its likeness". We can establish that the court has not taken into account this fact in the above described judgments and has not given any material reasoning that would substantiate such action either. Nothing also states that the construction of the "fictitious owner" would have been applied. The seeming likeness with this claim obviously is only external and should be regarded as casual. Also the supposition that a possessor would have the ownership claim may not be grounded on arguments arising form the Roman law. It cannot be established that the court would have referred to the Roman law sources or literature in those cases when the law was applied opposite to its sense.

6. Expressions of formalism in the Latvian court practice

In the Latvian court practice the formalistic approach dominates and the dynamic one is often absent. In this way we get formally correct, but in essence – a totally absurd result. A bright sample is a method how the courts interpret the norm under Section 2 of Article 86 of the Civil Procedure law: "(2) Complete or partial waiver of a claim, change of the subject-matter of a claim, filing of a counter claim, full or partial recognition of a claim, signing of settlement, transfer of a case to the arbitration, appeal of court rulings under appeal or cassation procedure, filing of executive documents for collection, receipt of adjudged property or cash, termination of executive proceedings shall be specially indicated in a power of attorney issued by the authoring person".

It is difficult to overlook that the given norm has something in common with the principle of the most earliest period of the Roman law (753-509 B.C) that did not allow procedural representation altogether (nemo alieno nomine lege agere potest), however, even when the Roman law admitted representation, it always looked upon it with great caution, not to say – with great suspicion. The Senate’s formalistic approach to interpretation of this norm is very obvious in the judgment adopted in the case no SKC200121 where we exactly encounter a situation when the court, having established that the authorization does not expressly specify the rights to appeal the judgment, terminates the proceedings exactly on these formal grounds despite the fact that if the legal relations were interpreted according to their essence, the court would come to a conclusion that the idea of the authorizing person was to authorize his representative to appeal the judgment. The Senate adopted very formal decision to terminate proceedings disregarding the fact that the representative presented even two authorizations before the court – one that was issued before filing objection, the other – after the objection was already filed. Certainly, if taken formally, the court is absolutely right – objection filed without respective authorization shall be regarded as not filed. However, in point of fact – it is a total absurd – in addition to the fact that a repeated authorization was issued, there was also obvious interest in the result of the proceedings that gives no reason to doubt whether it was the will of the authorizing person that the judgment was appealed. It should be mentioned that this case is very typical for the Latvian court practice, although there are very few such cases when the authorization lacks specific indication to the rights of appeal.

Summary

The Latvian Civil Law evolved under the influence of the Roman law on the grounds of the Codification of Local Laws (CLL). The literature points to interpretation and application difficulties of CLL requiring from a lawyer good knowledge of both – Roman and German law. Largely one can establish full textual correspondence between CLL and CL, especially in Property law and Obligations law chapters. Thus to a great extent everything that was described with regard to necessity for Latvian lawyers to have good knowledge of the Roman law is still topical.

One can suppose that the Roman law studies are organized with the aim to leave certain impact upon reasoning of the future lawyers, and in this way the Roman law method would eventually be expressed in improvement of legislation and in the court practice. One can establish both external, formal i.e. terminological borrowings and more profound ones expressed as institutes and methods existing in the Latvian law and recognizable in the Roman law as well. However, it is more difficult to answer whether these borrowings are direct expression of teaching the Roman law course or else a borrowing occurred indirectly, e.g. as borrowings from the later law systems.

Tendency to use Latin legal terms is more characteristic for the time period before enforcement of the CL. The CL is not that rich in the Latin terms as in the Soviet Civil code.

In comparison with the CLL, the CL principally maintained the earlier system, e.g. - the principle of the Roman inheritance that has not yet been acquired by the heir (hereditas iacens) was preserved alongside with the strict distinction between possession and ownership claim, the Roman law principle that in case of cession only the right of claim passes over to the new creditor instead of the contractual relation where from this right arose (CL Article 1800) in this way contrasting cession of claim allowed by law with subrogation that is not admitted by the Latvian CL. Important role in the renewed CL and around it is played by borrowings from the previous (but not the Roman) law systems. In comparison with the CL original (i.e. the one existing before renewal) structure, impact of the Roman law gets weaker.

Relations and legal thinking during reinstatement of the CL were totally different from that legal reality that existed in Latvia in 1937. Therefore reinstatement took place in a way that many important legal norms having principal meaning did not work.

Fictions are characteristic for the Roman law, e.g. Publiciana in rem actio or a claim by a fictitious owner. The court’s conclusions in the ownership disputes could be based on fictitious suppositions similar to Publiciana in rem claim, thus giving preference to earlier possession not recorded in a land register over the ownership rights recorded in the land register on the grounds of a transaction. These rulings, like in Publiciana actio case, are grounded on reasoning that a principle deserves more attention than facts. Still there are also dissimilarities. It is more credible that similarity with Publician here is only casual. One can find terminological coincidence in the court judgments with concepts that cannot be found in the current CL, but which existed in the former Civil Code of the LSSR. The Senate’s practice is not characteristic for using Latin legal terms. Terminology is often misapplied.

Periphrasis about representation in court in the most ancient (pre-classic time) Roman law development period is a way in which the Latvian courts interpret the norm under Section II of Article 86 of the Civil Procedure law. Usually, the court having established that it is not directly specified in the authorization that a representative is authorized to appeal judgment, terminates proceedings exactly on the grounds of this formal basis despite the fact that by interpreting legal relations in substance, there is reason to conclude that it was intention of the authorizing person to give such authorization. Such method when a problem is solved by a formalistic trick in order to avoid solving it in substance is also quite characteristic for the Latvian court system.

Footnotes

1. Sinaiskis, V. Civillikumu revizija vai Latvijas civilkodekss. Jurists Nr. 3 (37) 1932. g. Marts, 66.lpp.).

2. Civilists. Revizija vai reforma? (Piezīmes pie Latvijas Civiltiesību kodeksa projekta). Jurists Nr. 1, 1928. g. 22. Martā, 4.lpp.

3. Pavars A. Jaunie Eiropas 1937.g. Civīlkodeki. Jurists, 1937., nr.1/2 (79/80), 29 -30.lpp.

4. Blese H. Dažas piezīmes Civīllikuma projekta trešais grāmatai. Jurists, 1936., nr.5/6 (75/76), 107 -110.lpp.

5 . Vīnzarājs N.Lietu tiesība, Valdījuma sastāvs, Ieilguma nozīme civiltiesību sistēmā Civiltiesību problēmas. Raksti (1932. – 1939.) 2000., 43. – 94.lpp. Cvingmans O. “Valdīšana šo laiku tiesībās”. Tieslietu ministrijas vēstnesis, 1926., Nr. 7, 160. – 187, Nr.8, 257 – 274. lpp..Cakuls S. Par valdījumu un tā iegūšanu 19.11.2002 23 (256); 03.12.2002 24 (257)

6. Torgāns K. Komentāri saistību tiesībām Civillikumā. R., 1994, 101.lpp.

7. Буковскiй В. Сводъ гражданскихъ узаконенiй губернiй Прибалтiйскихъ. С продолженiем 1912-1914 г.г. и съ разъясненiями въ 2 томахъ. Том II. Р., 1914, с. 1430

8. Civilprocesa likums. Kodifikācijas nodaļas 1938. gada izdevums,303.-305.lpp.

9. Dijk van P., Hoof van G.J.H. Theory and Practice of The European Convention on Human Rights. Second Edition. Kluwer Paw and Taxation Publishers. Deventer – Boston, 1990, p. 459.

10. Покровский И. А. Исторiя римскаго права. Изданiе 4-ое. Петроград: Изданiе Юридическаго книжнаго склада « Право», 1918, с. 273

11. Konradi F., Walter A.. Civīllikumi ar pasklaidrojumiem. Otrā grāmata. Lietu tiesības. 1935., 180.lpp.

12. D. 6.1.72; D. 6. 2. 1-17.

13. D. 41, 2, 12, 1.

14. Cvingmans.O. Valdīšana šolaiku tiesībās. Tieslietu Ministrijas Vēstnesis, 1926, nr. 7./8.. 265.lpp.

15. Latvijas Republikas Augstākās Tiesas Senāta Civillietu departamenta spriedumi un lēmumi 2001. Latvijas Tiesnešu mācību centrs. R. 2002, 167 – 168.lpp.

16. Latvijas Republikas Augstākās Tiesas Senāta Civillietu departamenta spriedumi un lēmumi 2005.TNA. R. 2006, 138..lpp.

17. Latvijas Republikas Augstākās Tiesas Senāta Civillietu departamenta spriedumi un lēmumi 2001. Latvijas Tiesnešu mācību centrs. R. 2002, 169.lpp.

18. Bernhardt R.Real Property in a nutshell, west Publishing Company. ,1991 , p.3

19. Jourdan, S. Adverse Possession, 2003, p.3- 4zzz