Advanced

English Saint or Roman Taint? A thesis on the potential connection between the English ship mortgage and the Roman mortgage law

Hellström, Christopher LU (2012) JURM02 20121
Department of Law
Abstract
The influence of Roman law upon subsequent legal systems has been immense. This influence is particularly apparent within the field of maritime law, where most principles – from jettison and general average to the bottomry bond – can be traced back to the maritime law of the Romans. This thesis has inquired whether the English ship mortgage developed from, or was influenced by, the Roman law, or if it constituted a separate legal development.

At first glance, it would appear as if the ship mortgage, like so much else in maritime law, is of Roman origin, for it shares many similarities with the real securities in Roman law. The ship mortgage prior to the Merchant Shipping Act 1854 featured a transfer of ownership from the mortgagor to... (More)
The influence of Roman law upon subsequent legal systems has been immense. This influence is particularly apparent within the field of maritime law, where most principles – from jettison and general average to the bottomry bond – can be traced back to the maritime law of the Romans. This thesis has inquired whether the English ship mortgage developed from, or was influenced by, the Roman law, or if it constituted a separate legal development.

At first glance, it would appear as if the ship mortgage, like so much else in maritime law, is of Roman origin, for it shares many similarities with the real securities in Roman law. The ship mortgage prior to the Merchant Shipping Act 1854 featured a transfer of ownership from the mortgagor to the mortgagee similar to that under the Roman mortgage called fiducia; similarly, the modern (post-1854) ship mortgage, much like the Roman hypotheca, was a mere charge on property, where the mortgagor remained the owner of the mortgaged property. These similarities, however, are just similarities. The lex maritima (i.e., the mediaeval maritime customs largely derived from Roman law) from which England received most of its maritime law did not include a ship mortgage; it had the bottomry and respondentia bonds.

The ship mortgage in English law developed from the common law concept of mortgages that had its origin with the primitive Anglo-Saxon mortgage known as the gage. The gage was a purely Germanic institution, brought to England by the Anglo-Saxon tribes prior to the Norman invasion in 1066. It was from this source that the idea of mortgages was implanted in England, and it was from these humble origins that the English ship mortgage ultimately developed. (Less)
Please use this url to cite or link to this publication:
author
Hellström, Christopher LU
supervisor
organization
course
JURM02 20121
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Anglo-Saxon, ship mortgage, Roman law, English law, Maritime law
language
English
id
2595113
date added to LUP
2012-10-15 11:52:19
date last changed
2012-10-15 11:52:19
@misc{2595113,
  abstract     = {The influence of Roman law upon subsequent legal systems has been immense. This influence is particularly apparent within the field of maritime law, where most principles – from jettison and general average to the bottomry bond – can be traced back to the maritime law of the Romans. This thesis has inquired whether the English ship mortgage developed from, or was influenced by, the Roman law, or if it constituted a separate legal development.

At first glance, it would appear as if the ship mortgage, like so much else in maritime law, is of Roman origin, for it shares many similarities with the real securities in Roman law. The ship mortgage prior to the Merchant Shipping Act 1854 featured a transfer of ownership from the mortgagor to the mortgagee similar to that under the Roman mortgage called fiducia; similarly, the modern (post-1854) ship mortgage, much like the Roman hypotheca, was a mere charge on property, where the mortgagor remained the owner of the mortgaged property. These similarities, however, are just similarities. The lex maritima (i.e., the mediaeval maritime customs largely derived from Roman law) from which England received most of its maritime law did not include a ship mortgage; it had the bottomry and respondentia bonds.

The ship mortgage in English law developed from the common law concept of mortgages that had its origin with the primitive Anglo-Saxon mortgage known as the gage. The gage was a purely Germanic institution, brought to England by the Anglo-Saxon tribes prior to the Norman invasion in 1066. It was from this source that the idea of mortgages was implanted in England, and it was from these humble origins that the English ship mortgage ultimately developed.},
  author       = {Hellström, Christopher},
  keyword      = {Anglo-Saxon,ship mortgage,Roman law,English law,Maritime law},
  language     = {eng},
  note         = {Student Paper},
  title        = {English Saint or Roman Taint? A thesis on the potential connection between the English ship mortgage and the Roman mortgage law},
  year         = {2012},
}