Pecunia traiecticia and project finance:: the decodified legal systems and investments in risky ventures

• Grzegorz Jan Blicharz ^[1]
  1. [1] University in Krakow
• Localización: Teoria e storia del diritto privato, ISSN-e 2036-2528, Nº. 10, 2017, pág. 12
• Idioma: inglés
• Enlaces
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• Resumen

  • The paper seeks to broaden the legal studies on the sea loan by an analysis of the western legal tradition. It undertakes an attempt to find out whether the Roman concept of the sea loan is applicable nowadays. The revival of an ancient solution is more plausible thanks to the idea of the Project Finance and the ongoing process of the decodification of private law.

    The ancient legal institution of pecunia traiecticia and the modern idea of the Project Finance are good examples of the legal solutions that existed or exist outside the codified legal structure.

    A broad insight into the history of the sea loan shows how many different contracts were developed under the influence of the pecunia traiecticia. It was a fact in Roman law, in ius commune and in the common law tradition. The vivid development of contractual agreements concerning risky ventures: both on sea and on land was stopped, however, by the process of codification and by the rise of statutory liens, and insurance contracts.

    The market of risky investments has started to present a challenge to the process of codification once again in the 20th and 21st century. It has been driven by many soft law regulations and uncodified practical solutions. One of them is Project Finance that today seems to be the legal regulation that is the closest to the Roman sea loan. It is an uncodified way to finance and organize risky investments. The significant decentralization of legal systems in all their dimensions, or even in their breakdown into the independent systems makes the revival of pecunia traiecticia more plausible. It can be a useful, less risky alternative to the instruments of speculative investment, e.g. options contracts, forward contracts, hedge contracts, and a less complicated contract than a set of instruments used in the Project Finance. Flexibility of legal solutions used in the risky ventures, variety of legal sources and the openness to the legal tradition could make contemporary legal systems more just and effective than in the era of codification.