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| is a legal term which signifies that two things are united in such a way that one is considered to become a component part of the other; one thing is considered the principal, and the other is considered to be an accession or addition to it. Sometimes it may be doubtful which is to be considered the principal thing and which the accession. But the owner of the principal thing, whichever it is, became the owner of the accession also. The most undisputed kind of accessio is that which arises from the union of a thing with the ground; and when the union between the ground and the thing is complete, the thing belongs to him who is the owner of the ground. Thus if a man builds on the ground of another man, the building belongs to the owner of the ground, unless it is a building of a moveable nature, as a tent; for the rule of law is "superficies solo cedit." A tree belonging to one man, if planted in the ground of another man, belongs to the owner of the ground as soon as it has taken root. The same rule applies to seeds and plants. |
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| not on the list but important to understand for the next three terms to make sense} (delivery) refers to the right of pursuing by judicial means (judicio) what is a man's due and the action itself. Praetorian law could introduce new categories of actions for other wrongs such as metus* (threats) and dolus* (deceit/fraud). |
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| basically defines the nature of the formula. An action given by the praetor on the facts of the case alone where no standard civil law action was applicable. The praetor might direct the judex barely to inquire as to the fact which was the only matter in issue; and on finding the fact, to make the proper condemnatio. A type of action the Praetor granted on an ad hoc basis to deal with claims of which the legal basis was not covered by the formula of the action. |
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| After the decline of the praetor's power, the actiones utiles were still extended by the contrivances of the juris prudentes and the rescripts of the emperors. Whenever an actio utilis was granted, it was framed on some analogy to a legally recognized right of action. The actio utilis were also actions based on a praetorian modification of an existing formula to cover a new situation. |
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| trickery or fraud}: the formula by which a person who had suffered loss through the bad faith of another could sue the latter. Aquillius held that bad faith existed when pretence was at variance with reality. |
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| allowed to an aggrieved party who had suffered loss as the result of duress. Also, a remedy for someone who had been forced by threats to enter into a legal transaction. |
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| was the reciprocal attitude of regarding each other as husband or wife. No formalities were legally necessary for the inception of a marriage: the usual ceremonies had social and sometimes religious significance. All that was legally necessary was for a man and woman to live together with the intention of forming a lasting union, hence affectio maritalis. |
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| agnates were relatives through the male line, descended from a common male ancestor without any artificial break in the line of relationship (such as emancipation). Persons of either sex may be agnates, but the line could only be transmitted through males. If the common male ancestor (pater familias*) was alive, the agnates were all in his patria potestas*. Agnatic relations existed through adoption as fully as through blood. |
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| manifested by overt acts, the established intent to steal. Felonius or fraudulent intent may be analyzed as follows: firstly there must be an intention as to the disposal of the thing taken, which may be called the intention of deprival and appropriation, and which seems to be identical in character with the actual or implied intention which enters into civil conversion. Secondly this intention must be wrongful in the sense that there must a knowledge that the deprival and appropriation will be a deprival of the owner against his will, and in the sense that there must not be a real claim of right. Important to note that profit is not taken into consideration, and for that reason was later changed into contrectatio. |
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| a contract of exchange or barter was called a permutatio. Proculian view prevailed that an exchange of goods could not amount to a sale. Justinian followed that view, regarding barter as an innominate contract. However, many of the rules of sale applied to barter, e.g. the rules on compensation for defective goods. The major difference between barter and sale, apart from the necessity for money to constitute at least part of the price in sale, was that there was a duty to pass ownership in barter. It followed that a transferee could sue for any defect in the title before he was evicted by the rightful owner, unlike the case with sale. Another difference was that the obligations in barter arose only when one party had performed, and not on mere agreement (as was the case in sale). (more info. on top of page 309, Roman Law text) |
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| actions of good faith" granted by the praetor for certain contractual relationships in which the iudex was required to take account of what ought to be done or given in good faith by the parties. Defenses (exceptiones*) could be raised by the court even when not pled by the defendant. bona fides implies the absence of all fraud and unfair dealing or acting. In this sense, bona fides, that is, the absence of all fraud, whether the fraud consists in simulation or dissimulation, is a necessary ingredient in all contracts. Bona fide possidere applies to him who has acquired the possession of a thing under a good title, as he supposes. He who possessed a thing bona fide, had the capacity of acquiring the ownership by usucapion*, and had the protection of the actio Publiciana. Thus a person who received a thing either mancipi*, or nec mancipi, not from the owner, but from a person whom he believed to be the owner, could acquire the ownership by usucapion. All bona fidie transactions were bilateral (contrast to stricti iuris*). They technically could have been unilateral but very frequently were. They could apply to obligations in rem or in personam. A person could not barter here because there is no buyer or seller. |
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(the source of the obligation)cause/reason/foundation in law/circumstance. Causa was the reason an agreement was actionable. It was also used to denote a court case e.g. the famous causa curiana. It was the reason for some juridical measures given to a praetor- actions, exceptions and interdicts. It is also the purpose for which an action is brought upon a person. In this way, it is comparable to animus* or subjective motive/ intention. May require a specific denotation in cases like traditio*, uscapio* and manumission*. Scholars have rightly observed that it is one of the vaguest terms in Roman legal language. Can be broken down into four main sources:
I. Contract*: enforceable at law. In contracts re (things) the causa was the delivery on the thing. Became important for sales and transactions because it recognized the agreement as actionable. It could also imply the motive for a transaction. It is an essential element in contracts in modern systems.
II. Delict: Loss or damage done to a private party by another party; requires compensation, more punitive than tort (tort is usually only compensation). Standards for compensation were either strict liability or negligence.
III. Quasi-contract-
negotiorum gestio: conducting another’s personal affairs without their authorization. No contract needed cuz there is no direct agreement, but the law treats it as if there were.
condictio indebiti: unjustified enrichment, recovery of a thing not owed. ie a person pays or gives something to another person believing wrongly that the debt or transfer was owed. This is a part of modern legal systems as “sans cause”.
common ownership: resulted from agreements or absense of agreement (ie gift or inheritance) in which the owners had certain duties between them.
IV. Quasi-delict-when the facts of the case dont resemble a delict but produce injuries to a party.
a) a judge’s ruling harms the defendant.
b) someone pours/ throws something of yours out
c) someone puts something in a public way to the common danger of all
d)shipowners, stable owners and inn keepers are liable for their employees actions of delict
e)same with owner’s of slaves |
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| the mixing of liquids when each liquid belongs to a separate owner. The new product belongs to both. If one person intentionally does this to the detriment of the product it becomes his, but he must pay the other person the value lost. Important for accessio* because confusio comes into importance when the mixed things cannot be separated. For confusio only, one cannot tell which the the principal or accessory thing. The resulting mix was owned in proportion to each parties respective share unless agreed otherwise. As regards accessio, the owner of the principal thing became owner of the whole thing. Can relate to specificatio* also. |
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always voluntary and private. Third parties have no say in them. They had to have consensus from both parties. Mistakes here include error in negotio (mistaken transaction), error in corpore (mistaken subject matter), error in persona (mistaken identity), error in substantia (mistaken subject matter). Parties had to have the capacity to make one. Contracts of corporeal things could be mutuum* (loan for a fungible, stricti iuris), commodatum (like a usufruct i think, bona fidie), despositum (movable given to someone else to keep safe, bona fidei) and pignus ( a pledge, transfer of property as security by borrower to lender, like a mortgage, bona fidei). These last three have had a significant influence on modern English law.
Stricti iuris* contracts do not give consideration to bad/ good faith* and originated from the ius civile. Verbal contracts are stipulatio* (single contract)- a face to face formal exchange of words. These are unilateral only. Stipulatio can also lead to actio ex stipulatio (suing a person who did not follow through with an obligation), exceptio doli (one side blatantly cheats or manipulates the contract) ad exceptio metus (duress). Contracts are enforcable unless vis maior (act of god, overhwleming force).
On the other hand there was a saying “nudumpactum non parit obligationem” meaning a naked agreement doesn’t necessarily make a contract. The response to this could be “sed parit exceptionem”- but it does make an exception.
Bona fidei contracts rely on good faith. They arose from the ius honorarium. They can be divided into sale (mancipitio or stipulatio), hire, partnership and mandate. They were distinctly commercial. Important for peregrine relations. You could exchange rings, shake hands or give arra (earnest money) to show devotion to the agreement. You could sell/ buy almost anything, unless it was private, sacred or common property. The seller had to act for care of the thing until delivery, when ownership was transfered. Actio empti could be brought in case of a breach of seller duties. |
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| laying hands on another’s thing with intent to take or misuse (dolus*). Essentially theft (furtum*). Important because it implies intent. the requirement of theft (furtum) that there should have been a form of wrongful handling of the object either by transferring it to a different location or by unlawfully retaining an object already in your possession. This is a requirement for theft. Contrectatio has to involve a profit made from the theft, which distinguishes it from animus furandi. This also distinguishes it from loss alone. Significance: This definition of theft is messy compared to the American concept of theft. |
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Power of a roman citizen to engage in a legal marriage, is important because it is essential for conumbium to exist for children to become roman citizens. The fact that such a distinction exists tells us the importance of citizenship in Rome. Relate to how Romans traced lineage through the status of the mother (only one you could be sure was family). In times of Augustus, Marriages were highly regulated.
Can be free marriage, where the wife stays under the control of her own father, or manus*- where the wife is subject to the potestas* of her husband. Marriage relationships have important implications for inheritance and citizenship. For example, under a manus marriage a wife is treated like a daughter in terms of inheritance if the husband dies. In a free marriage, gifts were prohibited between the husband and wife. The citizenship of the children was based on the citizenship of their parents. Peregrine children could not take the citizenship of their father as is usual.
Divorce is also important in this sense. Upon divorce, assets are divided to original owners (except for the dowry, which the man may chose to keep or exchange for its equal value). If the wife leaves for 3 nights, the marriage is ended in manus. Affectio* constitutes marriage, and therefore is needed to end it |
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| damage done to a body by a body under the lex Aquilia |
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| Compiled by Justinian I, the first three parts appeared between 529 and 535 and were the work of a commission of 17 jurists. The Corpus Juris was an attempt to systematize Roman law, to reduce it to order after over 1,000 years of development. The resulting work was more comprehensive, systematic, and thorough than any previous work of that nature. The four parts of the Corpus Juris are the Institutes (a general introduction to the work and a general survey of the whole field of Roman law) the Digest or Pandects (by far the most important part, intended for practitioners and judges and containing the law in concrete form); the Codex or Code( a collection of imperial legislation); and the Novels or Novellae (compilations of later imperial legislation issued between 535 and 565 but never officially collected). Because it was published in numerous editions, copies of this written body of Roman law survived the collapse of the Roman empire and avoided the fate of earlier legal texts—notably those of the great Roman jurist Gaius*. Jurists and scholars trained in this Roman law played a leading role in the creation of national legal systems throughout Europe, and the Corpus Juris Civilis thus became the ultimate model and inspiration for the legal system of virtually every continental European nation. |
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| the third chapter of the Lex Aquilia* contained three ‘harm-verbs’ to describe the actions which were covered by this provision. One of these ‘harm-verbs’, to smash (rumpere*) was extended by way of juristic interpretation to include all kinds of direct physical damage (corrumpere*). This was probably one of the earliest examples of the extension of the scope of this statute by way of juristic* interpretation.” |
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| Culpa in its most general juristical sense of any illegal act of commission or omission comprehends dolus* malus. But the special meaning of culpa is distinct from that of dolus malus. Dolus malus has reference to the evil design with which an act is accomplished to the injury of another; or it may be the evil design with which an act is omitted that ought to be done. It is sometimes considered that culpa in the special sense may be either an act of commission or omission; and that an act may fall short of dolus, as not coming within the above definition, but it may approach very near to dolus, and so become culpa dolo proxima. But the characteristic of culpa appears to be omission. It is true that the damnum* which is necessary to constitute culpa is often the consequence of some act; but the act derives its culpose character rather from something that is omitted than from what is done. Culpa then being characterised by an act of omission (negligentia*), or omissio diligentiae, the question always is, how far is the person charged with culpa bound to look after the interest of another, or to use diligentia. There is no such general obligation, but there is such obligation in particular cases |
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| Though this word occurs so frequently, it is not easy to fix its meaning. Crimen is often equivalent to accusatio (κατηγορία); but it frequently means an act which is legally punishable. In this latter sense there seems to be no exact definition of it by the Roman jurists. According to some modern writers, crimina are either public or private; but we have still to determine the notions of public and private. There was a want of precise terminology as to what, in common p369language, are called criminal offences among the Romans; and this defect appears in other systems of jurisprudence. Crimen has been also defined by modern writers to be that which iscapitalis, as murder, &c.; delictum, that which is a private injury (privata noxa); a distinction founded apparently on Dig. 21 tit. 1 s17 § |
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| “ a term used in the discussion of the Lex Aquilia* to refer to loss, quantifiable in money, suffered to property due to extrinsic circumstances. The term does not occur in Roman juristic language.” |
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| A delict can be broadly defined as a wrongful act that causes damages, and for which the victim in entitled to compensation. It’s similar to the modern idea of tort, but differs in that there is a strong penal element. Liability in delict generally depended on fault. Proof of fault depended on the delict: theft, for example, required proof of intent whereas negligance was required to prove wrongful damage of property. |
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| this institution, seemingly of customary origin, consisted of a promise by the paterfamilias* of the bride to deliver an amount of property to her husband upon marriage. Ownership of the dotal property passed to the husband (until the time of Justinian), but there was a moral duty to use the dowry to look after the wife and to maintain her standard of living. |
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| A type of Praetorian delict, namely fraud.The remedies for fraud were similar to those of duress. A defendant that’s a victim of fraud could claim exceptio doli against a fraudulent claim. A plaintiff could seek restitutio, and if that failed bring the actio doli. Because of the gravity of the allegation of actio doli, and it’s consequences, its use was restricted. It was only allowed in cases of serious and manifest deceit, and the plaintiff had to show he had no other remedy--it was brought only as a last resort. Certain categories of people could not be sued under actio doli, such as a child or freedman suing a parent or patron. Nor a man of lower rank suing a man of higher rank, such as a plebeian against a man of consular rank. But there were remedies for these people in the way of actio in factum. |
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| “this term, which acquired a technical meaning in the late Republic, described full Roman ownership in terms of the ius civile. This form of ownership was confined to Roman citizens and could only be exercised over movable property or land in Italy.” |
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one of the duties of the seller in a contract. Since the risk of loss passed to the buyer on the making of the contract, the seller had the duty to care for the property until delivery. The standard of care expected of the seller was that of the bonus paterfamilias*; hence, he was liable for even slight acts of negligence*. The seller was not liable for acts of vis maior, acts of god, overwhelming force.
a. Significance- The rule that the risk of loss passed to the buyer was really quite narrow in application--the buyer bore the loss only if the seller was blameless. Allowed the seller to take on some of the risk, made sure he was honest in his business dealings. |
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consensual contract of sale. Effected by mancipatio* or stipulatio*. There should be an agreement about the thing sold and the price. An agreement of wills was oral or in writing or by messenger. Gave arra (earnest money), made proof of agreement relatively straightforward (but not seen as necessary). Anything could be sold unless it was excluded from commercium. Prohibited things, things already belonging to the purchaser, non-existent things, perished things, future things, res aliena (another person’s property), generic things--all of these could not be sold. Agreement on the price was an essential of the contract of sale. The price had to consist of money, could add the performance of a service. Price had to be genuine, certain or at least ascertainable. Before the contract became perfect, the risk of loss lay with the seller. When it became perfect, it passed to the buyer. Seller’s duties: care for the property before deliver, to deliver it with vacant possesion, to warrant against eviction, and to warrant against defects. The actio empti was the main remedy for the buyer in the contract of sale for break of the seller’s duties. Duties of the buyer: pay the price and any interest, accept delivery of the property, reimburse the seller for expenses.
a. Significance- the most important of all Roman contracts. The form became tricky when Rome’s economic activity started to grow quickly. The separation of risk and ownership in the contract of sale was one of the more questionable doctrines of Roman civil law. |
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in the formulary system, it was a part of the formula. If a defendant wished to raise a specific defence, he would do so in a special clause, the exceptio, that would defeat the plaintiff if it was upheld. A simple denial of the facts did not require an exceptio. If the plaintiff wished to counter the exceptio, he could insert a replicatio--a set of facts which if proved, defeated the alleged defence. The defendant could plead a reply, if he had one, and so forth.Whichever was the last to be proved on the facts won the case.
a. Significance- arguing took place in the formula rather than in front of a praetor or a judge, saving time and allowing the praetor to focus his energies on more important things. This was also an improvement on the leges actiones, showing the growth of the Roman legal system. |
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this was opposed by the defendant sued for the fulfillment of an agreement and based on the allegation that the plaintiff had acted fraudulently. Fraud was similar in legal effect to duress. A party induced by fraud to enter a stricti iuris* contract had no defense or remedy as of right until the introduction of the exceptio doli in the late Republic. Thereafter, the exceptio doli provided a defence if specifically pleaded in the formula.
a. Significance- the introduction of this defence brought about a considerable extension of the judge’s equitable discretion, even in stricti iuris actions. Also allowed an action against fraud, finally. |
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Definition
the defense of duress. A contract was regarded as made under duress if a party had been threatened with serious evil. If a party made a stricti iuris* contract under duress, the contract was formally valid in early law. In the late Republic the exceptio metus was allowed against a party trying to enforce an agreement made under duress.
a. Significance- shows the growth of the Roman legal system because an exceptio was made to help prevent issues such as duress. |
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Definition
an exceptio based on an additional agreement between creditor and debtor which modified the original obligation, as, for instance, not to claim the debt in a judicial trial at all, or within a certain time.
a. Significance- allows for a creditor and debtor to sort things out on their own, saving time for the praetor and improving conditions for the debtor (unlike in the time of the 12 tables). |
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there were three constituent elements of status in Roman law- libertas*, civitas and familia*. He he had familia in that he belonged to a Roman household. The least change of status was the loss of family (like when a child was emancipated). Such a loss was not necessarily detrimental--just a change in status. the Roman family unit, which not only included the Paterfamilias*, but also his wife, children, dependants and slaves.
a. Significance- a person needed all three to have full status. Having full status was greatly coveted. |
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in the formulary system, during the preliminary hearing. It was a document containing the total program of litigation--all the questions of law and fact--and it was made up of a number of possible clauses. The plaintiff presented a draft formula containing the essentials of his claim, and asked for the action to be allowed on that basis. The defendant could suggest amendments--for example, in order to plead a specific defence. The praetor could make any changes that he thought were desirable. Occasionally, he might be tempted to allow a new formula, but he had to exercise his discretion carefully in case he was accused of departing from the published Edict. Had several components: nominatio- the appointment of the judge; intentio- the plaintiff’s statement of claim; condemnatio- directed the judge to condemn or absolve the defendent; demonstratio- statement of facts; exceptio*- a specific defense; praescriptio- limit the cause of action.
Significance- the creation of a formula saved time for the praetor and the iudex, as it specifically spelled out all of the arguments. It was more systematic, a significant departure from the leges actiones, showing the maturation of the Roman legal system. |
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Term
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| A fungible is a good that is easily exchanged for another good, and is therefore a secure commodity with a clear, definitive value. A fungible is NOT money, and is a good that may also be consumed through use, such as corn, oil, wine, and money. One thing can be replaced by another of the same quality since economically they exercise the same function. The distinction of a fungible’s genus (as opposed to species) is important when the thing due perishes. In the case of a species, the fulfillment of the obligation is impossible and the problem as to who is responsible becomes actual; in the case of a genus, the extinction of the obligation does not enter into consideration since things in genere can be replaced by others of the same quality and quantity unless they were specified by exact indications |
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| A theft detected when being committed. Some jurists extended the qualification “manifest theft” to cases lying beyond the catching of the thief in the very act. The opinions of the jurists varied as to the essential elements of the furtum (capture of the thief on the spot, capture on the day of the theft with the thing stolen being still in his possession, seizure of the thing thrown away by the thief pursued). The Twelve Tables considered a furtum manifestum when the thief was convicted through an investigation LANCE ET LICIO. Capital punishment for furtum manifestum, ordained in that legislation, was later commuted into fourfold penalty. Required mal intent (dolus*) to be theft. Outside of the Twelve Tables the punishment for for 5x damages. The damages were technically for 4x the cost, but the person would also have to pay the cost itself of the item back under condictio furtiva. |
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| One of the most renowned Roman jurists of the middle of the second century A.D. (born under Hadrian. His standard work, the Institutes. He wrote a series of works, including a commentary on the Twelve Tables and commentaries on the Edict of the praetor urbanus and the provincial edict. No other jurist commented on the provincial edict. Elementary work – RES COTTIDIANAE (aka Aurea) – some scholars consider it to be a postclassical compilation of excerpts from Gaius’ works. Mongraphs on legal institutions (on fideicommisa, on manumissions). Never cited by classical jurists. Later (AD 426) Gaius appeared among the jurists* whose opinions acquired official authority in the Law of Citations. Justinian contributed to his fame by utilizing his Institutes as a basic source for the imperial Institutiones and speaking of him w/great esteem. The INSTITUTES: an introductory textbook of legal institutions in four books (called “commentarii”) around AD 161. The system adopted by Gaius is tripartite: law of persons, law of things (including succession), and law of actions (civil procedure). Remains the foremost authority for many problems of classical law and primarily for the classical civil procedure. Has undergone recent “purification” tests. |
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| An heir, he “who enters in the rights and the place of the deceased” (D.29.2.37). “No one leaves to his heirs more rights than he had himself” (D.50.17.120). All advantages and disadvantages (charges, commoda et incommoda) resulting from the legal relations of the deceased are transferred to the heir. Hence he is liable for debts and duties of the defunct except those which are strictly personal and not transmissible to another person. Among the rights excluded from succession are, e.g. personal servitudes (usus, ususfructus). Possession (possessio*) as a mere factual situation does not pass to the heir until he obtains physical holding of the things involved. Obligations originating from wrongdoings (obligationes ex delicto*) are not binding on the heir, but he must return what he gained from such acts (the enrichment). Some contractual* relations (partnership, mandate) are extinguished by the death of one party |
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| heres suut et necessarius |
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Definition
| A person under the paternal power (or manus) of the deceased who after his death becomes SUI IURIS* (head of a family). If appointed as an heir in a testament or succeeding at intestacy he has no power to refuse the inheritance and becomes heir at once after the testator’s death whether he wishes or not. Such heirs are sons, daughters, and the widow of the deceased; grandsons and granddaughters are heredes sui only in the event that their father is dead or no longer under the paternal power of the deceased. The praetorian law granted the heredes sui et necessarii the right to refuse the acceptance of an insolvent inheritance |
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| A fictitious trial in the form of a rei vindicatio before the magistrate (in iure) the purpose of which was the transfer of the Quiritarian ownership. The plaintiff (the transferee) asserted that the thing was his (vindicare), the defendant (the transferor), interrogated by the praetor whether he wanted to make a countervindication (contra vindicare), remained silent or replied in the negative, whereupon the praetor assigned (addictio) the thing to the plaintiff. Thus the transfer was completed, w/out litis contestatio, or a procedure apud iudicem. The in iure cessio does no longer exist under Justinian. |
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| A wrongful act, unlawfulness. Generally speaking, iniuria is “all that has been done non iure, i.e. against the law (contra ius).” On damages done iniuria (unlawfully) to another’s property, domnum iniuria datum. Specifically, iniuria embraces particular crimes, both bodily injuries (iniuria re facta) as well as offenses against the good reputation of a person, as defined in the Twelve Tables, in the praetorian edict, in the Lex Cornelia de iniuriis, and later in imperial constitutions. It was in particular the praetorian law which efficiently defended the honor of a Roman citizen against defamation by according a special action, actio iniuriarum. Iniuria was a private crime (delictum*), prosecuted only at the request of the offended person. “There is no iniuria done to those who wished it (to be done).” Penalties varied in the course of time from pecuniary reparation (fixed fines in the Twelve Tables) – the amount of which was set by the judge, who had great discretion in estimating the damage done to the reputation and the social rank and respectability of the individual injured – to more severe penalties, such as flogging, scourging, exile, according to the gravity of the injury and the social status of the culprit. In the actio iniuriarum the plaintiff made his own assessment of the extend of the damages in a sum of money and the judge sentenced the defendant to what seemed to him bonum et aequum, but not to a larger sum than demanded by the plaintiff. The actio iniuriarum was granted a father for iniuria done to a son under his paternal power, and the master of a slave for an injury done to the slave |
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Term
| interdictum quod vi aut clam |
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Definition
| A restitutory interdict issued against a person who forcibly (vi) or secretly (clam) did a “work” on the claimant’s property. The work (opus) is here conceived in the broadest sense of any act done which changes the state of the land or its surface, such as cutting trees, ploughing, digging, demolition of existing constructions, etc. Vis (= force, violence) is also interpreted very broadly since any action taken against the prohibition by the owner is considered to be vis. The defendant is also liable for his slave’s wrongdoings. The aim of the interdictum is restoration of the former state by the defendant himself or at least his expense. |
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| drafters of imperial decrees. Jurists advised judges, magistrates, private citizens, and litigants. Jurists were also lecturers and teachers that significantly expanded different schools of legal thought. |
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Definition
| Proposed by Aquilias, a tribune. covering the cases of slaying, ruining, causation (in factum) to corporal/incorporal property. Applied the corrections using “double damages” when there was a denial of responsibility and the person was found to be at fault. Deemed cases of “inuria” as either dolus or culpa. |
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| lex de imperio (Vespianini) |
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Definition
70 AD. one of the most important surviving Roman documents, used to grant emperor’s power to Vespasian. Conferred constitutional powers and privileges, supreme authority. It is suspected that a senatorial decree, or consultum, made it into law. It gave Vespasian tribune powers
Significance- shows the emperor’s powers crossing into divine law. |
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Definition
| A slave who was freed was given the status of one of three categories: 1) full rights of roman citizen with commercium (right to engage in legal business), conubium* (officially recognized marriages), and testimenti factio (ability to make a will) 2) Iunian Latin (had all other rights except the ability to make a will) or 3) dediticii (no rights at all) |
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Definition
locatio conductio- a bilateral bonae fidei contract whereby a person (the locator) let out a thing, or his services, or a piece of work to another person (the conductor). Three different types of hire. Hire of a thing- the conductor was allowed the use of enjoyment of a thing by the locator in return for payment of rent. The locator had to deliver the property to the conductor, who received custody but not possession. The conductor had to accept delivery and pay the amount. Hire of services- the locator placed his serices at the disposal of the conductor in return for payment. Death of the locator terminated the contract. Hire of a piece of work- the locator placed a thing with the conductor in order for the latter to do some work in relation to it.
Significance- ? |
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Term
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Definition
| method of acquiring ownership. Formal procedure of recognized transfer of ownership. Instrumental in the creation and termination of relationships in the law of persons. At least 5 witnesses had to be present who had to be roman citizens with commercium. The passage of legal ownership was unconditional. |
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Definition
| reforms of emancipation from slavery primarily to expand the citizen body to recruit soldiers. Slaves could be freed but colluding with a praetor to go through formal process, enrolling a slave in the census, including in a will (maximum 100). Additionally, slaves could be given a new status of “Iunian Latins” which gave them all the rights of roman citizens except the right to draft a will. A slave under age 30 could not be manumitted without good cause. |
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Definition
| Marriage in which the wife is bought under the potestas* of the pater familias as property. This was done also strategically to free the wife of the potestas of her father and would keep the movement of inherited property within the immediate family. |
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Definition
Marriage is the union of a man and woman, a partnership for life involving divine as well as human law
· Matrimonium
o Institution for the production of legitimate children, because derives from mater (mother)
o A social fact with certain legal consequences
o Prime way by which potestas* could be acquired
· Matrimonium iustum—roman civil law marriage
o Parties had to be of age (12 for females, 14 for males)
o They had to consent
§ Affectio maritalis*
· The intention to enter marriage
· Consent of paterfamilias* required as well
o They had to have conubium*
§ The ius civile right to enter such a union
§ for children to take father’s status
· marriage outside of conubium could be considered a valid marriage under ius gentium
o children take status of mother
o these children are thus sui iuris since potestas did not arise in such a marriage
o Marriage had to be free of bars and impediments
§ 12 tables banned marriage between plebs and patricians (later repealed)
§ military men’s marriages were considered null when in service
§ people who engaged in morally dubious activities could not marry
§ no marriage between adopted child and member of family
§ no marriages between related people
· Affectio Maritalis
o Marital affection conceived as a continuous state of mind
o a basic element of intent in the roman marriage
o it presumes the intention of living as husband and wife for life and of procreating legitimate children
· Lex Minicia 90 BC
o ordered that a child born of parents of a different status civitatis receives the lower status
· Manus* marriage
o the wife is in the hands of her husband, in his legal control
§ through ‘purchase’ of bride via dowry
§ when man and woman live together for a year and considered themselves affection maritalis (man and wife)
o wife exchanges one family for another—leaves her father’s potestas for her husband’s
o paterfamilia had to consult with families before divorce
· Free marriage
o The wife is legally independent—husband does not hold legal power over her
§ There is a free marriage when the couple consider themselves one, with an intention to marry
o No grounds necessary for divorce
§ One party had to cease interest in marriage
· Dowry (dos)
o Given by wife or her paterfamilias to the husband
o Manus marriage
§ Husband acquired property if she is sui iuris
§ If she is not sui iuris, her paterfamilias provides a dowry
o Husband owns dowry and can do whatever he wants with it, unless agreed upon otherwise with the wife’s paterfamilia
§ Husband not entitled to the dowry’s capital, only its fruits (i.e. profits, income) of the dowry |
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Term
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Definition
A unilateral and stricti iuris* contract consisting of a gratuitous loan for consumption of things that could be measured and that were consumable through use (i.e. an amount of money)
· Ownership of the thing is transferred to the borrower
· Contracts in re
· Lex Poetelia 326 BC
o Improved debtor’s position by insisting on legal judgment before seizure and by removing threat of death/sale into slavery, thus introducing mutuum
· Could be contracted by persons without commercium
· Common to attach subsidiary terms by stipulations*
o As to the interest payable or date of repayment
· Interest rates regulated by laws and harsh penalties exacted on lenders who tried to exceed this limit
o In later law, the whole agreement of money lending was often made through stipulatio and thus mutuum lost its importance
· The borrower had to restore not the thing itself—it would be consumed by use—but its equivalent
· Duties of borrower could be enforced by condictio
o Lender did not have contractual duties (since contract was unilateral)
o If he lent something for consumption that was defective, he might be liable for delict* if he was at fault and damage resulted
o But no contractual liability |
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Term
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Definition
Delict*
o Wrongful act which causes damage and for which the victim is entitled to compensation
o Penalized the conduct of the wrongdoer as well as ensuring that the victim was adequately compensated
§ law of delict penal because there was no clear distinction between crimes and civil wrongs (delicts)
o liability in delict generally depended on fault and was strictly a personal matter
· Lex Aquilia* 287 BC
o Unlike earlier remedies, the Lex Aquilia took into account the fluctuations in the value of the currency
§ Had very punitive measures for delict
o In the case of killing (occidere), the wrongdoer was to pay the highest value that the above property had attained in the preceding year;
§ The defendant was thus subject to paying for the amount
o in cases of damages of another’s property, one must pay the owner whatever the damage shall prove to be worth in the next 30 days
§ applied to all wrongful damage
§ damage must have occurred through burning, breaking, or tearing apart
· suggests that this law only covered serious damage
§ the owner could recover the loss that he had sustained—the difference between the value of the property when it was damaged and its worth at the end of the following 30 days
· a penal quality of the law because the liability is the same if just slight damage or total destruction of a thing
o owner had to prove that the defendant wrongfully caused him loss
o defendant also must have caused loss wrongfully
§ through iniuria
§ Under Lex Aquilia, even the slightest degree of fault counts
§ ***the degree of care that was expected from the defendant depended partly on the skills and expertise that he purported to have, especially if he was a professional ***
· if a mule driver cannot control his mules because he is inexperienced and as a result they run down somebody’s slave, he is generally said to be liable on grounds of negligence
o same because of weakness that he cannot hold back his mules—it does not seem unreasonable that weakness should be deemed negligence; for no one should undertake a task in which he knows or ought to know that his weakness may be a danger to others
§ **those who purport to have skills should be judged by the level of expertise expected of such a person***
§ in some cases, a client may consent to run the risk of damages, applicable in cases where the damage inflicted was i.e. in sporting events
o Contributory negligence*
§ a plausible defense where the plaintiff had clear fault and negligence which precipitated his damages
· slave running through javelin range example |
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Term
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Definition
noxal actions lie when slaves commit delicts*—theft*, robbery, loss, or contempt.
· these actions give the condemned owner an option to pay the damages as assessed in money or to make noxal surrender of the slave
o it would be unjust to allow wicked slaves to inflict on owners any loss beyond their own value
· the transfer passes perpetual ownership of the slave but once the slave has brought in enough money to make good the loss suffered by the person to whom he is surrendered, he is manumitted by order of the praetor even without the owner's consent
· accounts for wrongful losses outlined in lex aquilia* and the 12 tables
· noxal actions depend on current status: if your slave commits a delict, the action lies against you so long as he remains within your authority. if he moves to another, the action then lies against that other. if he is manummited*, he becomes directly liable himself, and the option of noxal surrender is extinguished.
· where a free man commits and then becomes your slave, the previously direct action now lies against you noxally
· if a slave commmits a wrong against his owner, no action arises
· It is impossible for any obligation to come into being between an owner and someone within his authority |
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Term
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Definition
Obligation: a legal tie (vinculum iuris) or legal bond between creditor and debtor
o Concerned with sutuations where a person has uncured a personal liability for which he is answerable at law
o Obligations bind another person to give, do, or perform something for us
· Law of obligations deals with rights and duties in personam
· Obligations arise from acts of the parties themselves and not from their status
o Focuses on obligations incurred by the parties rather than those automatically imposed on them
· Obligations incurred by contracts made by the parties or through delicts* committed by one against the other
o Delict: unilateral because a wrongful and damaging act should incur a duty to compensate the victim in a civilized legal system
· Two duties arise from obligations:
o A duty arose on the part of the person incurring the obligation
o A corresponding right in the other person to enforce that duty by legal action, which would result in an award of damages
· Obligations do not affect third parties because they are a private agreement between two parties
· Obligations arise from contract or from wrongdoing or by some special right from different causes
· Unilateral Obligations
o Delict
o Stricti iuris*
· Bilateral Obligations
o Contract of sale*
o Bona fidei*
· Obligations are either civil or praetorian
o Ius civile, ius honorarium respectively
· Natural Obligations
o Not legally enforceable but which could have legal consequences
§ If a slave made an agreement with his master or some other party, it could not be enforced on manumission—the obligation of the other party was ‘natural’ only
§ But if that other party initially kept the primise but later tried to resile, he could be prevented from using the argument that the initial agreement was void
o Natural obligations made between paterfamiliais* and members of his family
· Classification of obligation is according to the causa*, or its source
o Obligations arise from ius civile
o Quasi-delict/contract derives from praetorian intervention
· Contract
o An agreement that is enforceable at law
§ Consensual contracts:
· The obligation arose simply from the agreement of parties
§ Verbal contracts
· Pronouncement of particular words in a set form created the obligation
§ Contracts re*
· The delivery of res created the obligation
o Loan, deposit
§ Contracts litteris (written record)
· A written acknowledgment of fictitious loan |
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Term
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Definition
Freedmen: those who had been freed from slavery
· Subject to some legal disabilities, both in public and private law
o Cannot stand for senate or public office, unable to marry freeborn citizens
· While freed from slavery, freedmen still have obligations to the owner
o Operae: provded that the manumission had been voluntary, the freemdan had to perform services for his master which counted as the “price” for manumission
o These services must be agreed upon at the time of manumission
o Only reasonable services could be compelled
o Performance of services would normally be free and could benefit the patron and his friends
o Had to perform these services at the patron’s home unless otherwise specified
o Patron had to give him food or give him opportunity to get food
o Services were not compellable if the freedman was ill or if he had either two children of any age or one child aged at least 5 years, or if he payed a settlement in place of his services
o Freedmen also expected to give his patron gifts on special occasions (munera) and respect his former patron |
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Term
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Definition
Acquiring ownership inter vivos either as ‘original’ where one acquires something with no previous owner or where ownership was derived from a prior owner
· Ius Gentium methods of acquiring ownership:
· Occupatio
o First taker of ownerless property (res nullius) becomes its owner
o Property could be ownerless if it had never been owned before or because the previous owner had ceased to be the owner
o Occupatio in relation to things that never had owners, enemy property, and abandoned things
· Accessio
o Inseparable attachment of things belonging to different owners, one thing being incorporated in the other
o The owner of the principle thing became owner of the whole thing
§ Anything attached to land became part of it
o Applied only to things that were not readily attachable
· Specificatio
o A method of acquiring ownership by the creation of a new thing out of someone else’s materials
§ If A made wine out of B’s grapes, A owned the wine
o Ownership could be acquired by the creator even if he had not acted in good faith
§ Could be sued for theft but acquires ownership of the new thing
· Acquisition of the Ownership of Fruits
o Fruits were classed as either natural or civil
o Ownership of natural fruits could be acquired through separatio (their severance from fruit-bearing property) or through perceptio (collection or gather of the fruits)
o Ownership on civil fruits (like rent) was transferred by delivery
· Finding treasure
o Finder had no rights to the treasure unless he was the landowner where he found it on the principle of accessio
o However on principle of occupatio, finder’s share may be justified if he was the first occupier of the property—similar to res nullius
· Delivery (traditio)
o Transfer of ownership of a thing through delivery
o Applicable to ius gentium modes of acquisition
§ How a buyer on contract of sale acquired ownership
· Ius Civile methods of acquiring ownership
· Mancipatio:
o A highly formal procedure
o Required presence of the transferor and transferee, the property to be transferred, at least 5 witnesses, and a libripens (a person holding scales) who had to be Roman citizens of age with commercium
o Mancipatio of res pancipi transferred ownership (dominiun) to the transferee
· Cessio in iure
o Performed before a magistrate with transferor and transferee and property present
o praetor asked the transferor whether he claimed the thing, assuming that the latter stayed silent or made no claim, he was taken as having ceded his rights where the praetor awarded the property to the transferee
o can be used to transfer res mancipi and nec mancipi
· Usucapio
o A person became owner of property by holding it for the prescribed period of time
o Allowed person who possessed property to convert their interest into full dominium
o Two years time of continuous possession required
o Possessor must be in good faith
o Applied only to property that could be owned privately
o Excluded stolen property
§ Even those who acquire stolen property in good faith and posses for a long time do not have ownership of the thing
· Aduiducatio
o When a judge awards ownership of property to a person who either had not owned the property before or who had owned the property in common
o In order to make a division or an adjustment of property
· Gifts (donation)
o A ground of acquisition of ownership
o The delivery transferred ownership of the property comprised in a gift
o Gifts between husbands and wives were banned
o Gifts had a monetary limit
o Donatio inter vivos
§ A gift made when person was still alive
o Donatio mortis causa
§ Gift made in contemplation of death
§ Gift only took effect until contemplated death of the donor occurred
§ Ownership in the property usually passed to the donee on the making of the gift but was revocable before death |
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Term
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Definition
| A legally independent head of a household. They are sui iuris*. If you do not have a living older male ascendants, then you are a pf, or if you have been emanicipated. Paterfamilas’s are the only ones in roman society that have the right to own property. The have full legal rights over the property of those in their potestas* they also take on the obligations of their children, slaves and possibly wife depending on their type of marriage. They have potestas* over their subordinates, and there are varying types of this. When the father dies, his sons become sui iuris. |
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Term
| right/ remedy in personam |
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Definition
| a remedy in personam is the opposite of a remedy in rem. A remedy in personam is legal claim that someone failed to do something they were supposed to and must do it. That debt was usually liquidated into monetary debt, rather than requiring them to complete the service. In the case of in personam remedy, a condictio would be brought against the defendant. If you believe the person has something that belongs to you, then you claim a right in rem (by vindicatio) that they must give it back to you. But if getting the property back is impossible, then the remedy you have is in personam. What is important to note is that the remedy in personam falls under the law of obligations, while the remedy in rem falls under the law of ownership. |
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Definition
| a category of things that were inherently valuable in an agricultural society; because of this, ownership transfered publicly in ritualized fashion by way of mancipatio*. Referred to immovables- contrasts to res nec mancipi, which were movable. Res nec mancipi did not require mancipatio, only traditio (delivery) for ownership. |
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Term
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Definition
property that belongs to no one, such as abandoned property and wild animals (both could be owned by occupatio). Finally, ‘divine’ things, which had three subcategories
a. res sanctae= consecrated things as well as crucial to safety of Rome (city walls, gates, etc). Damage carried heavy penalty.
b. res religiosae= things pertaining to burial (tombs, mausoleums), including certain land. were proper rites (religious ceremonies) that needed to happen before the land considered religiosae and only ground covering body not be owned privately.
c. res sacrae= things formally consecrated and dedicated to gods (later, after advent of Christian churches considered sacrae) |
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Term
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Definition
b. res religiosae= things pertaining to burial (tombs, mausoleums), including certain land. were proper rites (religious ceremonies) that needed to happen before the land considered religiosae and only ground covering body not be owned privately.
c. res sacrae= things formally consecrated and dedicated to gods (later, after advent of Christian churches considered sacrae) |
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Term
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Definition
a right to use property (‘servient thing’) of another person. The rules for what a servitude must be:
a. not over own property
b. not possessed
c. beneficial
d. exercised reasonably
e. not impose duties on beneficiary (except in case of common wall—neighbors must support each other’s wall, or considered abandoned). Owner of servient thing could not interfere with owner of servitude’s right.
Servitudes two master categories: praedial (attached to land, perpetual) or personal (attached to person, terminal). Praedial servitudes used regulate orderly relations between neighbors and came in two types:
a. rustic= oldest type of servitude—it governed how one could convey things across another’s land (people=iter, beasts/vehicle=actus, water=aquae ductus); pertained to countryside land
b. urban= governed use of landed property in towns and cities; pertained to more detailed use of property such as upkeep of contiguous properties as in tenements.
Personal servitudes used as legacies for surviving family members such as widow or unmarried daughter; could be used over land as well as movables. Four types personal servitude:
a. usufruct= it ended with the life of the property or the usufructuary; the usufructuary must return in original form (as bonus paterfamilias, usufrucatuary expected show high standard of care), although could sell enjoyment of fruits.
b. usus= a usufructuary without the ability to sell enjoyment of the fruits, although lodgers in a house (though women could not take men as lodgers.
c. habitatio= right to occupy a house for life (by will); later seen as separate servitude.
d. slaves and animals= could only be created by will. |
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Term
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Definition
| a slave (stichus) was a legally complicated subject because he was both a piece of property through which one could offset his own debts and receive services from. On the other hand, a slave was considered part of the family, in that the paterfamilias was legally responsible for the welfare of the slave as well as being liable should any actions be brought against the slave. But the paterfamilias stood to inherit his property, if the slave had no living children. The slave was not a citizen but he was not an animal either, there |
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Term
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Definition
one ius gentium mode of acquiring ownership—creating a new thing out of material owned by someone else (wine from grapes). Proculians v. Sabinian dispute= new creation does not belong to previous owner of material v. if new creation cannot be reduced to its component parts without undue effort/skill or if damage would occur. If material was partly owned by creator, then creator owned the new thing.
a. Nova species* was a new thing, not simply improved or altered (skill and effort had to be put into creation).
b. Ownership remained with creator even thought he may have obtained the material in bad faith—good or bad faith* was only relevant to seeking compensation (when creator not possession). |
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Term
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Definition
an formal promise made to formal request; amounted to a unilateral stricti iuris contract*; it is contract at its most basic level (predates 12 tables); all forms of contract are derived from this stipulatio. The form of the promise was very important, and any ambiguity worked against the promisee. Since stipulatio was a unilateral contract, the promisee was the only party who could seek a legal remedy if the stipulatio was broken. There were different classes of stipulatio:
[a] judicial or praetorian. These amounted to official regulatory stipulations (such as promising not to commit fraud, or to promise to pay for property that could damage one’s neighbor) on private business.
[b] simple, Ex die or conditional stipulations- simple meant obligation arose immediately and unconditionally (most common type). Ex die meant obligation was immediate, but could not be enforced until specified day in future. A stipulation ex die could not be after death but upon death. A conditional stipulation might never require the promiser to do anything, since it was conditional. In each class of stipulatio the promise was irrevocable, unless the terms under which that obligations would be void, were determined beforehand. Three uses of stipulatio in commerce and finance:
[a] Novation- an obligation is voided and replaced by new one to improve the position of promisee.
[b] surety- two types: (adstipulato) when debt is transfered from one creditor to another; (adpromiso) when a third party ensures payment of a debt.
[c] penatlies- used to secure obligations. |
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Term
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Definition
stricti iuris- according to a strict right of law. A legal rule of interpretation. Requires a strict, narrow and close interpretation of the rights. Often applied to servitudes* and contracts*.
Stricti iuris* contracts do not give consideration to bad/ good faith* and originated from the ius civile. Verbal contracts are stipulatio* (single contract)- a face to face formal exchange of words. These are unilateral only. Stipulatio can also lead to actio ex stipulatio (suing a person who did not follow through with an obligation), exceptio doli (one side blatantly cheats or manipulates the contract) ad exceptio metus (duress). Contracts are enforcable unless vis maior (act of god, overhwleming force). |
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Term
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Definition
the transfer of ownership of a thing through delivery. The most widely applicable of the ius gentium modes of acquisition, the standard way of conveying res nec mancipi*, and thus was of great practical importance. It was used to transfer movables or land, although the traditio* of res mancipi did not give dominium* to the transferee, only bonitary ownership. 2 essentials: there had to be a delivery and the appropriate intent.
delivery- there was no need for a handing over or physical contact in all cases. traditio longa manu- property was indicated or pointed at. traditio brevi manu- authorization by the transferor that the transferee could keep as his own a thing over which the transferee already had control. constitutem possessorium- transferor agreed to pass ownership of te thing to the transferee, but the former retained temporary control.
intention- both parties had to intend that ownership (not just possession) should be transferred. Evidence of the required intention was provided by iusta causa*, lawful cause, a legal ground that was the reason for the delivery of the thing, and by which ownership normally passes.
Significance- traditio ensures that the ownership of an object occurs with as little confusion as possible. Mistakes in relation to iusta causa could prevent a valid traditio, minimalizing bad communication and leading to fewer lawsuits if an exchange did not go as planned. |
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Term
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Definition
170-223. Roman jurist*. His writings supplied one third of the total content of Justinian’s Digest. Ulpian wrote prolifically on law in a clear, elegant style. Like Papinian, he was an intelligent editor and interpreter of existing ideas rather than an original legal thinker.
Signifiance- Ulpian helps us to understand much of the laws of the Lex Aquilia*. |
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Term
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Definition
acquisition of ownership by continued possession for the period prescribed by the law. People who benefitted were those who had acquired property innocently, but who lacked dominium* over it through some flaw in their title. Origins can be traced to the 12 tables. Needed the following: possession- the holder had to have legal possession; the possession that was protected by interdict; lapse of time-the requirement was for there to be 2 years continuous possession of land, one year for other things; continuity- there had to be continuous, uninterrupted possession for the required period. If he was interrupted, had to start again. An heir could step in if the original owner died, and it was considered continuous; good faith- that the possessor must be in good faith was not an essential of usucapio until the later Republic. Good faith was determined if his possession was held honestly. Good faith was presumed until the contrary was proved; iusta causa- the taking of possession had to be the result of some transaction or cause which was normally a basis for lawful acquisition (sale, gift, inheritance, exchange. The basic rule was that usucapio applied only to property capable of being owned privately. Stolen property could not be acquired through usucapio.Usucapion of provincial land was not possible since such property was not capable of private ownership. This factor eventually led to the development of longi temporis praescriptio--lengthy prescription--a form of prescriptive interest in provincial land. The required period of possession was 10 years in the parties resided in the same province; otherwise, 20 years.
Significance- great importance in practice--it allowed persons who possessed property to convert their interest into full dominium. The consequence was to reduce the problems caused by uncertainty of title. Usucapio gave the holder full title, thus helping to reduce potential litigation. |
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Term
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Definition
the right to use another’s property--without impairing its substance--and to take its fruits. The usufructuary lacked possession but had the right to use the property and to take its fruits for the period greed by the owner. A life interest would be granted to the usufructuary, but the period could be shorter (but could not last beyond the life of the usufructuary). He had to give security that he would take prudent care of the property, which had to be restored substantially unimpaired, allowing for reasonable wear and tear. Had to maintain property in the state in which it was received by him. Could not alter/improve a building. The usufructuary had to show a high degree of care--he would be liable for any deterioration or damage to the property if caused by his negligence*. Had the right to take and own the fruits of the property subjected to the usufruct. It was not possbile to have a usufruct in perishables, because they could not be returned unimpaired.
Significance- allows for many of the benefits of ownership without actually being the owner, which shows how complicated the Roman system is. Considered to be a valuable right. |
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Term
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Definition
a way to assert your right over something you own. Go to the praetor, only the owner can be the plaintiff (but both are claiming ownership). Praetor awards possession through remedy called an interdict* (usually to whoever has possession). The loser of the interdict becomes plaintiff. Next, the vindication- both go to court, claim ownership. It produces a right in rem; the person who proves ownership wins. To bring a vindication, you have to be the owner, you have to know what the object is, and it has to be produced in court.
Significance- an actual formal procedure for claiming ownership, allows an owner to prove himself in court. |
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Term
| warranty against eviction |
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Definition
a duty of a seller in a contract*. Although the seller did not have to make the buyer the owner, a guarantee was implied in classical law that the buyer would not be evicted. The guarantee could not prevent an eviction--the rightful owner was entitled to recover his property by legal process--but it entitled the buyer to sue for damages when evicted.
Significance- the evolution of this duty of the seller demonstrates a gradual improvement in the buyer’s position. In early law an evicted buyer had no remedy unless the proeprty had been transferred to him through a mancipatio*, in which case the 12 tables allowed him to recover double the price by the actio auctoritatis. By the classical period it was regarded as a breach of good faith for the seller to refuse to make the necessary stipulation. During the classical period, the guarantee against eviction came to be implied in all contracts of sale. |
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Term
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Definition
| The former owner of a freedman, a freed slave. The patron has obligations to the former slave. They have the obligation to ensure that they do not live a degraded lifestyle, have some financial responsibility, come to their aid if they are sued. They can only re-enslave a freedman under extreme circumstances. Freedman also has obligations through obsequium and operae. |
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Term
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Definition
| Slaved own property that the owner gives to the slave that is separate from his own property. The slave manages and operates, they get the profits and can buy themselves out of slavery. Anything can be given to slave through peculium, such as a workshop, allows an owner to make a lot of profit. The slave can enter into contracts without the masters express problem, but the only liability that the owner has is the value of the peculium. If the slave does faulty work, a customer can sue them up to the value of their peculium, is a way to minimize liability for the owner. If someone sues the owner, they cannot however sue against these assets, this sets up the potential for fraud. Romans have to setup rules to prevent collusion to avoid liability. |
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Term
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Definition
| possession in this sense meant to have physical control of a piece of property that was protected by interdicts, etc. Possession extended to corporeal things (tangible objects.) It was impossible to possess incorporeal things such as a servitude. Acquiring possession required that a) the person giving up the possession was consciously sound in his decision to give up possession (animus), and that b) the property was corporeal (corpus). Whether the transfer of possession was in good or bad faith, it did not matter. A huge difficulty with deciding an usufructuary case, although a usufruct was regarded as an incorporeal thing. The loss of either animus or corpus resulted in a cease of possession. |
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Term
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Definition
| Praetorian remedy in disputes about possession. After an actio was brought to the praetor, the possession of said property would be awarded by this official legally sanctioned command of the praetor. This interdict was not only for acquiring possession but also for retaining possession and recovering possession. The interdict had to be sought within a year. This phase in the legal repossession of property preceded a vindicatio action in rem or “against the object.” |
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Term
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Definition
| the recognized right to be legally independent. This entailed rights of full ownership and possession of obligations and property, which included women in manu, children, and slaves. |
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Term
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Definition
| If there were no explicit legal remedies for a cause of damages when the praetor decided a case, an in factum remedy would be issued. The defendant was liable by analogy or by logical extension, although not subjected to a 2x punitive cost to the damages. |
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Term
| right/ remedy in personam |
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Definition
| a right to bring action “against the object” after a possession had been awarded by the praetor. This was the second phase of the legal repossession process in which the rights to possession were contested |
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