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Robert Joseph Pothier

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A celebrated French lawyer, b. at Orléans, 9 January, 1699; d. there, 2 March, 1772. His father was a judge of the petty court, a position later filled by the son (1750), who at the same time was professor of French law at the University of Orléans (1750). His life, devoted to teaching and the administration of justice, was not marked by any important events; his considerable influence was exercised in his lectures and his works. Of an austere life, modest, disinterested, and profoundly religious, he was a characteristic representative of the legal profession under the old regime. His principal work was rather in arrangement of the texts of the Roman Law : "Pandectae Justinianeae in novum ordinem digestae," 3 vols. (Paris, 1748-52) several times re-edited, and published under the patronage of the Chancellor d'Aguesseau, who offered him a professorship after the appearance of the first volume. Having written in collaboration with Prevost de la Jannés and Jousse, a remarkable "Introduction à la coutume d'Orléans (Orléans, 1740), he published "Les Coutumes d'Orléans" (1760). He is especially known for a series of treatises on duties, sales, constitution of rents, exchange, hiring, leases, leasing of cattle, contracts of beneficence, contracts aleatory, contracts of marriage, the community, dowry, law of habitation, tenure of the estate, possession, and title; they were published between 1761 and 1772; all collected in his "Traités sur differentes matieres du droit civil" (Orléans, 1781). Other essays left in manuscript, principally on fiefs, successions, donations, civil and criminal procedure, were published between 1776 and 1778. All these works, in plain clear compilation, perfectly planned, were in the hands of the jurists who edited the new French Civil Code (Code Napoléon). As the editors took into account both the Roman and the common law, Pothier's writings were exceedingly useful for the purposes of the new codification which owed considerable to them, especially as regards questions of duties and contracts. See Thézard, "De l'influence des travaux de Pothier et du Chancelier d'Aguesseau sur le droit civil moderne" (Paris, 1866). Pothier's most interesting work, from a religious point of view, is his "Traité du contrat de mariage," in which he exposes in all their fullness the current Gallican doctrines. According to French lawyers, not only is the marriage contract distinct front the sacrament, and becomes such only through the nuptial benediction, but it is subject to the authority of princes, who can legislate on the marriages of their subjects, remove obstacles, and regulate the formalities; thus marriages of minors contracted without the consent of their parents are declared null and void. Further, marriage matters, not alone of separation or divorce, but of nullification, pertain to the secular tribunals. In this way he was a forerunner of the secularization of marriage, and the establishment of civil marriage (Esmein, "Le mariage en droit canonique" Paris, 1891, I, 33 sq.).


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