Sea Loan. A Dead-End Alley of Western
Legal Tradition?
When considering Roman legal framework a key factor in the discussion about the
process of decodification in Europe one cannot overlook some concepts which nowadays
are thought to be a mere history. Roman law does not always pass the test of
flexibility and economical effectiveness. For example a strong affirmation of personal
character of any obligation made Romans reluctant to accept assignment of rights
and pactum in favorem tertii which are broadly recognized in the modern civil law.
However, it seems not to be a case with pecunia traiecticia, i.e. the sea loan. This
special contract of loan had a twofold character: it served to take over the risk of
sea transport and to invest in maritime trade. The main idea was quite familiar: just
price for any loss incurred due to vis maior. Usus modernus applied it also to land
transport. Nevertheless, the sea loan suddenly disappeared at the end of 19th century
after a long tradition of being a part of the western legal thought. The author believes
that there is a place in the realm of obligations for an ancient, but still a vigorous
concept. Pecunia traiecticia was inspiration for two different and more famous contracts:
insurance and bottomry loan which dominated its history. However, as such
it was more like modern risk-sharing instruments which combine credit, insurance
and a bit of speculation. Examination of Roman legal framework and western legal
tradition has proved that some ancient concepts even ‘forgotten’ could revive and
should be included in the market of ideas while shaping a new order of private law.
 15-2013 Blicharz.pdf | 267 kB |
