# An Introduction to Roman-Dutch Law

An
Introduction
to
Roman-Dutch Law
by
R. W. Lee, B.C.L., M.A.
Dean of the Law Faculty, M$^c$Gill University, Montreal Advocate of the Supreme Court of South Africa Of Gray's Inn, Barrister-at-Law and lately Professor of Roman-Dutch law in the University of London
Oxford
At the Clarendon Press
1915
Oxford University Press
London Edinburgh Glasgow New York
Toronto Melbourne Bombay
Humphrey Milford M.A.
Publisher to the University
Printed in England at the Oxford University Press
To
The Hon. J. G. Kotzé
One of His Majesty's Judges
of the
Supreme Court of South Africa
Late Chief Justice of the Transvaal
Preface
This book, as its title indicates, is an Introduction to Roman-Dutch Law. It has grown out of a course of lectures delivered in the University of London at intervals in the years 1906–14. During this time I was frequently asked by students to recommend a text-book which would help them in their reading and perhaps enable them to satisfy the requirements of the University or of the Council of Legal Education. The book was not to be found. The classical Introduction to the Jurisprudence of the Province of Holland of Grotius, published in the year 1631, inevitably leaves the reader in a state of bewilderment as to the nature and content of the Roman-Dutch Law administered at the present day by the Courts of South Africa, Ceylon, and British Guiana. The same must be said of the treatise of Simon van Leeuwen entitled The Roman-Dutch Law, published in 1664, and of the elementary Handbook of Joannes van der Linden, published in 1806.
Of more modern works the excellent volume of Mr. G. T. Morice entitled English and Roman-Dutch Law scarcely meets the needs of the mere beginner, while the Institutes of Cape Law of Chief Justice Sir A. F. S. Maasdorp, the weighty work of Dr. Manfred Nathan on The Common Law of South Africa, and the Laws of Ceylon of Mr. Justice Pereira, besides being not especially fitted for the use of students, deal only with the laws of the several ​jurisdictions to which they relate. What was needed was a book of modest compass, published at a reasonable price, which would put a student, whether from South Africa, Ceylon, or British Guiana, in the way of acquiring a knowledge of the general principles of the Roman-Dutch Law as it exists at the present day in Africa, Asia, or America. Such a work would supply an historical background; would refer the reader to the original sources and teach him to distinguish in them what is obsolete from what is of living interest. These, therefore, are the objects which I have set before me. I have aimed at producing not a treatise on the Law of South Africa, or of Ceylon, or of British Guiana in particular, but rather an exposition of the principles of the Roman-Dutch Common Law, which forms the historical basis of all those systems, and which, however much abrogated, limited, or transformed by legislation, by judicial decision, or by custom, is still in greater or less measure the substance of which they consist. It is for the student, principally, that the book is intended and for any other person who may care to have before him a general picture of the Roman-Dutch Law at the present day. The practitioner, should he happen to glance at my pages, may find that I have here or there supplied a reference or suggested a point of view.
Though the book is not bulky, I may perhaps be permitted to say that its composition has involved considerable labour. Research in Latin and Dutch folios and quartos of bygone centuries takes time and the results are not always immediately apparent.
​Amongst well-known text-writers my references are principally to Voet, Van Leeuwen, Van der Keessel and Van der Linden. The citations of Van der Keessel's Dictata are from manuscript copies in my possession, which I have reason to believe conform substantially to the Leyden exemplar. For the rest, my studies have been partly conditioned by the contents of my own library. It will probably be thought that my citations are on the whole sufficiently numerous. Circumstances have prevented me from referring as often as I should have wished to many valuable articles in the South African Law Journal. I must be content with a general mention of that excellent review.
In the spelling of Dutch words I have as a rule followed the vagaries of my original. In citing Grotius I have usually quoted the first or second edition of the Inleiding. This accounts for such strange forms as ‘muirbezwaring’, ‘inbalcking’, &c.
For the law of South Africa and Ceylon I have made use of the works mentioned above as well as of Messrs. Bisset & Smith's Digest of South African Case Law. For the law of British Guiana I have received valuable help from Mr. W. J. Gilchrist, Barrister-at-Law of Gray's Inn, who holds an important position in the Civil Service of the Colony. The notes from his hand have in many cases been indicated by the letter ‘G’ between square brackets; but my indebtedness goes beyond what is thus formally acknowledged. My thanks are due also to my former pupil Mr. E. Draper, of the Inner Temple, for many useful references to South African cases.
I have to express my gratitude to the Delegates of ​the Clarendon Press for acting upon the maxim ‘Business as usual’, and persevering with the publication of this work notwithstanding the outbreak of the European War.
With regard to the proposed abolition of the Roman-Dutch Common Law in British Guiana, my latest information is that a Committee has been appointed by the Governor to advise as to the necessary legislation.
My recent removal to Montreal, where I have not access to South African Law Reports and other necessary books of reference, has hampered me a little in seeing the work through the press. I trust, however, that any errors which may arise from this cause will be neither numerous nor important.
My friends Dr. W. R. Bisschop, Barrister-at-Law of Lincoln's Inn and the Middle Temple, and Mr. J. C. V. Behan, Barrister-at-Law of the Middle Temple and Fellow of University College, Oxford, have given me kind assistance in correcting the proofs.
I am permitted to dedicate my book to the honoured name of Mr. Justice Kotzé.
Montreal, June 18, 1915.
Contents
| | Page |
| Authorities cited or referred to with Mode of Citation | xiii |
| Table of Law Reports with Mode of Citation | xviii |
| Table of Cases | xx |
| Table of Statutes | xxix |
| General Introduction | 1 |
| Appendix: How far the Statute Law of Holland obtains in the Colonies | 24 |
Book I. The Law of Persons
| Chapter I. Birth, Sex, Legitimacy | 28 |
| Section 1. Birth | 28 |
| Section 2. Sex | 28 |
| Section 3. Legitimacy | 28 |
| Chapter II. Parentage | 31 |
| A. The reciprocal duty of support | 31 |
| B. The parental power and its consequences | 32 |
| Chapter III. Minority | 37 |
| Chapter IV. Guardianship | 44 |
| Section 1. The Kinds of Guardians and the Appointment of Guardians | 44 |
| Section 2. Who may be Guardians | 50 |
| Section 3. The Powers, Rights, and Duties of Guardians | 52 |
| Section 4. Actions arising out of Guardianship | 60 |
| Section 5. How Guardianship ends | 63 |
| Chapter V. Marriage | 64 |
| Section 1. The Contract to Marry | 64 |
| Section 2. The Legal Requisites of Marriage | 66 |
| Section 3. The Legal Consequences of Marriage | 77 |
| Section 4. Ante-nuptial Contracts | 83 |
| Section 5. Dissolution of Marriage | 98 |
| Section 6. Miscellaneous Matters relating to Marriage | 100 ​ |
| Chapter VI. Unsoundness of Mind. Prodigality | 103 |
| Chapter VII. Juristic Persons | 105 |
| Appendix A. Form of Grant of Venia Aetatis in Ceylon | 107 |
| Appendix B. Form of Ante-nuptial Contract in use in South Africa | 108 |
Book II. The Law of Property
| Chapter I. The Meaning of Ownership | 111 |
| Chapter II. Classification of Things | 112 |
| Chapter III. How Ownership is acquired | 119 |
| Chapter IV. Ownership | 135 |
| Section 1. The Incidents of Ownership in General | 135 |
| Section 2. The Kinds of Ownership of Land | 139 |
| Chapter V. Possession | 144 |
| Chapter VI. Servitudes | 148 |
| Chapter VII. Mortgage or Hypothec | 162 |
| Appendix A. Rights of the Public and of the Crown in the Seashore | 182 |
| Appendix B. The System of Conveyancing in British Guiana | 184 |
Book III. The Law of Obligations
| Part I. Obligations arising from Contract | 188 |
| Chapter I. Formation of Contract | 189 |
| Section 1. The Parties must be agreed | 190 |
| Section 2. The requisite Forms or Modes of Agreement, if any, must be observed | 195 |
| Section 3. The Agreement must not have been procured by Fraud or Fear | 200 |
| Section 4. The Agreement must not be directed to an Illegal Object | 205 |
| Section 5. The Parties must be competent to contract | 210 ​ |
| Chapter II. Operation of Contract | 210 |
| Section 1. The Persons affected by a Contract | 210 |
| Section 2. The Duty of Performance | 217 |
| Section 3. The Consequences of Non-performance | 227 |
| Chapter III. Interpretation of Contract | 233 |
| Chapter IV. Determination of Contract | 234 |
| Chapter V. Plurality of Creditors and Debtors | 244 |
| Chapter VI. Special Contracts | 247 |
| Part II. Obligations arising from Delict | 267 |
| Part III. Obligations arising from Sources other than Contract and Delict | 282 |
| Appendix: Liability for Injury by Animals | 283 |
Book IV. The Law of Succession
| Chapter I. Succession in General | 285 |
| Chapter II. Testamentary Succession | 290 |
| Chapter III. Intestate Succession | 326 |
| Appendix: Precedents of Mutual Wills from South Africa | 345 |
This work is in the public domain in the United States because it was published before January 1, 1929.
The longest-living author of this work died in 1958, so this work is in the public domain in countries and areas where the copyright term is the author's life plus 65 years or less. This work may be in the public domain in countries and areas with longer native copyright terms that apply the rule of the shorter term to foreign works.
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