the svea court of appeal in the early modern period 236 final decision did not follow the opinion of the presenting judge. The vota are argued quite openly, often using the first person singular.637 They were not given to the parties, but rather served as internal material for the court in both the case in question and probably as a databank for future decisions. The Codices rationumoffers convincing evidence of the importance of Swedish national statute law in regard to the decision-making of the Svea Court of Appeal. A case of contract law from 1655 may serve as a good example, since this was one of branches of law most dominated by Roman law in the Europe of ius commune. In our case, the judges referred to medieval Swedish legislation almost exclusively. However, one of the judges (Schiller) did recommend moderation of the contract for reasons of equity.638 In the case of Countess Christina Brahe (1609 – 1681) vs. Secretary Nicolaus Schunk, the lawyer for the countess referred to the Roman law concept of just price.639 Neither Justinian’s Digest nor other parts of the Corpus iuris civilis are mentioned, except rarely but are at least mentioned in some testamentary cases passages of the Digest.640 Instances of ius commune learning sometimes also appear when questions of proof are discussed. In an accusatorial criminal case regarding injury, terminology pertaining to the legal theory of proof abounded and, as was to be expected in this context, Gaill’s Observationes was mentioned as authoritative argument.641 These examples of ius commune learning in the Svea sources, however, by no means represent the majority, and it would be a great exaggeration to speak of “reception” of Roman law rules in anyius commune sense of the word. It is a telling fact that the cases where Roman law or ius commune is at its most visible are those coming to the Svea Court of Appeal from 637 “Jagh faller migh någhot betänckeligit […].”; “Jagh håller före, att wij låte […].”; “Jag kom in antecessuminthet mycket frija,”RA; SHA, A II a 16, Codex rationum 1655. 638 Schiller said: “Här äro […] obligationes, som flyta af ett frijwilligt Contract, och således är samt at bijfalla Borgmästares och Råds dom; doch skulle iagh gerna seh en moderation uthi interesset; […] Contractus modereras ex aequo et bono, och der medh effter Strictum jus icke fortfahra, […] Cap: 15 Rådst: B: […]sitt straff uthi det 10 Cap: L-B: Stl: S,”RA; SHA, A II a 16, Codex rationum 1655. 639 “[…] ultra dimidium justi praeti laderat […],”RA, SHA, E VI a 2 aa:128, Liber causarum 1650. 640 SeeRA, SHA, A II a:29, Codex rationum 1677, f. 114, “ff. ele fidei comissei;” and f. 115, “ff. q. testa facere.” 641 RA, SHA, A II a:33, Codex rationum 1685.
RkJQdWJsaXNoZXIy MjYyNDk=