A Case of a Missing “Non”: Arnold Vinnius as a “Bartolist”

Arnold Vinnius (1588-1657) was an eminent Dutch lawyer. Just like most other representatives of the Dutch “Elegant School” of jurisprudence of the 17th century, he was an author in the tradition of Legal Humanism, profoundly influenced by the French lawyer Hugo Donellus (1527-1591).

The legal humanists had a tendency to dismiss the scholastic constructs of medieval lawyers, to search for the original meaning of the Roman legal texts and to prefer the newer and more precise editions of the Roman texts to the old and imperfect medieval ones.

Yet, here is a clear case where Vinnius, contrary to his Humanist credentials, prefers a medieval (“bartolist”) interpretation to the more “purist” version of the Roman text.

There is a fragment in the Digest, D.42.8.9, describing a debtor who performs a disposition of property in fraud of his creditors. The remedy for the creditors was to be an actio Pauliana. The original Roman text of D.42.8.9 spoke about a debtor whose goods were already seized by his creditors - “cuius bona possessa sunt”. However, the medieval manuscripts of the Digest, based on the Littera Bononiensis, contained an additional “non” in the fragment (“possessa non sunt”), which implied that the debtor’s goods were not yet seized. The later 16th century was a period of transition, because the printed editions of the Digest ceased using the flawed medieval text and started using the older and purer manuscripts (the Littera Florentina). Thus, while in the 1560 Lyon edition of the Digest the fragment reads as “possessa non sunt”, the 1627 Lyon edition drops the “non”.

The textual difference was influential in pushing the medieval legal doctrine in a certain direction. Where the Romans generally used actio Pauliana to protect creditors against fraud, the medieval lawyers limited its use to the time previous to the missio in possessionem by the creditors; after the missio, the creditors could use the more efficient hypothecary action, which did not require a proof of fraudulent intentions. While the Roman lawyers would use the subjective intention of fraud by the bankrupt debtor as the main criterion for the invalidity of his transactions, the medieval doctrine took a more objective approach, assigning particular importance to the moment of missio in possessionem, when all the debtor’s creditors acquired a collective real right (“praetorian pledge”) in the debtor’s goods. In general, the medieval doctrine provided a much stronger protection for the collective equality of creditors of a bankrupt.

The surprising fact is that Arnold Vinnius, despite using the new (the correct) version of the text of the Digest, still, essentially, followed the medieval doctrine. In his Commentary on the Institutes, Inst.IV.6.6 (first published in 1646), he asserts that after the missio in possessionem the creditors have a hypothecary action, which makes actio Pauliana redundant. Against the more purist approach of the Brabantian lawyer Johannes Deckher, he stresses that an actio Pauliana is applicable to fraudulent alienations committed both before and after the missio in possessionem. On the issue of payment made by the debtor to one of the creditors before the missio or official bankruptcy, he even refers to Bartolus, although he does not seem to fully agree with the latter’s views.

In this respect, Vinnius was not alone among the Dutch lawyers. The authors of the “Elegant School”, in general, shared the heightened emphasis on the missio in possessionem as the crucial moment which “collectivized” the creditors. It is unlikely for this approach to have been inspired by Dutch practice: to the contrary, Dutch practice did not have the missio or a strongly similar device. The more plausible explanations could be either the strength of the medieval legal tradition or the conscious intention of the Dutch authors to extend the protection of creditors as a collectivity.