| Note: | TITLE: The »plague privileges« in the legal doctrine of the ius commune and in the European civil codifications / SUMMARY: Despite the fact that many Roman jurists were faced with the outbreak of the devastating Antonine plague (169−194 AD) and that the major parts of the Justinian’s codification were redacted during the first outbreak of the plague in Constantinople (531), there is no direct mention of the possible effects of the epidemics on the civil law and procedure. It is therefore dubious why medieval legal scholars, although confronted by the persistent threat of the Black Death, hesitated to write on it. It was not until the 1520s that Italian jurists, Ripa and Previdelli, composed tractatus on the so-called plague privileges (privilegia pestis). The authors creatively discussed to what extent the legal practice could approach the urgent easing of the rather rigorous principles of the ius commune. Both Ripa and Previdelli focused themselves on the privileges affecting the contract law, wills, and the law of civil procedure. There are two conflicting conceptual views the jurists had to balance: firstly, the plague as perceived by Bartolus was a war of God against the wicked people. Therefore, jurists tended to grant many military privileges, to the people vexed by the plague. These relaxations of law however, had to be applied in a restrictive manner. The plague, as a just punishment for the sins could not bolster an imprudent grant of the privileges. The tractatus of Ripa and Previdelli remained an authoritative statement of communis opinio doctorum up to the codification era. Furthermore, they have influenced rather scarce provisions of modern European civil codifications. The paper focuses on the provisions of the Austrian General Civil Code (1811) concerning the legal regime during the epidemic outbreaks. The paper shows that the legal science of the early modern era, vexed by a constant threat of the epidemic outbreak, did not stay silent on the relaxations of legal rules in a highly discordant circumstance of the health emergency periods. / KEYWORDS: epidemic, plague, reception of Roman law, privileges, European civil codifications, civil law, Austrian General Civil Code |
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