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Studi sul falsus procurator nelle fonti giuridiche romane.

Ondei, Marina (2010) Studi sul falsus procurator nelle fonti giuridiche romane. PhD Thesis , Università degli Studi di Ferrara.

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    The purpose with which we have conducted these studies was to delineate the principal characteristics of the figure of the so called falsus procurator, as he emerges from Roman legal sources. In particular, we started from the consideration that, in regard to this legal issue, the doctrine appears to have assumed, so to speak, radical positions: in the past, judging mainly altered the sources that mention the falsus procurator, more recently, in wanting to defend, for the most part, their authenticity, but given the fragments, in which this expression appears, to relate only to a simulator. Based on this assumption, therefore, we proposed to refer to all legal sources exegesis on this subject, drawing the attention of the reader, not only textes in the context of which specifically the falsus procurator is mentioned, but also the fragments which describes the action of the so-called non verus procurator, in opposition to the procurator verus. Having recognized the multifaceted nature of this legal figure, it seemed plausible, as well as appropriate, to avoid taking sides on extreme positions and abandon, in this way, a clear division between falsus procurator-simulator and falsus procurator-not representative, to ask ourselves - however gingerly – if it seems possible to recognize to the expression in question a polysemic value already for classical age. In this perspective, has played a decisive role, the consideration of VINCENZO ARANGIO-RUIZ, who, after repeating the idea for which would be contained by a "riluttanza" of the classical case to call procurator, the person who negotiis alienis gerendis se optulit, declares that the use of expressions like verus and falsus procurator, at the age of Justinian, only represents «la definitiva celebrazione di una tendenza terminologica già in atto». Therefore, the survey aims to find the roots of this trend. After some introductory chapters, with the function to frame this theme, as well as to highlight the main positions of the doctrine as to the figure of the procurator falsus specifically, we focused attention on the steps of the sources where, more or less explicitly the case of a person qui simulat se procuratorem esse is discussed. It was, therefore, necessary to dwell on the idea of simulation, to observe, within sources related to falsus procurator, as it materializes and takes place, given that the intervention of a negotiorum gestor, although it is not based on a specific task, does not seem to configure a case of simulation of legal powers not legitimately owned. In this perspective, we tried to isolate and examine first, all the passages where it seems that the attitude of the so falsus procurator is characterized by an intentional gradient, thus appears likely to mislead those who come in connection with this type of attorney. From those assumptions, however, we have taken note of the fact that the question inevitably becomes more complicated when we proceed with an exegesis on passages from the wording of which is not possible to derive an explicit reference to subjective state of procurator. What, indeed, it could be deduced from analysis of the content of some fragments is precisely the fact that the same would not be felt necessary to conduct an investigation to uncover the intentions of the latter, understood as the precondition for certain important consequences in terms of law, which, however, are the legal issues applicants whenever you find in the sources a falsus procurator. On the other hand, just based on the use of these issues, related primarily to the issue of non-transfer of ownership of what is handed to the subject and, therefore, that the liability for furtum, it can be argued that the falsus procurator is the one that simulates a qualification, not actually possessed, with the ultimate aim to mislead the other party. Therefore, in all these cases, the act of this person, who simulate the status of a procurator, should be read as intended to steal the good faith of the debtor and distract the res soluta for its own benefit: as a rule, the subject who simulated was named procurator falsus; while it seems that having to exclude the involvement of a simple negotiorum gestor can be described in terms of simulation. Starting from chapter VI of this work, the question is on the value of the same expression, traced in the context of sources that are deemed attributable to a simple operator without mandate. It is almost certain that the attribute falsus would be used to specify the term procurator, at least originally, by virtue of its ethical nuances level of meaning to be read as opposed to what is real, true, authentic. However, we have inferred the existence of passages in which, while appearing falsus reference to a procurator, it seems rather difficult to identify cases of simulation, like an act that is intentional and in bad faith on its part. They are mainly Ulpian’s passages. Firstly D. 47, 2, 43 pr. (Ulp. 41 ad Sab .), a text which seems to attribute a central role to the alternative between acting in good or bad faith by the procurator. And so D. 46, 3, 12, 4 (Ulp. 30 ad Sab .), which speaks about a non verus procurator, a concept whose meaning is gathered when fully assessed in relation to that, opposite, of verus procurator, which occurs in D. 46, 3, 12, pr. (Ulp. 30 ad Sab .) and in D. 46, 3, 12, 4 (Ulp. 30 ad Sab .). The non verus procurator of D. 46, 3, 12, 4 seems, in fact, a figure closer to the procurator D. 3, 5, 23 (24) (Paul. 24 ad ed .) - procurator who, acting beyond the limits of its mandate, appears to be a simple negotiorum gestor - that the accipiens of D. 46, 3, 38, 1 (Afric. 7 quaest.), who nummos acceperit, ut eos lucretur. While the passage contained in C.I. 4, 5, 8 – if we consider it genuine - can help us to light on the conception of the falsus procurator, at the end of the classical age: even the procurator who appears in it seems, in fact, a figure closer to a non-legal representative, but not a simulator. In that time, with this expression, the Romans would indicated only the agent without mandate. That said, we asked why justinian jurists would have considered convenient to use precisely this terminology if, with the same, the classical jurists had always intended to refer indiscriminately to the man who had simulated the legal powers of a procurator. Why, then, if it was rooted in the centuries an habit in the use of the expression, the Justinian would have used the same terminology to express a concept profoundly different? From those questions, we have come to assume that already the classical jurisprudence, more concerned with factual reality that dogmatic development, had begun to call procurator falsus or non verus simply the, so called, negotiorum gestor.

    Item Type:Thesis (PhD Thesis)
    Date:26 March 2010
    Tutor:Manfredini, Arrigo
    Coordinator:Manfredini, Arrigo
    Institution:Università degli Studi di Ferrara
    Divisions:Dipartimento > Scienze giuridiche
    Subjects:Area 12 - Scienze giuridiche > IUS/18 Diritto romano e diritti dell'antichita'
    Uncontrolled Keywords:falsus procurator, versus procurator, non versus procurator, procurator, mandato, simulatore, condictio furtiva
    Deposited on:23 Jul 2010 14:39


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