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383
Fundamina 20 (1) 2014 ISSN: Print 1021-545X
© Unisa Press pp
ROMAN LAW AND THE DEVELOPMENT
OF HUNGARIAN PRIVATE LAW BEFORE THE
PROMULGATION OF THE CIVIL CODE OF 1959
Gábor Hamza*
1. Roman law and Medieval Hungarian customary law1
Although Hungary (the kingdom of Hungary, regnum Hungariae) had close relations with
the Byzantine Empire (Imperium Romanum Orientis or pars Orientis Imperii Romani),
the fact that King Stephen I (St. Stephen, 1000-1038) and his country embraced western
(Latin) Christianity made the penetration of Byzantine (Roman) law (ius Graeco-
Romanum) into Hungary impossible. It was only emperor Justinian’s codifi cation (528-
534), especially the Codex Iustinianus and some novels (Novellae), that made an impact
on the laws (decreta) of St. Stephen, even if indirectly.2
The Transdanubian part of Hungary was under Roman control for almost four
centuries. The provinces of Pannonia prima and Pannonia secunda, Savia and Valeria
1 T. Vécsey, A római jog története hazánkban és befolyása a magyar jogra (The History of Roman Law
in Hungary and its Impact on Hungarian Law), MS (Budapest, 1877-1878); Z. Pázmány, Il diritto
romano in Ungheria, (Pozsony, 1913); I. Zajtay, Sur le rôle du droit romain dans l’évolution du droit
hongrois, Studi in memoria P. Koschaker, vol. 2 (Milano, 1954); Gy. Bónis, Einfl üsse des römischen
Rechts in Ungarn, IRMAE V 10 (1964); idem, A jogtudó értelmiség a Mohács előtti Magyarországon
(Hungarian Intelligentsia Versed in Law in the Period Prior to Mohács), (Budapest, 1971): idem,
Középkori jogunk elemei (Elements of Hungarian Medieval Law), (Budapest, 1972); J. Zlinszky, Ein
Versuch der Rezeption des römischen Rechts in Ungarn, Festgabe A. Herdlitczka (München-Salzburg,
1972); I. Kapitánffy, Römisch-rechtliche Terminologie in der ungarischen Historiographie des 12-
14. Jh., Acta Antiqua Hungariae 23 (1975); B. Szabó, Die Rezeption des römischen Rechts bei den
Siebenbürger Sachsen, Publicationes Universitatis Miskolciensis. Series Juridica et Politica, Miskolc
IX (1994). For the role of Roman law in the medieval Hungarian state, see J. Gerics, A korai rendiség
Európában és Magyarországon (The Early Feudal State in Europe and Hungary), (Budapest, 1987).
2 See G. Hamza, Szent István törvényei és Európa (The Laws of Saint Stephen and Europe), Szent
István és Európa ed. G. Hamza (Budapest, 1991) and idem, Szent István törvényei és a iustinianusi jog
(The Laws of Saint Stephen and Justinian’s Law), Jogtudományi Közlöny 51 (1996). Cf. M. Jánosi,
Törvényalkotás Magyarországon a korai Árpád-korban (Legislation in Hungary in the Early Period
of the Árpád Dynasty), (Szeged, 1996).
383-393
* Professor of Law, Eötvös Loránd Tudományegyetem, Budapest.
GÁBOR HAMZA384
belonged to the western part of the Roman Empire. Romanisation included the sphere of
law, as witnessed by several inscriptions.3
a) Roman law started having a direct infl uence in Hungary only during the age of
the Glossators. Hungarian students were attending the University of Bologna (Studium
Bononiense) by the thirteenth century. There was even a separate ‘Hungarian nation’
(natio Hungarica) at that university with about eighty students from the kingdom of
Hungary (regnum Hungariae) attending the lectures (classes) of the glossators before
1301.
Other Hungarian students (peregrinatio academica) studied canon law in Paris and
became acquainted with Roman law. A few Hungarians studied law at the universities of
Padua, Oxford, and Cambridge amongst others. Hungarian students continued to go to
universities abroad under the Angevin (Anjou in French, Angioini in Italian) kings (1308-
1387). The fi rst university in Hungary (the fourth university in central Europe after the
foundation of the University of Prague (1348), the University of Cracow (1364) and the
University of Vienna (1365)) was established at Pécs (Civitas Quinqueecclesiensis in
Latin, Fünfkirchen in German) in 1367, and Roman law was probably taught there.4
As a consequence of these developments, the book of formulae (Formularium) by
János Uzsai, rector of the University of Bologna around 1340, and Bertalan Tapolczai
refl ected some Roman-law infl uence. The terminology of legal documents at that time,
as well as the chronicles written during the Árpád and Angevin dynasties, especially the
Gesta Hungarorum of Simon Kézai at the end of the thirteenth century, also refl ected the
infl uence of Roman law.
The impact of Roman law was much less marked in the ius scriptum, that is the
royal statutes and decrees. At the same time, certain principles of Roman public law (ius
publicum Romanum) can be traced, for example, in references to the plenitudo potestatis,
serving as a justifi cation for the preponderance of royal power at the time of the Anjou
dynasty and subsequently during the reigns of King Sigismund (1387-1437) and King
Matthias (1458-1490).
b) From the fi fteenth century onwards it was only wealthier intellectuals (churchmen
i.e. canonici in particular) who could afford to study in Italy. Less well-to-do students
went to Cracow or Vienna primarily to study canon law, but they also became acquainted
with Roman law. Tradition has it that King Matthias himself took an interest in the
question of the reception of Roman law in Hungary.
King Matthias attempted to codify Hungarian law by passing Act VI of 1486
(Decretum maius), whose preamble follows the structure and terminology of the
3 See K. Visky, A római magánjog nyomai a magyar földön talált római kori feliratos emlékeken (Traces
of Roman Private Law in Roman Inscriptions Found on Hungarian Soil), Jogtörténeti Tanulmányok 5
(1983).
4 For the Hungarian peregrinatio academica at the faculties of law at European universities see B. Szabó,
Előtanulmány a magyarországi joghallgatók külföldi egyetemeken a XVI-XVII. században készített
disputatióinak (dissertatióinak) elemzéséhez (Preliminary Study of the Analysis of Dissertations
Prepared by Hungarian Students of Law Studying Abroad in the Sixteenth and Seventeenth Centuries),
Publicationes Universitatis Miskolciensis. Series Juridica et Politica VIII 5 (Miskolc, 1993). For the
beginnings of Hungarian higher education see A. Csizmadia, A pécsi egyetem a középkorban (The
University of Pécs in the Middle Ages), (Budapest, 1965).
385 ROMAN LAW AND THE DEVELOPMENT OF HUNGARIAN PRIVATE LAW
constitutio imperatoriam maiestatem and contains several Roman-law elements and
terms. The Decretum maius was repealed six years later, after the death of King Matthias,
under the reign of king Wladislaw II.
The great Spanish humanist of Valencia, Juan Luis Vives (1492-1540) maintained
that the Hungarian King Matthias (Matthias rex) intended to give native or vernacular
law (ius patrium) a new foundation through the reception of Roman law, but because of
the diffi culties inherent in this process, gave up his plan. Although Imre Kelemen still
found this view credible in the early nineteenth century, Ignác Frank rejected it as lacking
any foundation in the sources. However, it is undeniable that King Matthias’ attempt to
strengthen royal power especially in the last decade of his reign, was theoretically based
on Roman-law principles.
A few Hungarian law-books surviving from the Middle Ages, written in German
in the fi fteenth century, especially those of Buda and Pozsony (Pressburg in German,
Presbourg in French, now Bratislava in Slovakia) contain Roman-law technical terms,
and refer to Roman-law institutions.
2. István (Stephanus) Werbőczy and the Tripartitum
The law-book of Chief Justice István (Stephanus) Werbőczy (c. 1458-1541) systematising
feudal customs (consuetudines) was in Latin, which was the language of administration
of the kingdom of Hungary (lingua patria), and it was entitled Tripartitum opus iuris
consuetudinarii inclyti regni Hungariae. Showing the impact of Roman law in many
respects, this general and comprehensive decretum was the fi rst to set down native
custom in writing. It was accepted by the Diet of 1514 and sanctioned by the king,
Wladislaw II (1490-1516), but was never promulgated, so never formally became a
source of law. Werbőczy’s Tripartitum nevertheless became authoritative despite its
failure to be enacted. Werbőczy had the Tripartitum printed in Vienna three years later
in 1517, and himself sent it to the county towns. Since the county town tribunals (sedes
judiciariae) were generally in the hands of the lesser nobility (Kleinadel in German),
within a few decades the Tripartitum was widely used in the courts and became part of
Hungarian customary law, especially after it was translated into Hungarian.
The Tripartitum was implemented in Transylvania, the ‘second Hungary’, which for
150 years after the feudal period had since 1541 been a semi-independent principality
under a Hungarian prince under the rule of János Szapolyai, of whom Werbőczy was
a leading supporter. Indeed, after the dissolution of the semi-independent Hungarian
principality, King Leopold I (1657-1705) of Hungary who was also the emperor of the
Holy Roman Empire, once he acquired the princedom, enacted the charter (Diploma
Leopoldinum) of 1691 that recognised the Tripartitum as a source of law in Transylvania.
Judicial practice in Hungary also necessitated the inclusion of the Tripartitum in the
sources of law of the kingdom. The authors of the compilation of Hungarian law, the
Corpus juris Hungarici, in its edition of 1628, included the Tripartitum.
In the following centuries, Roman law made further appearances but was never
formally received in the Hungarian legal system. Its principles and terminology came to be
incorporated in Hungarian decisions primarily through the works of the Quadripartitum,
which succeeded the Tripartitum.
GÁBOR HAMZA386
As a law-book (Rechtsbuch in German, coutumier in French, jogkönyv in Hungarian)
Werbőczy’s work comprised contemporary feudal customary law and the royal decrees
that used predominantly Roman terminology. However, the texts taken from Justinian’s
codifi cation (compilation) were probably included only to increase the prestige of the
Tripartitum. The links between the Tripartitum and Roman law are conspicuous in the
following aspects:5
a) The division of the book into chapters on de personis, de rebus, and de actionibus
follows the Roman-law tradition. Werbőczy nevertheless had to admit that it was useless
to try to force Hungarian feudal law into the framework of personae-res-actiones (the
system of the Institutes of Gaius).
b) Similarly, the general terms of Roman law, such as ius naturale, ius publicum,
ius privatum, ius civile, and ius gentium, and its legal principles, such as ius est ars boni
et aequi, were formally adopted, mostly in the Prologus, but are not incorporated in the
regulations of the Hungarian ius consuetudinarium in the Tripartitum.
c) The impact of Roman law on the Tripartitum is also noticeable in its legal
terminology, although this does not always accord with the original meaning; and in
several legal institutions taken over from Roman private law, such as the division of
guardianship into testamentary, statutory, and commissioned versions, certain rules
concerning wills, paternal power.
Where Werbőczy gained his knowledge of Roman law and what the sources were of
the Roman-law texts in the Tripartitum, is still a subject of debate among legal historians.
His principal source must have been the textbook of Roman and canon law written by
Master (magister) Raymundus6 at Naples in the thirteenth century. This must have been
taken to Hungary and Poland in the course of the military campaigns waged in Naples
by King Louis I (the Great) (1342-1382) around the middle of the fourteenth century. In
Poland, the Tripartitum even became a national statute (statutum).
The so-called Summa legum Raymundi contained the customary law of the South
Italian towns and the penal laws of the Angevin kings, and came to form part of the law-
books of several royal free cities in Upper Hungary (such as Bártfa and Eperjes). There
were also manuscript versions of it at Cracow and Wiener Neustadt. Recent research
shows that Werbőczy’s source must have been the one from Cracow, which leads us to
conclude that he must have studied there.
5 See A. Földi, A római személyi és családi jog hatása a Tripartitumra (The Impact of the Roman Law
of Persons and Family Law on the Tripartitum), Jogtudományi Közlöny 48 (1993) and idem, Werbőczy
és a római jog (Werbőczy and Roman Law), Degré A. Emlékkönyv ed. G. Máthé (Budapest, 1995); G.
Hamza, Werbőczy Hármaskönyvének jogforrási jellege (Werbőczy’s Tripartitum as a Source of Law),
Jogtudományi Közlöny 48 (1993) and idem A Tripartitum mint jogforrás (The Tripartitum as a Source
of Law), Degré A. Emlékkönyv ed. G. Máthé (Budapest, 1995).
6 Experts are uncertain of the identity of the author of the textbook, since the name Raymundus
appeared in a Cracow manuscript for the fi rst time only in 1506. See E. Seckel, Über die Summa
legum’ des Raymund von Wiener Neustadt, Beiträge zur Geschichte beider Rechte im Mittelalter,
vol. 1 (Tübingen, 1898); A. Gál, Die Summa legum brevis, levis er utilis des sog. Doktor Raymundus
von Wiener Neustadt, (Weimar, 1926); Gy. Bónis, Der Zusammenhang der Summa Legum’ mit dem
Tripartitum’, Studia Slavica Hungarica, Budapest XI (1965).
387 ROMAN LAW AND THE DEVELOPMENT OF HUNGARIAN PRIVATE LAW
3. Hungarian private law from 1514 to the nineteenth century7
At the time when the Tripartitum was written, economic development in Hungary was
mostly confi ned to towns, but production for the market was already increasing on the
estates of the nobility. These changes must have contributed to the compilation of the
Formularium Posoniense by Prebend Imre Pápóczi in the 1530s. This collection of
laws was intended to be a textbook and to regulate the improving economic conditions
of the day through contractual formulas resembling Roman-law ones, and through his
commentaries. The impact of Roman law may also be seen in the laws passed in the fi rst
half of the century.8
Werbőczy’s Tripartitum that contained feudal private law and generally referred to
Roman law formally without incorporating it, became ‘the Bible or Holy Scripture of the
nobility’ for the following three centuries, paralysing the development of both law and
legal science. Although in the sixteenth century the Hungarian humanists tried to effect
at least a partial reception of the Corpus iuris civilis, they failed to break the power of the
Hungarian customary law.
Iohannes Honterus (1498-1549) published his work Sententiae ex libris pandectarum
iuris civilis, which is mainly of a didactic nature, in Brassó (Kronstadt in German,
now Braşov in Romania) in 1539, with a view to acquainting the public with Roman
law. In its preface, he emphasised the advantages of Roman law as against municipal
custom, which was often uncertain. Another work by Honterus, based on Roman law and
entitled Compendium iuris civilis in usum civitatum ac sedium Saxonicarum collectum
in Transsilvania (1544), subsequently served as a basis for the municipal statutes of the
Saxon towns of Transylvania. These statutes remained valid in the Királyföld (King’s
Land in English, Königsboden in German, Fundus regius in Latin) for three centuries
after 1583.
Iohannes Sambucus (János Zsámboki, 1531-1584) was responsible for the fi rst
edition of the Corpus iuris Hungarici in 1581. Zsámboki included in this edition (as
an appendix to the Tripartitum of Werbőczy) the legal principles found in the last title
of the Digesta (50,17) under the subtitle Regulae iuris antiqui, which indicated their
formal reception in the Hungarian legal system. The work of Iohannes Decius Barovius
(János Baranyai Decsi, c. 1560-1601) entitled Syntagma institutionum iuris imperialis
sive Iustiniani et Hungarici (1593) introduces the institutions of the ius patrium in the
framework of Justinian’s Institutiones.
In the seventeenth and eighteenth centuries, Roman law was primarily a subject
taught at the universities, chiefl y at Nagyszombat (today Trnava in Slovakia). The impact
of Roman law was also discernible in works dealing comprehensively with Hungarian
law.
7 A. Degré, Elemente des römischen Rechts im Vermögensrecht der ungarischen Leibeigenen, Einzelne
Probleme der Rechtsgeschichte und des römischen Rechts, (Szeged, 1970); K.K. Klein, Der Humanist
und Reformator Johannes Honter, (Sibiu, 1936).
8 Act XLIII of 1542 about affi liation shows, for example, the direct impact of the SC Plancianum of
Emperor Vespasian; see T. Vécsey, Az 1542. évi pozsonyi országgyűlés 43-ik törvényczikke (Act nr.
XLIII of 1542 of the Diet of Pozsony), Századok 43 (1909).
GÁBOR HAMZA388
The work of János Szegedy (1699-1760) entitled Tripartitum iuris Hungarici
tyrocinium (1734) compared the institutions (Rechtsinstitute in German) of Hungarian
and Roman law.
The reforms of the king of Hungary, Maria Theresia (1740-1780) had a marked effect
on the teaching of law at the universities. The (fi rst) Ratio educationis of 1777 provided
that legal history, private law, criminal law and procedural law should be included in
the teaching of Hungarian law, and that public law was to be a separate subject. The
fi rst treatise on the vernacular law for universities was written in 1751 by István Huszty
(c. 1710 - c. 1772), professor at the Academy of Law in Eger (Erlau in German). This
work did not develop basic Hungarian customary law, though it was used as a textbook
for half a century.
The fi rst step towards the codifi cation of private law in Hungary was taken in the
last decade of the eighteenth century. The Diet of l790-1791 set up a legal committee
(deputatio juridica) to prepare the necessary reforms. A criminal code (codex de delictis
eorumque poenis) and a draft civil code (projectum legum civilium) were prepared for
debate in the following Diet.
4. The science of Roman law and private law in the nineteenth
century9
The (second) Ratio educationis of 1806 issued by the Emperor of the Holy Roman
Empire and king of Hungary, Francis I (1792-1835) improved the teaching of Hungarian
law (ius patrium) by separating the teaching of criminal law and private law.
Imre Kelemen (1744-1819), an outstanding scholar of civil law, frequently referred
to Roman law, especially in his Institutiones iuris Hungarici privati (1814).10 Kelemen
had a new approach. In the fi rst volume of this four-volume work he dealt with the
history of private law according to the royal decrees and statutes adopted by the diets;
in the second volume he followed Werbőczy’s system based on the Institutiones (de
personis, de rebus and de actionibus). He discussed the characteristics of Hungarian
customary law. His Institutiones iuris Hungarici privati also refers to the infl uence of
Roman law and canon law on a number of legal institutions in the Hungarian ius patrium.
The infl uence of Savigny’s branch of Pandektistik or Pandektenwissenschaft, prompted
the fi rst signifi cant change in Hungarian law.
9 E. Pólay, A pandektisztika és hatása a magyar magánjogtudományra (The Pandectist School and
its Impact on Hungarian Civil Law Jurisprudence), Acta Universitatis Szegediensis de Attila József
nominate. Acta Iuridica et Politica, Szeged 23, 6 (1976); J. Zlinszky, Wissenschaft und Gerichtsbarkeit.
Quellen und Literatur der Privatrechtsgeschichte Ungarns im 19. Jahrhundert, (Frankfurt-am-Main,
1997). For Ignác Frank, see L. Villányi Fürst, Jogi professzorok emlékezete (In Memoriam of Some
Professors of Law), (Budapest, 1935); For Gusztáv Wenzel, see T. Balázs, Annales Universitatis
Scientiarum Budapestinensis de Rolando Eötvös nominatae, Sectio Iuridica, Budapest 31 (1990). For
Gusztáv Szászy-Schwarz, see K. Szladits, Magyar jogászegyleti értekezések (Studies Prepared for the
Hungarian Association of Lawyers), (Kecskemét, 1934); For Elemér Balogh, see G. Hamza, Balogh
Elemér, a római jog művelője (Elemér Balogh, the Roman Law Scholar), Jogtudományi Közlöny 35
(1980).
10 This work was also published four years later, in 1818 in Vienna, in German as Darstellung des
ungarischen Privatrechts.
389 ROMAN LAW AND THE DEVELOPMENT OF HUNGARIAN PRIVATE LAW
Mátyás Vuchetich (1767-1824), a follower of the ideas of Karl Anton von Martini
(1726-1800) and Franz von Zeiller (1751-1828), was the author of the works De origine
civitatis (1806) and Elementa juris feudalis (1824). In these works dealing mainly with
private and criminal law, Vuchetich traced the evolution of Hungarian customary law,
taking into account the judicial practice of the Supreme Court (curia).
According to László Szalay (1813-1864), Ignác Frank (1788-1850), the fi rst notable
scholar of civil law in the nineteenth century, and professor at the University of Pest,
may be considered ‘the pioneer of a new era’ despite his opposition to codifi cation. In his
work Specimen elaborandarum insitutionum iuris civilis Hungarici published in Kassa
(Cassovia in Latin) in 1823, which refl ects the infl uence of natural law (ius naturale
or ius naturae) as represented by Christian Wolff (1679-1754), Frank used Roman-law
terminology to describe modes of land ownership. Roman (Latin) legal terminology may
be found in several of his other works when he discusses issues in Hungarian law.
Frank expounded his principles in a major work in two volumes that appeared in Pest
in 1829, the Principia iuris civilis Hungarici. Having examined the origins of Hungarian
law, he concluded that it had been infl uenced by Roman and Canon law and also by
French and German law. He asserted that the Germans had transmitted their civilisation
and institutions to Hungary. He cited as examples of this assertion the institution of a
National Assembly, legislative procedure, the privileges of the nobles, the status of the
serfs (servientes), the institutions of feudal fi efs and grants, the mortgaging of lands,
the dowry, the use of the blood-price, and the various types of court procedure. The
Tripartitum of Werbőczy led him to believe that the system of civil procedure was
brought to Hungary from France during the reign of Charles Robert (1308-1342).
The Principia iuris civilis Hungarici was undoubtedly the most comprehensive work
on the Hungarian ius privatum feudale. Frank expanded on it in a work published in three
volumes in Hungarian, entitled A közigazság törvénye Magyarhonban, (Buda, 1845-
1847). This work was by no means a mere translation of the Latin book. A közigazság
törvénye Magyarhonban updated the Principia iuris civilis Hungarici with references
to new legislation and made use of historical documents that had been published in the
meantime. With the help of these, Ignác Frank tried to explain the evolution of some
rules of customary law, and sometimes criticised its surviving rules, explaining that they
had originated under quite different circumstances and had had different objectives.
Ignác Frank’s pupil, Gusztáv Wenzel (1818-1891) was a dedicated follower of the
Historical School of Law (Historische Rechtsschule) and often referred to Roman law
in his writings.
From the second half of the nineteenth century, the Pandectist School, and especially
Jhering, through the works of Gusztáv Szászy-Schwarz (1858-1920), a civilian jurist of
universal scope, increasingly impacted on Hungarian jurisprudence and the practice of
the courts. Since almost all Hungarian Romanists and civilian jurists had been pupils
of German Pandectists11 they contributed to the spread of several elements of German
Pandect law (Pandektenrecht) in legal practice.
11 E.g., Szászy-Schwarz and Mihály Biermann (1848-1889), a professor of law at Győr and Nagyszeben
(Hermannstadt in Germany, now Sibiu in Romania) attended the lectures of Jhering; and Elemér
Balogh (1887-1953), an outstanding expert on comparative law, was a disciple of Heinrich Dernburg
in Berlin.
GÁBOR HAMZA390
5. The role of Roman law in the codifi cation of Hungarian private
law12
Act XVIII of 1791 was the fi rst step towards the codifi cation of the Hungarian ius
privatum. It required a legal committee to prepare a draft civil code (Proiectum
nonnullarum utilium civilium legum). The draft was ready in two years, but was printed
only in 1826. Neither its structure, nor its content refl ected the impact of Roman law,
and it could not be called a draft code in the true sense of the word. The Code civil could
not be received in Hungary by a natural process, though László Szalay thought it to be
an ideal model for a Hungarian codifi cation. Political developments also prevented the
second attempt at codifi cation that was envisaged by Act XV of 1848.
The Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch für die
Österreichischen Erbländer, ABGB) was enforced in Hungary and Transylvania
(Siebenbürgen in German) in 1853, so codifi cation was out of the question until the
Austro-Hungarian Compromise (Ausgleich in German, Kiegyezés in Hungarian) of
1867. The general part of the General Code of Private Law (1871) was prepared by
the Romanist Pál Hoffmann and modelled on the Saxon Civil Code (Bürgerliches
Gesetzbuch für das Königreich Sachsen) of 1863, refl ecting primarily the infl uence
of Georg Friedrich Puchta (1798-1846). This code was virtually a codifi cation of all
Pandectist doctrines. The draft law of succession by István Teleszky (1836-1899)
of 1882 in both its structure and its theoretical basis stemmed from the Saxon Civil
Code, which in turn relied on the Saxon law of succession and its institutions. István
Apáthy’s (1829-1889) Draft Law of Obligations of 1882, infl uenced by the Draft Law
of Obligations for the German States (Dresdner Entwurf) of 1866, that prepared the way
for the future Bürgerliches Gesetzbuch (BGB), followed Savigny’s theory of consensus
concerning legal transactions (Rechtsgeschäftslehre), similar to Hoffmann’s approach.
The same applies to the draft of the general part by Elek Győry (1841-1902) prepared
in 1880. The impact of the Pandectist School is not so marked in the partial draft of the
law of things by Endre Halmossy (1882) nor in the draft concerning matrimonial law, the
law of persons, and property law by Benő Zsögöd (alias Béni Grosschmid, 1852-1938).
The idea of a comprehensive civil code gained ground from 1895 onwards. One of
its most consistent advocates was Gusztáv Szászy-Schwarz, who wished to base the
codifi cation of Hungarian civil law on Roman law.
The 1900 draft, whose structure and institutions resemble those of the German BGB,
discarded the idea of partial codifi cation. It consisted of four parts (the law of persons and
12 R. Dell’Adami, Az anyagi magánjog codifi catiója. I A nemzeti eredet problémája (The Codifi cation
of Private Law. I: The Problem of our Nation’s Origin), vol. 1 (Budapest, 1877) and idem, Magánjogi
codifi catiónk és régi jogunk, vol. 1 (The Codifi cation of Our Private Law and Our Ancient Law),
(Budapest, 1885); A. Meszlény, Magánjogpolitikai tanulmányok különös tekintettel a magyar
általános polgári törvénykönyv tervezetére (Studies on the Policy Concerning Private Law with
Special Regard to the Draft of the General Hungarian Civil Code), (Budapest, 1901); G. Szászy-
Schwarz, A magánjogi törvénykönyvről. Tanulmányok és bírálatok (On the Civil Code. Analysis and
Criticisms), (Budapest, 1909); F. Mádl, Kodifi kation des ungarischen Privat- und Handelsrechts im
Zeitalter des Dualismus, Die Entwicklung des Zivilrechts in Europa (Budapest, 1970); A. Csizmadia,
Ungarische zivilrechtliche Kodifi kationsbestrebungen im Reformzeitalter, Rechtsgeschichtliche
Abhandlungen, vol. VI (Budapest, 1974).
391 ROMAN LAW AND THE DEVELOPMENT OF HUNGARIAN PRIVATE LAW
family, the law of obligations, the law of things, and the law of succession) but had no
general section. Its fi rst few titles concerned the law of obligations. With regard to legal
transactions (Rechtsgeschäfte), it followed the theory of declaration (Erklärungstheorie).
The impact of the German BGB was more noticeable in the next private-law draft of
1913, which was shorter and like the former one, had no general section.
The Draft Civil Code of 1928 (Magánjogi Törvényjavaslat in Hungarian), considered
by the courts as a ratio scripta, and in the drafting of which Béla Szászy (1865-1931)
played an outstanding part, refl ected the strong infl uence of the Swiss Zivilgesetzbuch
(ZGB) of 1907 and Obligationenrecht (OR) of 1881 (revised in 1907).13
6. Outstanding Roman-law specialists (Romanists) in Hungary in
the nineteenth and twentieth centuries14
Roman law has been taught at Hungarian universities ever since the establishment of
the faculty of law at the University of Nagyszombat (Tyrnau in German, now Trnava in
Slovakia) in 1667. The fi rst professor of Roman law at the University of Nagyszombat
was Ádám Takács (Textor). The fi rst surviving scholarly writings on the subject were
by Ernő Frigyes Someting during whose professorship (1691-1695) the fi rst open
disputations on Roman law were held. Between 1733 and 1749 important contributions
were written by János József Rendek, the author of the oldest Roman-law textbook in
Hungary, published in 1734. For a long time education at Nagyszombat (after 1777
in Buda and fi nally in Pest) was based on commentaries on the Institutiones and the
Digesta of Justinian by foreign authors. Mihály Szibenliszt, professor in Pest, published
a textbook of a high standard in 1829 (Institutiones iuris privati Romani), comparable to
ones written in other parts of Europe.
The fi rst Roman-law textbook in the Hungarian language by János Henfner (1799-
1856) professor at the University of Pest, with the title Római magánjog (Roman Private
Law) was published in 1855-1856 in three volumes.
The fi rst professor teaching Roman law at the Western European level was Pál
Hoffmann (1830-1907), a follower of Friedrich Carl von Savigny, with his ‘school of
13 It is quite enlightening to consider the infl uence of the Pandectist School on strict liability. Based on
the German BGB, though not on its literal translation, the draft Hungarian civil code of 1900 regulated
liability on the basis of fault (culpa). Section 1486 of the draft of 1913 (based on the fi rst draft (Erster
Entwurf) of the BGB of 1887) mentioned damages on an objective basis. The famous § 1737 of the
Draft Civil Code (Magánjogi Törvényjavaslat, abbreviated Mtj.) of 1928, regulating responsibility on
the basis of equity (Billigkeitshaftung in German), followed the second draft (Zweiter Entwurf) of the
BGB, however indirectly, making liability for damages on an objective basis possible in a subsidiary
regulation.
14 M. Móra, Über den Unterricht des römischen Rechts in Ungarn in den letzten hundert Jahren, Revue
Internationale des Droits de l’Antiquité 11 (1964); E. Pólay, A római jog oktatása a két világháború
között Magyarországon (1920-44) (Teaching of Roman Law in Hungary Between the Two World
Wars, 1920-44), (Szeged, 1972); G. Hamza, A római jog oktatásának és művelésének történetéhez
egyetemünkön (To the History of the Teaching and Study of Roman Law at Our University), Acta
Facultatis Politico-Iuridicae Universitatis Scientiarum Budapestinensis de Rolando Eötvös nominatae,
Budapest 26 (1984).
GÁBOR HAMZA392
legal thinking’. In the second half of the nineteenth century Roman law was taught in
two parts, an ‘institutions course’ (Institutionenkursus) giving the history and a short
summary of Roman law, and a ‘pandects course’ (Pandektenkursus).
The textbook of Alajos Bozóky (1842-1919), professor at the Academy of Law at
Nagyvárad (Grosswardein in German, now Oradea in Romania), followed the nineteenth-
century system of teaching Roman law, dealing with institutions and pandects separately.
Some Romanists, like Pál Hoffmann from Budapest and Lajos Farkas (1841-1921) from
Kolozsvár (Klausenburg in German, now Cluj-Napoca in Romanian) – both of whom
were followers of Savigny – emphasised the importance of legal history. Others like
Gusztáv Szászy-Schwarz from Budapest and Mór Kiss (1857-1945) from Kolozsvár, the
followers of Rudolf von Jhering, approached Roman law according to the modern theory
of the pandects, as distinct from the German Pandectist School, thus bringing Justinian’s
codifi cation nearer to everyday practice. Tamás Vécsey (1839-1912), professor at the
University of Budapest, took an approach that was between these two trends. The
unfortunately unfi nished book of Károly Helle (1870-1920) helped students become
acquainted with the sources of Roman law.15
After World War I, the institutions and pandects were no longer taught together – only
the former were taught. The same happened in the relevant jurisprudence. Géza Marton
(1880-1957), an outstanding expert on civil law responsibility, who was well known all
over Europe, took a ‘historical-modernist’ approach to teaching the dogmatics of Roman
law. His textbook served as a basis for teaching Roman law at almost all Hungarian
universities and academies of law for four decades. Kálmán Személyi (1884-1946), the
renowned expert on the critique of interpolations (Interpolationenkritik in German), was
professor at Szeged and at Kolozsvár.
In the years before World War II, professors of Roman law were the following:
Albert Kiss (1873-1937), Nándor Óriás (1886-1992), Zoltán Pázmány (1869-1948),
Márton Szentmiklósi (Kajuch) (1862-1932), and Zoltán Sztehlo (1889-1975). Pázmány
and Sztehlo also taught juristic papyrology, as did Géza Kiss (1882-1970), who was
professor of Roman law at Nagyvárad in the years prior to World War I and later at
Debrecen, and András Bertalan Schwarz (1886-1953), professor in Zurich, Freiburg in
Breisgau, and Istanbul.16
Outstanding Roman-law scholars in Hungary after World War II were Károly Visky
(1908-1984), Róbert Brósz (1915-1994), Elemér Pólay (1915-1988), Ferenc Benedek
(1926-2007) and György Diósdi (1934-1973).17
15 For Pál Hoffmann and Tamás Vécsey, see G. Hamza, cit., Jogtudományi Közlöny 35 (1980) and idem,
Emlékezés Vécsey Tamásra, a nemzetközi hírű jogtudósra (Commemoration of Tamás Vécsey, the
Legal Scholar of European Reputation), Jogtudományi Közlöny 40 (1985).
16 For Géza Marton, see G. Hamza, ed., Tanítványok Marton Gézáról (Pupils Remember Géza Marton),
(Budapest, 1981); for Nándor Óriás, see Gy. Gátos, In memoriam Óriás Nándor (In Memoriam
Nándor Óriás), Jogtudományi Közlöny 47 (1992); for András Bertalan Schwarz, see G. Hamza,
Schwarz András Bertalan emlékezete (Commemoration of András Bertalan Schwarz), Jogtudományi
Közlöny 34 (1979).
17 For Károly Visky, see G. Hamza, Visky Károly (1908-1984) (Károly Visky (1908-1984)), Jogtudományi
Közlöny 39 (1984); for Róbert Brósz see A. Földi, ed., Flosculi professori R. Brósz oblati, (Budapest,
1990) and G. Hamza, In memoriam Brósz Róbert (1915-1994) (In Memoriam Róbert Brósz (1915-
393 ROMAN LAW AND THE DEVELOPMENT OF HUNGARIAN PRIVATE LAW
Abstract
Although Hungary had close relations with the Byzantine Empire, the fact that King
Stephen I (St. Stephen) (1000-1038) and his country adopted western Christianity made
the penetration of Byzantine (Roman) law into Hungary impossible. Roman law had
a direct infl uence in Hungary only during the age of the Glossators. The impact of
Roman law was much less marked in the royal statutes and decrees, the ius scriptum.
King Matthias made an attempt to codify Hungarian law by issuing Act VI of 1486
(Decretum Maius). The law-book of Chief Justice Stephanus Werbőczy (c. 1458-1541)
systematising feudal customs in Latin, the language of administration of the kingdom of
Hungary, was entitled Tripartitum opus iuris consuetudinarii inclyti regni Hungariae.
It was never promulgated, so never formally became a source of law but nevertheless it
became authoritative. Containing feudal private law, and usually applying Roman law
only formally, it became ‘the Bible of the nobility’ for the following three centuries.
The fi rst attempt to codify private law in Hungary was made in the last decade of the
eighteenth century. The Diet of l790-1791 set up a legal committee to prepare the
necessary reforms. The idea of a comprehensive Hungarian civil code gained ground
from 1895 onwards. One of its most consistent advocates was Gusztáv Szászy-Schwarz,
who wished Roman law to form the basis of a codifi cation of civil law in Hungary. The
Draft Civil Code of 1928, considered by the courts as ratio scripta (until the Civil Code
of 1959 came into operation) refl ected the strong impact of the Swiss Zivilgesetzbuch of
1907 and Obligationenrecht of 1881.
1994), Jogtudományi Közlöny 49 (1994); for Elemér Pólay and György Diósdi see G. Hamza, In
memoriam Elemér Pólay (1915-1988), Annales Universitatis Scientiarum Budapestinensis de Rolando
Eötvös Nominatae. Sectio Iuridica, Budapest 32 (1991) and idem, Emlékezés Diósdi Györgyre, a hazai
jogtudomány európai hírű művelőjére (Commemoration of György Diósdi, the Renowned Scholar of
the Hungarian Legal Science), Jogtudományi Közlöny 39 (1984).
