Abstract
From an early stage in the development of Roman society, the term ius (plural, iura) signified that which is due in human relations—the rightful power of a community member to act in a certain manner vis-à-vis his fellow citizens. It referred to a course of conduct that the community would take for granted and in that sense endorse. The community had a general awareness of the circumstances when acts would be construed as iura and these were established by custom. Originally, the exercise of ius had no connection with state organization and thus ius was defined as any instance of approved self-help. After the consolidation of the state and the establishment of a formal system of justice, ius denoted the rules or norms capable of enforcement with the consent of those responsible for safeguarding and maintaining the norms governing community life. Thus the holders of imperium had the essential functions of pronouncing the ius and assisting those with rights to obtain their entitlements through formal channels. The earliest form of legal procedure was the act whereby a person who possessed or claimed a ius against another requested a jurisdictional magistrate to both confirm his ius and enable its exercise by effectively suppressing an opponent’s resistance. Roman law developed primarily as a private law that was devised as a system of rights or claims bolstered by causes of action and specific procedural remedies.
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- 1.
Thus, ius was defined by jurists of the classical era as ‘the art of good and equitable’ (Celsus: D. 1. 1. 1.), and as that which is always ‘just and fair’ (Paulus: D. 1. 1. 11.). According to Ulpianus, ius requires living honestly, harming no one and giving each one his due’ (D. 1. 1. 10. 1; see also Inst 1. 1. 3.). The connection between law and justice is also reflected in Ulpianus' definition of jurisprudence as ‘the knowledge of things divine and human, and of what is just and unjust’ (D. 1. 1. 10. 2; see also Inst 1. 1. 1.).
- 2.
This meaning of ius is better conveyed in English by the word ‘right’ as a noun.
- 3.
See Inst 1. 1. 4: “Public law is that which regards the state of Rome; private law is that which concerns the well-being of individuals.” And see D. 1. 1. 1. 2.
- 4.
Inst 1. 2. 12.
- 5.
G. 1. 8.
- 6.
According to the jurist Paulus, “there are three positions a man may have: liberty, citizenship and family status.” D. 4. 5. 11.
- 7.
Although Roman law also knew and recognized non-human subjects of rights and duties, such as municipalities and private bodies, these were not regarded as personae and fell outside the scope of the law of persons.
- 8.
Under certain circumstances, an unborn child was regarded as already born. This is known as the ‘nasciturus fiction’, and was usually applied where it would have been to the advantage of the unborn child to have been born at the relevant stage.
- 9.
G. 1. 9; Inst 1. 3 pr; D. 1. 5. 3.
- 10.
Inst 1. 3. 1.
- 11.
Slavery is defined as “an institution of the law of nations (ius gentium) whereby one man is, contrary to nature, subject to the dominion of another.” See Inst 1. 3. 2.
- 12.
By the end of the republican period, it is likely that more than one third of Italy’s entire population consisted of slaves.
- 13.
Educated slaves were often employed as instructors, clerks or physicians. On the estates an educated slave could become estate manager, work supervisor or book-keeper.
- 14.
The deep resentment felt by slaves against their Roman masters erupted in a series of large-scale slave revolts during the late second and early first centuries BC.
- 15.
Inst 1. 3. 4; D. 1. 5. 5. 1.
- 16.
Inst 1. 3. 4; D. 1. 5. 5. 1.
- 17.
G. 1. 52: “Slaves are in the power of their masters, a power recognized by the law of nations (ius gentium), for in all nations masters are invested with power of life and death over slaves; and (by the Roman law) the owner is entitled to everything acquired by the slave”. In the Principate era, legislation was enacted restricting the masters’ right to mistreat or arbitrarily slay their slaves. See G. 1. 53; D. 40. 8. 2; D. 48. 8. 11. 2; D. 1. 6. 2; D. 48. 8. 4. 2; C. Th. 9. 12. 1; Inst 1. 8. 2.
- 18.
An interesting element connected with the slave’s contractual capacity was the peculium, a form of private property comprised of assets such as a sum of money or an object granted by a master to his slave for the slave’s use, free disposal or use in commercial and other transactions. Although, the peculium theoretically remained the master’s property it was considered in the eyes of the community to belong to the slave himself.
- 19.
The freedperson retained a special legal relationship with their former master, now termed patron (patronus), in relation to whom he was referred to as libertus. A libertus was expected to behave toward his patron in a respectful manner (obsequium), and so he could not act to the detriment of the patron. He could not bring certain actions entailing infamy against the patron, and could bring other civil suits only with the consent of a magistrate. Moreover, he could not prosecute the patron for criminal offence (except for treason). The libertus could also be required to offer his patron munera, which were gifts on special occasions, and owed him various services (operae liberti) suitable to the status and age of the freedperson. See, e.g., D. 37. 15. 2; C. Th. 9. 6. 4; D. 38. 1. 7. 3; D. 37. 14. 6. 1; D. 38. 1. 16. 1. However, the relationship between the libertus and his patronus was not entirely one-sided, as it involved several factors that worked to the advantage of the freedperson. For instance, the patron was expected to provide for his freedperson if the latter was impoverished. Consider D. 37. 14. 5. 1.
- 20.
See D. 23. 2. 44 pr.
- 21.
During the early republican era, members of Latin communities in Italy, who were racially akin to the Romans, were granted some share in the rights of Roman citizenship and, up to the second century BC, received full citizenship on migration to Rome. The privileged status of these communities was referred to as ius Latii. Later, colonies were founded in Italy by Romans and Latins which were granted internal autonomy, but were subject to Roman foreign policy, to financial obligations to Rome and to military service in time of war. Although legally strangers (peregrini), the members of these communities enjoyed approximately the same rights as the old Latins, which included the right to acquire property in Rome (ius commercii), and the right to conclude marriages with Romans (ius conubii), when specifically granted. Moreover, they could obtain full citizenship through domicile in Rome. In the early imperial age, numerous individuals and also whole communities or even provinces were accorded the ius Latii. Reference should also be made here to the so-called ‘Iunian Latins’ (Latini Iuniani): slaves who had been manumitted informally or in a manner that was not recognized by the law. Under the lex Iunia of AD 19, such slaves became free but did not acquire full Roman citizenship, only Latin status without political rights – see G. 1. 22. More specifically, they enjoyed the right to acquire property, to enter into contracts, to adopt and to act as witnesses to civil law wills. However, they did not have the right to contract a Roman civil law marriage and also lacked testamentary capacity and the capacity to serve as guardians. When an Iunian Latin died, his property went to his patron just as if he had remained a slave. The status of Latini Iuniani was finally abolished during the reign of Justinian.
- 22.
The authority or marital power a man had in respect of his wife was referred to as manus. As a family member, a wife under the manus of her husband stood in the position of a daughter (filiae loco) with respect to him. On the other hand, if the marriage was without marital power (sine manu) the wife remained under the authority of her own paterfamilias or sui iuris.
- 23.
In the classical period, there was a rebuttable presumption that children conceived during a marriage were the legitimate children of the husband and thus in his potestas – see D. 2. 4. 5. Moreover, daughters-in-law married cum manu with sons in potestate were in the potestas of the paterfamilias. Illegitimate children were at all times regarded as persons sui iuris.
- 24.
More specifically, under the paterfamilias’ authority fell persons in mancipio, i.e. persons who had been under the authority of a certain paterfamilias and had subsequently been transferred by such paterfamilias to the authority of another person. The status of these persons was in many respects similar to that of slaves, although they retained certain rights.
- 25.
Such persons were referred to as agnati, in contradistinction to the blood relatives (cognati).
- 26.
Upon attaining full age, a filiusfamilias was accorded in public law the right to vote in the assemblies, stand for public office and serve in the army, but in private law he remained subject to his father’s potestas and hence had reduced proprietary capacity.
- 27.
G. 1. 127: “When a father dies, his sons and daughters always become sui iuris.” And see G. 1. 128: “Since one who for some crime loses Roman citizenship, it follows that his children cease to be in his potestas exactly as if he had died; for it is against principle that a man of foreign status should exercise paternal power over a Roman citizen.”
- 28.
The institution of adoption had great importance to the ancient Romans, especially the members of the upper classes concerned with the continuation of the family line, family name and cult of their ancestors. Two forms of adoption existed: adrogatio and adoptio. Adrogatio occurred when a sui iuris person was brought under the patriapotestas of another. The effect of the adrogatio was that all persons in the power of the adrogated person (adrogatus) as well as his property fell under the potestas of the adrogator (pater adrogans) as his new paterfamilias. Adoption in the form of adoptio transpired when a person alieni iuris, i.e. under the power of another, was transferred from the potestas of one pater to that of another. Although originally this form of adoption was not available in early Roman law, the interpretation of certain principles of the Law of the Twelve Tables and the old ius civile facilitated the establishment of adoptio. The transfer of the adoptee from one patria potestas to another broke his agnatic relationship with his old family and cancelled his right of succession in that family whilst establishing a new position as though he had been born into the adoptor’s family.
- 29.
Emancipation (emancipatio) was the most common method of terminating paternal power. Just as in the case of adoptio, it was derived from the rule of the Law of the Twelve Tables according to which a paterfamilias who sold his son three times lost his power over him. In the Principate age this method was effected as follows: the father sold his son by mancipatio three times (daughters and grandchildren only once) to a confidant who then granted the son his freedom on two occasions, whereupon he returned to his father’s potestas, and on the third transaction sold him back to the emancipating father (pater emancipans) who in turn freed the son or other dependant. The confidant could grant the son or other dependant his freedom, but this did not usually happen as in such a case the confidant would have acquired certain rights of succession and guardianship over the emancipated person (emancipatus) that were generally not intended by the parties involved – it was customary that only the emancipating father himself should be the possessor of such rights. Under Justinian emancipatio could be performed by a simple declaration of the parties before a competent official and registration of their agreement in the court register. See Inst 1. 12. 6; C. 8. 48. 6.
- 30.
In the time of Hadrian, a father who killed his son was stripped of citizenship and all its attendant rights, had his property confiscated and was exiled.
- 31.
Under Justinian, the selling of a child was allowed in the case of extreme poverty of the parents, but the child could redeem himself and become free by paying the buyer the price he had paid to his father.
- 32.
The paterfamilias retained only the right to chastise or inflict moderate and reasonable punishment on his dependants.
- 33.
The term caput primarily meant a person or human being. In a derivative sense the same term denoted an individual’s privileges as a free person, as a member of a family and as a holder of certain social and political rights. The term status referred to the position a person occupied in the community by virtue of his caput.
- 34.
D. 4. 5. 11.
- 35.
Under the Law of the Twelve Tables, an insolvent debtor was liable to the same penalty but the relevant rule was abolished in later times.
- 36.
This must be distinguished from relegation (relegatio), which denotes the exclusion of a person from residence in a particular territory and did not result in loss of citizenship.
- 37.
D. 23. 2. 1.
- 38.
D. 23. 1. 1 (Florentinus): “A betrothal is the mention and promise of a marriage to be celebrated hereafter.”
- 39.
See D. 23. 1. 4. Pr; D. 23. 1. 7. 1. Any penalty attached to the relevant agreement was void as “it was considered dishonest that marriage be enforced by the threat of a penalty.” See D. 45. 1. 134 pr.
- 40.
C. 5. 3. 15 (Constantine): “If the man or his parents are unwilling to consent to the marriage, whatever has been donated by him cannot be recovered if it has been delivered.” C. 5. 1. 5 (Leo and Anthemius): “A woman who is her own mistress is liable for double the amount of the betrothal gift [if she refuses to proceed with the marriage without a good cause].”
- 41.
G. 1. 110–115 b.
- 42.
This ancient form of marriage ceremony originated in the archaic period and was initially intended for the aristocracy.
- 43.
Coemptio probably had its origins in the real sale of the wife to the husband that took place in primitive times.
- 44.
According to Gaius, the trinoctium was an innovation of the Law of the Twelve Tables. This suggests that the legislation contained some express provision on the subject. Furthermore, it appears that the emphasis was on the avoidance of manus rather than on its acquisition and this indicates that, prior to the introduction of usus, the typical form of marriage was marriage with manus.
- 45.
Henceforth she was considered to be in the position of a daughter of her husband or his paterfamilias – G. 2. 139. On the death of her husband, she had the same rights of succession as a daughter.
- 46.
The sine manu marriage was probably in existence, even though uncommon, as early as the time of the Law of the Twelve Tables.
- 47.
Concubinage (concubinatus) was a lasting relationship between a man and a woman who lived together without being lawfully married. It bore a great resemblance to regular marriage and as such was not immediately rejected but viewed as an inferior kind of marriage. However, the growing influence of Christian values during the fourth century AD entailed the concubinatus falling into disrepute and the imposition of disincentives to these unions in the form of various restrictions placed by the state on the rights of children born out of such relationships (liberi naturales).
- 48.
During the later imperial age this prohibition gradually fell into disuse.
- 49.
The term matrimonium non iustum (or iniustum) denoted a marriage between two persons one or both of whom did not possess the right to contract a legal Roman marriage (ius conubii). Children born in a matrimonium iniustum were socially legitimate (and not stigmatized as spurii), but they were not in their father’s potestas nor agnatically related to their father. It should be noted, moreover, that the parties intending to form a matrimonium iniustum were not hindered by the authorities from forming such a union; they were only denied the effects of a lawful Roman marriage.
- 50.
See Inst 1. 10 pr; C. 5. 4. 24.
- 51.
G. 1. 59.
- 52.
G. 1. 61.
- 53.
G. 1. 62.
- 54.
See C. Th. 3. 12. 1.
- 55.
See G. 1. 58–61 and 63–64; Inst 1. 10. 1–9 and 12; D. 23. 2. 14 pr and 4.
- 56.
Emperor Justin permitted marriage of members of the senatorial class with retired actresses, so as to allow his nephew Justinian to marry Theodora, who was an ex-actress – C. 5. 4. 23. 1. Later, Justinian abolished the prohibition altogether – Nov 117. 6.
- 57.
C. 1. 9. 6; D. 23. 2. 63.
- 58.
See Inst 1. 10. 12.
- 59.
C. 5. 12. 14. The relevant property could be transferred before or after the conclusion of the marriage without any formality.
- 60.
If one of the parties lost citizenship (e.g. as a result of a capitis deminutio), a regular marriage (iustum matrimonium) either became an irregular marriage (matrimonium non iustum) or was terminated. Whether the marriage was to be dissolved or not was at the discretion of the party whose status remained unchanged. In Justinian’s reign, loss of citizenship did not result in the dissolution of marriage.
- 61.
Although no formalities were required for this declaration of separation (repudium), to provide certainty as to whether a divorce had actually taken place it was customary to send a letter of separation (libellus repudii).
- 62.
Consider, e.g., C. Th. 3. 16. 1.
- 63.
Nov 117. 10. This law was repealed by his successor, Justin II, in AD 566.
- 64.
See C. 5. 17. 10. 11: “We add the following to the causes specifically enumerated by reason of which repudiation can legally take place: namely, when a husband on account of natural impotence is unable to have coition with his wife for two consecutive years; …[when] the wife should by her own efforts produce an abortion; or if she should be so lascivious as to date, for the sake of debauchery, to bathe with other men”. Consider also Nov 117. 13, 14.
- 65.
In the classical period, the age of puberty was set at fourteen years for boys and twelve years for girls.
- 66.
This appointment usually occurred when the father foresaw that he would die before his children reached the age of puberty.
- 67.
These were persons related to each other in the paternal line and who were under the potestas of the same paterfamilias or who would have been if he were still alive.
- 68.
In the time of Justinian, preference was given to the nearest cognatic relatives (proximi cognati). The term cognatio (blood relationship) was used to denote persons related through females (cognati).
- 69.
For instance, if a ward had without his guardian’s approval agreed to sell part of his estate, he acquired a right to the price but could not enforce that right unless he delivered the property – a delivery which itself required the consent of the guardian. If the ward delivered the property in question without the guardian’s auctoritas, he could reclaim it. The other party, however, could never take the initiative to enforce the relevant agreement.
- 70.
An actio bonae fidei presented the judge with a greater latitude of discretion, allowing him to take into equitable consideration all facts relating to the case. When such an action was raised the judge was instructed to condemn the defendant to pay a sum equal to ‘what he ought to give or do in accordance with good faith’.
- 71.
D. 26. 10; C. 5. 43; Inst 1. 26; G. 1. 182. As the relevant crimen was a matter of public law, the accusatio suspecti tutoris could be instituted by any person.
- 72.
According to Gaius, the original reason for the establishment of this form of guardianship (tutela mulierum) was the perception that women could be easily manipulated due to their gender ‘weakness’ (infirmitas sexus), natural lack of judgment and intellectual limitations. See G. 1. 144; G. 1. 190.
- 73.
D. 4. 4. 13. 1.
- 74.
D. 4. 4. 1. 3. In the later imperial age there was a gradual blurring of the distinction between the curator and the tutor that culminated in the cura minorum almost completely assimilated to the tutela impuberum by the time of Justinian.
- 75.
The cura furiosi came into effect automatically at the manifestation of insanity.
- 76.
The father of the insane person could also appoint a curator by testament. The law of Justinian stipulated that the appointment of a curator, irrespective of the method employed, had to be confirmed by a magistrate. Inst 1. 23. 1.
- 77.
The Roman concept of res (thing) did not remain fixed but underwent considerable development as its use changed following the evolution of society and economic relations. In the primitive agricultural community of the archaic age, only things a person could perceive with his senses, touch, hold and use were of interest (in short, things that were of service to him). In this context, the term res denoted merely physical objects; that is, things that could be touched (quae tangi possunt), possessed and used by a person. During the later republican era, however, the evolving complexity of Roman society and economic life meant the notion that there exist things that cannot be touched gained ground. Under the influence of Greek philosophical thought, intangibles and abstract creations of the human mind began to be treated by the Roman jurists as res. The practical implication of this evolution was that not only physical objects, but also abstract things (e.g. a debt, a right of way) were regarded as res. Eventually everything of economic value or appraisable in money that could be part of a person’s estate (in short, all economic assets), whether corporeal or incorporeal, was regarded as res.
- 78.
G. 2. 2: “The principal division of things is into two classes: things subject to divine law and things subject to human law.”
- 79.
G. 2. 3; G. 2. 4; G. 2. 8. Any wrongful act towards res sanctae was punishable by death.
- 80.
Riverbanks were considered private but their use was public.
- 81.
There was some controversy as to whether the seashore below the high water mark was public or common to all. Members of the public had undefined rights of use and enjoyment of the seashore (e.g. they could erect shelters on it and had ownership over them as long as they remained standing), but this did not give them a permanent right to any part of the shore.
- 82.
The res universitatis may be said to constitute a sub-category of the res publicae.
- 83.
G. 2. 12–14. See also Inst 2. 2. 1–2: “Corporeal things are those which, by their nature, can be touched, such as land, a slave, a garment. …Incorporeal things, on the other hand, are such as cannot be touched but exist in law; for instance, an inheritance, usufruct and obligations.” It appears that, initially, only real rights were considered res incorporales; it was only at a late stage that personal rights were recognized as also being incorporeal things.
- 84.
Hence, res incorporales could not be acquired by prescription nor could they be conveyed by actual physical delivery (traditio).
- 85.
In later times, lands and buildings situated in certain districts in the provinces were regarded as res mancipi, provided that these districts had the ius italicum (‘Italic right’) and so could be considered Italian land.
- 86.
G. 2. 14a–16.
- 87.
Dominium derived from the verb domo, meaning to conquer. Ex iure Quiritium means ‘according to the law of the Quirites’. The term Quirites originally denoted the inhabitants of the Sabine town of Cures. Around the middle of the seventh century BC, the Romans and the Sabines merged to form a single nation and this nation was termed Populus Romanus Quiritium. The words Romanus and Quiritium finally came to be used interchangeably and thus ownership by Roman title was referred to as dominium ex iure Quiritium.
- 88.
In the archaic period, ownership was probably only one of the aspects of the control of the paterfamilias over persons and property assets falling under his potestas. It existed as the only real right, given that possession in the sense of actual physical control over a thing was not clearly distinguished from ownership; lesser real rights, such as servitudes and usufruct, were viewed as ‘partial’ ownership. Moreover, it is possible that private ownership as such, especially with respect to immovable property, did not exist at all in the earliest period of Roman history but that ownership was vested collectively in the members of a clan (gens).
- 89.
G. 2. 65; Inst 2. 1. 11; D. 41. 1. 1.
- 90.
D. 50. 17. 54.
- 91.
Consider D. 41. 1. 20 pr: “Delivery ought not to transfer, and cannot transfer, to him who receives more than belongs to the person who delivers. If, therefore, anyone had the ownership of a field, he transfers it by delivery, but if he had not, he transfers nothing to him who receives.”
- 92.
Hence Gaius calls mancipatio a fictitious sale (venditio imaginaria). See G. 1. 119. It should be noted that the transition from the real to the fictitious sale must have been gradual, although nothing is known about the stages leading to this development.
- 93.
This could happen if the transferor had not actually transferred ownership because he was not the owner of the property. In such a case, ownership did not pass, even if the mancipatio procedure was correctly employed.
- 94.
The institution of mancipatio became obsolete in the later imperial age and was an unknown legal relic in the time of Justinian.
- 95.
Although the in iure cessio still existed in classical law, it became obsolete in post-classical times and no longer existed in Justinian’s era.
- 96.
Justinian extended this period for movables to three years and for immovables to ten years where the original owner resided in the same area (inter praesentes) and to twenty years where the parties lived in different districts (inter absentes). C. 7. 31. 1. 2; Inst 2. 6 pr.
- 97.
Examples of such cause or title included purchase and sale, gift, dowry, legacy, discharge of a debt, inheritance and the like.
- 98.
G. 2. 43: “We may acquire by usucapio, provided that we have received the objects in good faith, believing the deliverer to be their owner.” Consider also G. 2. 93; Inst 2. 6 pr; D. 41. 3. 33. 1; D. 50. 16. 109.
- 99.
D. 41. 3. 4. 18; D. 41. 1. 48. 1.
- 100.
Constitutum possessorium was the converse of traditio brevi manu. This occurred, for example, when the person who sold a tract of land remained in possession of it because he had agreed with the buyer that he would continue in occupation as a tenant. Once again, the bare will (nuda voluntas) of the parties was sufficient to transfer ownership.
- 101.
This happened, for example, when an agreement for the transfer of ownership over an object was recorded in a document that was later handed over to the transferee as a symbol of the object he acquired.
- 102.
The jurist Paulus defines thesaurus as “an ancient deposit of money, of which no memory exists, so that it has no present owner.” See D. 41. 1. 31. 1. This definition appears to be too narrow, however, as a treasure is not confined to only money. In a constitution of Emperors Leo and Zeno (AD 474) a treasure is defined as “movables hidden long ago by unknown owners.” See C. 10. 15.
- 103.
Inst 2. 1. 39.
- 104.
The two schools also held different views on the question of what constituted a nova species or new thing. The Sabinians followed the Stoic philosophy that accorded priority to matter, whilst the Proculians adopted an Aristotelian approach in giving the primacy to form or essence.
- 105.
Initially, the transferee’s position during the period of usucapio was not protected, but the praetor intervened by granting him the actio Publiciana and the exceptio rei venditae et traditae. The former action was an action in rem by means of which the transferee could reclaim possession during the period of usucapio from whoever may have held it without lawful title, irrespective of whether or not such person was bona fide. The action was based on the fiction that the period required for obtaining the property by usucapio was completed. See G. 4. 36. If the original owner endeavoured to claim the property from the transferee during the period of usucapio, the transferee could raise the defence of exceptio rei venditae et traditae – a special defence based on the claim that the property at issue had been sold and delivered to him. Consider D. 21. 3. 3. By these devices the holder of the property obtained complete protection during the period of the usucapio and had all the practical benefits associated with ownership.
- 106.
G. 4. 37: “If a foreigner sues or is sued on a cause for which an action has been established by our laws, there is a fiction that he is a Roman citizen, provided that it is equitable that the action should be extended to a foreigner.”
- 107.
D. 43. 27. If the tree owner did not obey the interdictal order, the landowner concerned could cut the branches himself and retain the wood.
- 108.
D. 43. 28.
- 109.
D. 39. 3. 1 pr.
- 110.
Such security was given by means of a stipulation, a formal agreement creating a legal tie between the two parties. In early times, the person concerned could employ the actio damni infecti that existed as a remedy probably directed at the payment of a penalty.
- 111.
A servitude was considered to be an incorporeal thing (res incorporalis). See G. 2. 14.
- 112.
If the owner of the property in which the servitude was vested died and the ownership of the property devolved on the heir, or if the owner transferred the ownership of the property in question, this did not affect the relevant right in any way and the servitude holder could enforce his right against the new owner.
- 113.
The relevant rule was expressed as follows: “the nature of servitudes is not such that someone has to do something, but that he has to permit something or refrain from doing something.” See D. 8. 1. 15. 1.
- 114.
Inst 2. 4 pr: “Usufruct is the right of using, and taking the fruits of things belonging to others, so long as the substance of the things used remains. It is a right over a corporeal thing, and if this thing perish, the usufruct itself necessarily perishes also.” And see D. 7. 1. 1 & 2.
- 115.
The counterpart of this action was the actio fiduciae contraria, which the creditor could institute against the debtor for the recovery of any necessary expenses he had incurred in respect of the property in question.
- 116.
Inst 4. 6. 7.
- 117.
Obviously, the relevant thing had to be res in commercio.
- 118.
The notion that an existing possessory situation must be protected for the time being is expressed by the maxim “Qualiscumque enim possessor hoc ipso quod possessor est, plus iuris habet quam ille qui non possidet”: “He who has possession has by virtue of his being a possessor a greater right than somebody who does not possess.” D. 43. 17. 2.
- 119.
G. 4. 143.
- 120.
D. 43. 17. 1 pr.
- 121.
See on this matter D. 43. 31. 1; G. 4. 150 & 160.
- 122.
According to a well-known definition found in the Institutes of Justinian, “an obligation is a legal bond whereby we are bound as of a necessity to perform something according to the laws of our state.” See Inst 3. 13 pr. Consider also D. 44. 7. 3 pr (Paulus libro secundo institutionum): “The essence of obligations does not consist in giving us ownership of something or entitling us to a servitude, but in binding a person to us to give, do or perform something.” As Paulus’s statement indicates, although an obligation is a res incorporalis and thus belongs to the Law of Things, it invokes a ius in personam, i.e., a right available against a specific person, rather than a ius in rem, i.e., a right available against any person or, as it is sometimes said, against the entire world. Further, it should be noted that Justinian’s (post-classical) definition of obligation is too broad, as it seems to encompass all rights in personam. However, obligation in Roman law pertained only to rights in personam that could be assessed in monetary terms or belonging to the sphere of proprietary rights. It did not pertain to rights stemming from family relations, or rights created by public law.
- 123.
G. 3. 88.
- 124.
D. 44. 7. 1 pr (Gaius libro secundo aureorum).
- 125.
Inst 3. 13. 2.
- 126.
Inst 3. 13. 1; D. 44. 7. 25. 2.
- 127.
G. 3. 89; Inst 3. 13. 2; consider also D. 44. 7. 1. 1; D. 46. 1. 8. 1. It should be noted that this classification is primarily a classification of obligations rather than of contracts. However, it is commonly applied to the agreements from which the obligations arise, hence the fourfold division of contracts into re, verbis, litteris and consensu.
- 128.
These are referred to as ‘res fungibiles’: generic things specified according to type or things belonging to a class where all the members thereof are sufficiently similar to be freely interchangeable. In the context of mutuum, the rule genera non pereunt meant that performance could never become impossible. See G. 3. 90.
- 129.
See Inst 3. 14 pr; G. 3. 90; D. 12. 1. 2 pr-4; D. 44. 7. 1. 2–4.
- 130.
See relevant discussion under verbal contracts below.
- 131.
This enactment did not dictate that such a loan would be automatically null and void, but gave the exceptio senatus consulti Macedoniani against the action of the lender.
- 132.
Consider in general D. 13. 6; C. 4. 23.
- 133.
D. 16. 3; C. 4. 34. The depositum had to be gratuitous; if there was any remuneration the contract was designated as one of letting and hiring (locatio et conductio). See D. 16. 3. 1. 8–10.
- 134.
The term depositum necessarium does not occur in classical literature.
- 135.
Inst 4. 6. 17; Inst 4. 6. 26; D. 16. 3. 1. 1–4.
- 136.
Inst 3. 14. 4. And see D. 13. 7. 9. 5; D. 44. 7. 1. 6.
- 137.
See Inst 3. 15 pr-1. Originally, the verb spondere (which suggests a sacred origin) had to be used; but in later times other and less formal verbs of promise could also be employed.
- 138.
If the parties entered into a transaction from which they desired reciprocal obligations to arise, they could employ more than one stipulation to cover each performance separately. For example, where the parties wished to purchase and sell something, the seller would stipulate the price the buyer had to pay and the buyer would stipulate that the seller had to deliver the thing purchased.
- 139.
Inst 3. 15 pr;G. 4. 136.
- 140.
Where the parties wished to purchase and sell something, the seller would stipulate the price the buyer had to pay and the buyer would stipulate the seller had to deliver the thing purchased.
- 141.
In the classical era the relevant question was idem fide tua esse iubes? (do you pledge your faith for the same?) – to which the person who was to stand as surety replied with iubeo. G. 3. 116; D. 45. 1. 75. 6. And see D. 46. 1. 8 pr. However, in Justinian’s time the use of formal words was no longer required and the relevant contract was reduced to writing for evidentiary purposes. Consider Inst 3. 20. 8.; D. 45. 1. 30.
- 142.
This method was abolished by an imperial constitution of AD 428, which allowed the creation of a dowry by informal agreement.
- 143.
G. 3. 128, 130.
- 144.
Where the previous claim was based on a negotium bonae fidei, this gave the creditor the advantage of a claim based on a stricti iuris contract and pursuable by means of the actio certae pecuniae.
- 145.
If an acknowledgment of debt had been obtained by fraudulent means, the alleged debtor could raise the defence that although he had signed the acknowledgement, the money was never paid to him (exceptio non numeratae pecuniae).
- 146.
The compilers of Justinian’s Institutes invoke reference to what they claim to be a new literal contract. It is said that if a person acknowledges in writing that he received money when in fact he did not and two years pass, then if he is sued he cannot rely on the defence that he never received the money (exceptio non numeratae pecuniae). This is not really a contractus litteris but amounts to saying that if a person writes that he has borrowed money, then after a period of time he is precluded from denying that he took the loan.
- 147.
Inst 3. 22. 1: “The obligation is said to be contracted consensually because [the forms] do not require writing or the presence of the parties nor is it necessary for something to be delivered in order that the obligation should have substance; it is enough that those engaged in the transaction are in agreement.” And see G. 3. 135 – 7; D. 44. 7. 2.
- 148.
Inst 3. 23 pr; G. 3. 139.
- 149.
Not only things already in existence at the time of conclusion of the contract but also future things (res futurae), for instance a growing crop, could be sold. If the relevant transaction was construed as a purchase of a hoped for object (emptio rei speratae), then the contract came into effect only if the thing came into being; if, on the other hand, it was interpreted as purchase of a hope (emptio spei), then the expectation was what was bought and the contract was deemed valid even if no thing finally came into being.
- 150.
No valid contract of sale was concluded if the price was expressed as ‘at a reasonable price’, or if it was to be fixed by one of the parties. However, there was a sale if the price was ascertainable by reference, for example, to the price of another property or the rate fixed in the market on a particular day. See D. 18. 1. 7. 1.
- 151.
This was the Proculian view, which finally prevailed and which was adopted by Justinian. The Sabinians, on the other hand, had wished to extend the contract of sale to cover the legally inadequate rules of barter or exchange of one object for another (permutatio rerum).
- 152.
D. 19. 2. 22. 3; D. 4. 4. 16. 4. Even where the purchase price was inadequate or excessive, the contract of sale was valid and binding unless there was a question of fraud (dolus malus), in which case the aggrieved party could institute an action (actio doli) against the defrauder.
- 153.
C. 4. 44. 2; C. 4. 44. 8. It appears that the laesio enormis rule applied mainly to land.
- 154.
Under the law of Justinian delivery of the thing did not transfer ownership upon the buyer unless the full price had been paid or security had been provided for payment thereof. D. 18. 1. 19; Inst 2. 1. 41.
- 155.
With respect to both actions the seller’s liability was strict: it arose from the mere presence of the latent defects, while the knowledge or ignorance of the seller was irrelevant. If the seller knew of the defect in the thing sold and did not disclose this information to the buyer, or if he made fraudulent declarations about the thing with a view to inducing the buyer to purchase it, he could be held liable by the buyer with the actio empti for damages.
- 156.
It should be noted that the relevant guarantee could be excluded by agreement, although the seller might still be liable for bad faith.
- 157.
A special form of societas alicuius negotiationis was the so-called societas vectigalis: a partnership directed at the collection of taxes. Those who formed this partnership entered into an agreement with the state in terms of which they became tax-farmers (publicani). Under this agreement they were entitled to collect taxes and keep these taxes for themselves, and in return paid the state the agreed price. Similar rules governed other partnerships contracting with the state, e.g. for the exploitation of mines and quarries. Partnerships engaged in the collection of public revenues were generally referred to as societates publicanorum.
- 158.
If a partner suffered loss or damage as a result of another partner’s fraudulent action, he could institute the actio pro socio against him for damages. The same action could be launched by one or more of the partners against a partner who failed to comply with his obligations as prescribed in the partnership agreement. In such case, the action pursued damages as well as the adjustment of benefits and liabilities arising from the partnership’s activities. A partner condemned in the actio pro socio underwent loss of honour (infamia), since he was regarded as having betrayed the trust placed upon him.
- 159.
An exception to this rule appears to have been the societates publicanorum, i.e. partnerships concerned with the collection of public revenues. The rules governing such partnerships gave them more permanence and stability as well as facilitating them to operate independently of the fate of individual partners. The reasoning was probably linked to the important role the societates publicanorum played in the field of public finances.
- 160.
However, a partner had to fulfil his existing obligations towards the partnership prior to his withdrawal as otherwise his action could be considered fraudulent. If a partner renounced fraudulently (dolo malo) or at a bad time for the business, the other partners could hold him liable for damages with the actio pro socio.
- 161.
When a partner died, his rights and liabilities under the contract descended to his heirs, but the partnership was dissolved for all. In such a case the surviving partners might continue without the deceased or admit his heir or another person into the business, but in either case it would be a new partnership.
- 162.
According to the jurist Ulpianus, partnership is dissolved (i) by causes connected with the person (ex personis); (ii) by causes connected with its object (ex rebus); (iii) by an act of will (ex voluntate); and (iv) by a juridical act (ex actione). See D. 17. 2. 63. 10.
- 163.
The gratuitous nature of mandatum is explained on the grounds that the mandatary essentially performed a favour for a friend and, according to the moral code of the Romans, it was his duty to help friends free of charge. In the course of time it became an accepted practice to pay the mandatary a fee (honorarium or salarium) for his selfless service, and this was not considered contrary to the spirit of the mandate.
- 164.
Such agreements were often made with second-hand dealers who retained the profit when they sold the items they received at a higher price. It was difficult to identify whether the relevant transaction was a sale, or locatio conductio operarum, or locatio conductio operis, or mandate.
- 165.
An actio in factum was an ad hoc action granted on equitable grounds to an aggrieved person where neither the ius civile nor the ius honorarium offered a satisfactory solution.
- 166.
Inst 3. 27 pr: “Let us also examine those obligations which, properly speaking, cannot be said to arise from contract but which, since they do not derive their existence from delict, are treated as arising quasi-contractually.”
- 167.
Here the relationship between the parties was broadly speaking analogous to mandate, but differed in the aspect that there was no agreement between the parties.
- 168.
Thus such transaction could not be established if the gestor intended to render a gratuitous service.
- 169.
It should be noted that expenses incurred by the gestor in undertakings that placed an unwanted burden on the dominus could not be recovered. For example, if the gestor repaired a building that the owner had abandoned because he could not afford the expense, the gestor could not claim compensation. Further, it should be noted that the question of expenses was determined by reference to the state of things at the time of the service. Thus, for example, money spent for the treatment of a sick animal could be recovered even if the animal died thereafter.
- 170.
Payment (solutio) embraced any performance whereby one person had been enriched at the expense of another. Such performance must have been undue (indebitum) either by civil law or by natural law.
- 171.
The mistake must have been reasonable in the circumstances.
- 172.
According to the jurist Paulus: “Theft is the fraudulent handling of anything with the intention of profiting by it; which applies either to the article itself or to its use or possession”. See D. 47. 2. 1. 3. In primitive Roman law furtum probably referred only to the act of removal of an object (it also included the removal of a person under the potestas of another – see G. 3. 199).
- 173.
The Law of the Twelve Tables provided that a person in whose house a stolen object was detected through a ritual search (quaestio lance et licio) was to be regarded as a manifest thief. If stolen goods were found on someone’s property without such a formal search, he was liable for a threefold penalty whether he was the thief or not (furtum conceptum), although in his turn he could bring an action for the same amount against the person who placed them there. Furthermore, the praetor granted an action for a fourfold penalty where a search was refused.
- 174.
See Inst 4. 2 pr: “A person who seizes another’s property is certainly liable for theft … However, as a special remedy for this offence the praetor has introduced the action for robbery, or the action for things seized by force, which may be brought within a year for four times the value, after a year for simple damages…”
- 175.
Under the law of Justinian, the action for robbery became a mixed action aimed not only at punishing the wrongdoer but also at recovering the pecuniary loss in one claim. This in practice reduced the punishment to three times the value of the stolen property and the real actions were thus excluded.
- 176.
Prior to the enactment of this law, the Law of the Twelve Tables and other leges provided remedies for several instances of wrongful damage to property. All these specific delicts were superseded by the lex Aquilia, which introduced a uniform delict of wrongful damage to property.
- 177.
This category of animals encompassed animals normally living in a herd, such as sheep, oxen, horses, mules, donkeys and goats, and later expanded to include pigs and camels. Dogs and wild animals were excluded.
- 178.
Inst 4. 3 pr. And see G. 3. 210; D. 9. 2. 2 pr.
- 179.
An actio in factum was an ‘ad hoc’ action granted on equitable grounds to a person who suffered injury in circumstances not covered by existing law. When such an action was allowed, the actual facts of the case were incorporated into a new formula (formula in factum concepta). An actio utilis was devised by the praetor to deal with a case which was not covered by the existing law but which was analogous to another case with an available legal remedy. However, there was probably no difference in practice between these actions. Indeed, many examples can be found in the sources in which the actio utilis and actio in factum seem to have been used interchangeably.
- 180.
Examples of such offences included assault and battery, defamation, trespass, public abuse against another, malicious prosecution, the exercise of a servitude without a claim of right, the violation of the chastity of a woman or child, threatening, throwing rubbish on a neighbour’s property, causing nuisance with water or smoke, and making a false announcement that someone owes one a debt.
- 181.
Such defences included self-defence, the lawful exercise of disciplinary authority, mistake, incapacity, and acting in jest or joviality.
- 182.
The actio doli was introduced by the praetor and jurist Aquilius Gallus in c. 66 BC.
- 183.
If, for example, a slave committed theft, the actio furti noxalis could be instituted against the slave’s master.
- 184.
If the damage was caused by a wild animal, the actio de pauperie did not apply as it was considered to be in the nature of such an animal to cause damage. It should be noted, however, that the aedilician edict gave an action where a wild animal was kept near a public road and caused damage.
- 185.
If a freedman died intestate, in the first instance his sui heredes succeeded and failing them his patron.
- 186.
As a rule, this group included the brothers and sisters of the testator as well as his uncles and aunts.
- 187.
Blood relationship followed the male as well as the female line in contrast to agnatio, which followed only the male line.
- 188.
G. 2. 101: “Originally there were two kinds of wills: parties either made a will at the comitia calata, which were assembled twice a year for that purpose; or in the face of the enemy, that is to say when the testator took up arms for the purpose of making war, for the term [procinctus] refers to an army ready for battle. Hence, persons made one kind of a will in time of peace and tranquility, and another when about to go into battle.” And see Inst 2. 10. 1.
- 189.
On this form of will consider Inst 2. 10. 3 & 4; C. 6. 23. 29; Nov 119. 9.
- 190.
The legal capacity to create a will is referenced in later literature by the term testamenti factio activa. This is distinguished from the legal capacity to be instituted as heir in a will, referred to as testamenti factio passiva. The term testamenti factio relativa denotes the legal capacity to act as a witness to a will. It should be noted, however, that these terms do not appear in the Roman juridical sources.
- 191.
Under the lex Voconia (c. 169 BC), a woman could not be instituted as heir by a testator whose estate had a value greater than a fixed amount (probably 100,000 asses or sesterces). See G. 2. 274.
- 192.
Similarly, exceptions in favour of the state, municipalities, charitable institutions and other corporate bodies were gradually admitted. Thus, in Justinian’s time it was possible to institute the state, the Church and religious or charitable organizations as heir but private associations could only be instituted as heir by special licence. Evidence from the sources suggests that Justinian issued a constitution that finally abolished the general principle that a persona incerta could not inherit.
- 193.
The relevant formula was as follows: “Let my son Titius be my heir; if my son Titius shall not be my heir, or shall be my heir and die before he becomes his own master (i.e. before reaching puberty), then let Seius be heir.” See Inst 2. 16 pr.
- 194.
In D. 30. 116 pr, a legacy is defined as “a diminution of the inheritance whereby the testator directs that something that would otherwise form part of the estate going to the heir is to go to some other person.” See also Inst 2. 20. 1: “A legacy is a kind of gift left by a deceased person.” It is interesting to note that both Gaius and Justinian shared the opinion that the legacy did not fall within the field of the law of succession because it was not a form of acquisition of ownership of things per universitatem. Since, however, the topic of legacy was closely connected with testamentary succession, they felt that they could deal with it as a sub-division of the law of succession. See G. 2. 191 and Inst 2. 20 pr.
- 195.
G. 2. 192.
- 196.
Originally this was probably a pontiff, then the consul and from 367 BC the praetor. From 242 BC cases involving disputes between foreigners, or between foreigners and Roman citizens, were assigned to the praetor peregrinus.
- 197.
The judge was a private citizen chosen by the parties from the official list of judges (album iudicum selectorum).
- 198.
Five different types of legis actiones are mentioned in the sources: the legis actio sacramento; the legis actio per iudicis arbitrive postulationem; the legis actio per condictionem; the legis actio per manus iniectionem; and the legis actio per pignoris capionem (see G. 4. 12–29). The first three were applied to resolve a dispute, whilst the last two were used to enforce the execution of a judgment.
- 199.
This is illustrated by a case reported by the jurist Gaius where a man sued another for chopping down his vines. The aggrieved party lost his suit because he used the words ‘vines’ (vites) instead of ‘trees’ (arbores) as prescribed by the Law of the Twelve Tables. See G. 4. 11.
- 200.
The vast majority of the actiones honorariae were praetorian creations, although several important actions were created by lesser magistrates such as the curule aediles. The actiones honorariae were distinguished from the actiones civiles, i.e. the actions originating from the ius civile.
- 201.
The per formulam procedure was abolished by an edict of Emperors Constantius and Constans in AD 342. See C. 2. 57. 1.
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Mousourakis, G. (2015). The Private Law. In: Roman Law and the Origins of the Civil Law Tradition. Springer, Cham. https://doi.org/10.1007/978-3-319-12268-7_3
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