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Licensed Unlicensed Requires Authentication Published by De Gruyter June 25, 2021

VI. Tryphonin, Papinian und die Rücksicht auf immaterielle Nachteile im Schuldrecht

Jan Dirk Harke

Abstract

Tryphonin, Papinian and the regard for immaterial losses in the law of obligations. Contrary to the first impression given by the sources, there is no dispute among late classical lawyers as to whether a creditor can obtain compensation for an immaterial loss. Rather, the only disputed issue is whether a creditor can demand compensation for performance of monetary value even if it had benefitted a third party. Papinian and Paul affirm this with reference to the precept of bona fides. Tryphonin focuses on the creditor’s freedom of disposal: If the creditor can claim his interest in a hypothetical sale of the object of performance, he must also be entitled to do so if he wants to pass it on free of charge and thus prove his generosity.

Published Online: 2021-06-25
Published in Print: 2021-06-25

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