An annotated translation of Bartolus' Tractatus de fluminibus seu Tyberiadis (Book 1)

Abstract

South African common law represents a European ius commune based upon Roman law and Roman-Dutch law of the seventeenth century. Included within South African common law is a large volume of medieval commentaries on Roman law, rarely touched upon by legal historians. The number of South African legal practitioners with a working knowledge of Latin has rapidly declined since the abolition of Latin as a compulsory subject for the LL.B degree in 1996. This state of affairs has led to the marginalisation of untranslated common law sources, as fewer legal practitioners are able to read and understand Latin. Although many Roman legal sources have already been translated into modem Romance languages, medieval commentaries on Roman law are still largely untranslated and therefore of little value to most legal practitioners. The idiosyncrasies and peculiar language of medieval legal Latin has further contributed to the untranslatability thereof, and even jurists with a working knowledge of classical Latin find it difficult to translate. This study aims to provide access through translation and historical annotation to an important untranslated medieval legal text, the Tractatus de fluminibus seu Tyberiadis by the medieval Italian jurist, Bartolus of Saxoferrato (1313 - 1357). The text is concerned with alluvion, an original mode of acquisition of ownership, which is still relevant in contemporary South African law and has recently been perpetuated in section 33 of the Land Survey Act 8 of 1997.