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Diplomatics, whether or not I want ’em

26 May, 2011

So I found some cool stuff on Google books today. Unfortunately, it’s all 19th C German legal scholarship, which means I have no idea how useful it really is. On the one hand, it offers very clear interpretations of some of the stuff I’ve wondered about for a long time. On the other, I have no idea if it’s correct or not (in terms of what we now understand). But there was a nice explanation of per manum clauses (once I figured out what some of the German words were), and now I just have to figure out if these were things that the early diplomatics people would have looked at.

Speaking of which, did you know that Breßlau worked with Heinrich von Trotschke for a while? I think this in part reaffirms my belief that we really can’t trust ANY early German diplomatics scholarship entirely — there’s just always the lingering spectre of circular nationalistic reasoning. For example, there’s the understanding of “national” law codes as being real exemplars of the values of particular people that obviously may be partially true, but is also now understood within the context of Carolingian meddling policy, I think? Or am I imagining that?

But really, what I meant to say was this:

how separable are praecarium and usufruct? That is, I understand how one could grant the latter without the former, and that sort of makes sense. I understand how one could grant the former without the latter, but it seems to me to be pointless. More importantly, I wonder how easy it was to keep such things straight among all the players.

6 Comments leave one →
  1. 27 May, 2011 5:19 am

    Legal history written by Germans is, in my opinion, some of the most turgid prose ever invented.I can only imagine how much worse the c. 19 stuff is.

  2. 27 May, 2011 3:47 pm

    It's actually really clear. SO clear that it frightens me a bit, because there are no nuances!

  3. 28 May, 2011 11:19 am

    As I understand it, precaria refers to how something is obtained – that is to say by beseeching someone else – (and thus perhaps the conditions on which it is held) and usufruct refers to what is granted, so there would be no necessary link between either. In other words you could obtain something other than usufruct precarially, and you could obtain the usufruct other than via precaria.

  4. 28 May, 2011 3:16 pm

    Jeez. You know, sometimes I do give a good imitation of clueless, don't I? For some odd reason (perhaps reading monastic charters and German lawyers writing about donationes post obitum?), I just plain forgot that there were other sorts of charters, and that there were other reasons for usufruct than simply supporting donors in their lifetimes. fiefs? vassals? annoying mothers-in-law? usufruct is your friend.

  5. 29 May, 2011 12:52 pm

    I've been looking at precariae a lot recently. Just to add to what Historian on the Edge said, the precaria also comes to refer to the granted property itself, as well as the charter containing the usufructuary request. The grant is contained in a response document called a prestaria.An interesting question is what the precise difference is between a precaria (precarium in late Roman law codes; precaria becomes the singular form in the 6th & 7th Cs) and a beneficium. Initially the word beneficium just expressed the sense of favour attached to a grant of usufruct. But in the Carolingian period, they both seem to serve the same purpose, i.e. one can hold a beneficium or a precaria.

  6. 29 May, 2011 2:30 pm

    Yep. As far as I can see that is right. When they first really kick in, in the senses in which we normally think of them, during the late seventh century and eighth centuries the only difference seems to me to be the side of the relationship you view the grant from, either precaria (the nature of the request) or beneficium (the nature of the grant). Otherwise they seem to be the same to all intents and purposes, although I have seen techical distinctions argued for later periods, like the C10th.And today's security word is 'amant', which is sweet.

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