Roman Foundations of European Law - appunti CEILS (2021/2022), Appunti di Istituzioni di Diritto Romano

Scarica Roman Foundations of European Law - appunti CEILS (2021/2022) e più Appunti in PDF di Istituzioni di Diritto Romano solo su Docsity! Roman Foundations of European Law Influence of Roman Law The influence of Roman Law is particularly strong in all the civil law legal systems but RL directly influenced only a few of them; indirectly this legal heritage represented a foundation for almost all the systems of the Western legal tradition. The English common law system was influenced by RL from the XIII century: - Vacarius, a scholar and glossator from Pavia, at the end of the XIII century moved to England and began to teach RL at Oxford University - the legal procedure of the writs was influenced by actiones and formulae - Canon law took inspiration from rules and procedures of the Romans, on the basis of the Digest. The Catholic Church had a strong influence here until the reign of Henry VIII who created the Anglican Church. Sometimes, the influence was direct: - In the BGB (German Civil Code) the contract is completely model on the basis of Roman law in the classic period - In Italian Civil Code there is responsabilità aquiliana, aquilian liability (art.2043) which is the same as the one created by the Romans in the III century b.C. Sometimes, the influence was indirect: - some systems are mixed, partly based on RL and partly on common law rules: e.g. Scotland, South Africa, Israel The influence started after the fall of the Roman Empire and continued in the century until the XVII-XVIII century. Ius commune europaeum was created: it didn’t mean that all European countries had the same law, but that there was a common foundation, a common basis in all the systems. Some English scholars tried to negate the existence of the ius commune europaeum but it was definitely there; it was used especially as a customary law when the rules in the civil codes could not be used. The German historical school was founded by Von Savigny. Tibau wanted to enact a civil code in Germany but Von Savigny opposed this idea; he and his pupils started again to study the Compilation of Iustinian and in particular the Digesta or Pandectae (the school changed into Pandect Science, the scholars were called Pandectist).The study of this source influenced the German legal system to the point that the BGB enacted in 1900 was deeply based on the rules created by the Pandectistans who based their studies on the Digest, RL. They were against codification but thanks to their studies the final result was a code. These scholars started to study Roman sources in order to give them a rational order. Roman sources are not systematic at all: there was no codification, rules were created case by case with the inductive method (from casus to regula). However, the Pandectists wanted to create a rational legal system and so they created new concepts, such as the subjective rights, on the basis of RL sources which didn’t contain these concepts. The modern conception of obligation was created by them even if we find a quick definition of obligatio in RL sources. They created the rechtsgeschäft, negozio giuridico. The use of RL to create rules was called by German scholars the reception. RL was used in many cases, as a legal basis but also cultural. Goethe, who was a friend of Von Savigny perceived RL as part of his cultural education; during one of this conversation with Heckermann, Goethe used the metaphor of the duck: just as the ducks dives in the water and seems to disappear for a while, but the re emerges from the water, so RL seems to have disappear in Europe for a certain period of time but it was still there and thanks to Von Savigny is back. HISTORY But before studying the influence of RL, we have to know RL, which is slightly different from the one re-studied after some centuries. We have to use a comparative and diachronic method. Roman law scholars were the first comparative scholars because the comparative approach was needed due to the developments in RL also at the time of Romans. Roman law started in 754-753 b.C. and ended at the time of Giustinian in the VI century (527-565). After the death of Giustinian, RL remained the law of the Easter Roman Empire (bizantin law) until 1453. In the Western world, RL was first used by barbarians to rule in the Italian Peninsula and then after the birth of Universities it was teached and studied. Historical-political-constitutional development doesn’t correspond to Roman law development. Periods of historical-political-constitutional development (Roman history): 1 ARCHAIC PERIOD foundation to: VI-III cent. B.C. monarchy + early republic 2 PRE-CLASSICAL PERIOD III cent. - beginning of principatus second part of republic 3 CLASSICAL PERIOD beginning of principatus - II half of III cent. A.D. ends when Modestinus, last jurist known by name, died 4 POST-CLASSICAL PERIOD end of III cent - VI cent. A.D. age of Giustinian included 5 BIZANTINE ROMAN LAW 754/753 - 509 B.C.: monarchy: 7 kings but probably more. Three of them were Etruscans, a well organized people of warriors and craftsman, quite sophisticated; they brought in Rome political achievement (e.g. Comitia centuriata: assemblies in which the population was organized on the basis of military lines) and started a period of public works 510-509: aristocrats revolted against Tarquinius Superbus because he was ruling as a tyranny; the formal accusation was done because one of his sons had raped Lucrezia. 509-23 B.C.: republic; the leges liciniae sextiae 367 B.C. defined the new structure of the republican systems. The republic was ruled by magistrates with a one-year term; the most important were: - 2 consuls: with political and military power. Their supreme power was limited because they had to govern in tandem and consult each other; they could also veto each others proposal; - 2 praetors (2 after 242 B.C., before only the praetor urbanus created by the leges liciniae sextiae): the praetor urbanus had jurisdiction in Rome and the praetor peregrinus in the issues between roman citizens and non-foreigners or between foreigners. They were nominated by the comitia centuriata and as soon as they were nominated, they had to issue the edictum, an act concerning the legal procedure. - ediles had to exercise care in market, inhabitants, sales, contracts; they had to issue their edictum too. Roma suffered a huge crisis and a civil law, after the Gracchen era (133-122 B.C.): the Gracchen were two brothers who made some reforms to solve poverty but they were killed by the aristocrats, since they were seen as enemies of the republic. Sulla and Caius Maiurs were the protagonists of civil law. Sulla won and appointed himself as a dictator; he wanted to reform in a conservative way and he created a sort of exemplum, the first case of a person declaring himself a dictator, with the other magistrates still existing but with no power. The situation after the death of Sulla was very different. Pompeus and Caesar started to govern together, dividing the area of the Empire among each other. However, after some time Caesar crossed the Rubicon (Roman Magistrates could not enter the Pomerium with his army) and a new civil war started that Caesar won in 48 B.C., after the death of Pompeus in Egypt. Caesar appointed himself dictator (extra ordinary magistrate with a 6 year term) for life and tried to reform the institutions to make them more democratic and less oligarchic (Canfora called him the democratic dictatorship) but then was killed in 44 B.C. for his autocratic approach. Octavian was named by Ceasar his heir. For a period, he was allied with Marc Anthony and Lepidus in the second triumvirate (recognized by the Senate, while the first triumvirate done by Caesar was not). Marc Anthony’s ideas started to diverge from the ones of Octavian, the representative of Rome and the Senate’s interests. They started a civil war and in 31 B.C. in Anctium Octavian won. 23-565 A.D.: empire: The principatus started de facto in 27 when it was clear that Octavian was the only master; he wisely avoided to call himself rex or dictator and gained his powers slowly to avoid the mistake of Caesar. He started the renovation of the traditional republican institutions but under the guidance of a prime citizen, the primus inter pares. Other titles that he got were pater patriae and augustus. He was not an emperor, but a princeps: the political regime was still a republic (the change in the conception of power was when the Constitutio Antoniniana was adopted in 212 by Antoninus Caracalla who gave Roman citizenship to all people living in the Roman Empire). The augustan age was a period in which Rome flourished thanks to the social engineering of Augustus, the cultural development (Virgilius) and the new political system. The role of the army (or better, armies, because there were many) was fundamental: armies made and unmade emperors. 69: the year of the four emperors, chosen by armies. Just after the civil war (69-70), Vespasians was the first of a new dynasty, the Flavians; after that, there were the Anthonies and Severians. 235-284: after the murderer of Alexander Severus, the following period was the military anarchy (succession of more than 18 emperors) that lasted until Dioclaetians was named by his army as the new princeps. 284-305: Dioclaetians reign. The empire was too large for a single emperor to defend it against enemies; Dioclaetians understood this and it divided the empire into two parts: he put Maximianus in charge of the Western part and he went to the Easter part. This was not a political division, but simply a division of the spheres of influence. The two emperors called themselves augusti and appointed two young men as caesars, their successors: this system was called tetrarchy. It was thought to be a political and institutional solution to the problem of succession. Dioclaetians reformed also affected the organizations of the provinces and some parts of the economy (e.g. 301 A.D. Edictum de pretiis which fixed an upper limit on goods and wages, as an answer to the growing inflation). Dioclaetians decided and obliged Maximilians to abdicate and the tetrarchy worked but survived for long. Constantin emerged as the emperor of the Western part and in 324 defeated his rival, Licinius, becoming the only emperor. In 337 Constantin died and was succeeded by his three sons who ruled together but at some point they officially divided the empire in 2 parts. The easter part was 1000 times longer than the western part. 527-565: reign of Giustinian who dreamed of a return to the past. His generals defeated the barbarians and for a period he conquered the Italian peninsula as well. He wanted to have a unified Christian Church but his most important achievement is the “codification” of Roman law (Corpus Iuris Civilis), in particular of the classical one, updating it and proposing it as a model for the legal system of his time and the future. 7 kings → 2 consuls → + Tribunes of the plebs and Tribunal assembly → decemviri pp.1,2,5,6 ● ius scriptum: created by express legislation ius non scriptum: outcome of custom and practise (ius morbus constitutum) ● law: rules of conduct enforced by the State by means of its judicial branch morality: rules of conduct habitually observed by well conducted people but not necessarily enforced by anything except public opinion Law may be called that part of morality which it is thought desirable to make compulsory; in primitive societies, there is no distinction: morality and the law are the same and customs are based on religion (right and lawful: fas, unlawful and wrong: nefas); later, law was secularized ● ius civile: rules peculiar to Rome, covering the results of legislation and customary rules ius gentium: result of increased intercourse and trade with neighboring peoples ius naturale (from Greek stoicism): principles intuitive in man by his very nature and capable of universal application; ideal to which it is desirable that law should conform Often, we see ius gentium and naturalis, treating them as the same thing; however, it was not like this: they were not identical (e.g. slavery: in ius gentium but not in ius naturale) ● ius civile: ancient formal law, enacted or customary ius honorarium: law created by edicts of magistrates (honos: being a magistrate) ● ius publicum: primarily, constitutional and administrative law (powers, constitutions, public assemblies, magistracy, criminal law, …) ius privatum: law affecting the relations of people in everyday life (personal capacity, inheritance, property, contract, remedies, …) This distinction comes from the Institutes of Justinians Personas: classifications of people according to their legal position; exposition of the rights of every position; how to enter or leave a social class Res: main body of law; discussion of rights having a money value. According to modern analysis, they can be grouped in iura in rem (effective against everyone) and iura in personam (available against specific persons). Iura in rem (such as dominium or ownership) are treated first; iura in personam are treated later, under the name of obligationes. Actiones: statement and classification of types of remedies for the various infringements, together with a descriptive account of the procedure. This distinction used by Justinian comes from Gaius. ● substantive law: the law as to the rights and duties to be made effective, basically, personas and res adjective law: procedural law that describes the remedies that can make substantive law effective ● lex: statutes, enactments or declarations leges latae or rogatae: statutes of comitia and plebiscites leges datae: law imposed on subordinate communities by magistrates to define the law. If the opinions of all of them concur, what they agree upon obtains the force of law; if, however, they disagree, the judge has a right to follow whichever opinion he may wish, and this is set forth in a rescript of the Divine Hadrian. The 12 tables were written in a summarized way. (e.g. 9.1. Privilegia ne irroganto. 9.2. De capite civis per maximum comitatum illosque quos censores in partibus populi locassint ne ferunto.). Leges publicae were quite long, detailed in order to explain every possible case and usually engraved in bronze tablets. Responsa from Aristo → D. = digest; Ulpian 17 ad edictum = Ulpian quoted in the 17th book the edict of the praetor (since it is not explicit). Sources of classical period This period is defined as the golden age of Roman law. The ars (roman jurisprudence) has developed and the patrimony of rules had become huge; interpretatio could improve and adapt laws to the need of the time. Jurists played a major role at several levels. First, they collaborated with the government in the consilium principis and in the chancellery. From the time of Augustus, some jurists (most of the times princeps’ supporters, but not always) received the ius publicae responderi, the power that gave their responsa more efficacy and a greater authority than the one of others. Jurists started to write the institutiones, but also continued to write other genres such as commentaria (comment on edicts or previous works, e.g. Commentaria ad Sabinum) that allow civil law to develop and adapt to the change. There were so many jurists that two schools developed, the sabinians (from Sabinus) and the proculians (from Proculus), often with different opinions. Roman law was a casuistic law and as a result it was possible that there were different opinions on one single case. Since every problem was open to different solutions, it is defined as an open system. IUS CONTROVERSUM: the result of the (perfectly normal) fact that different opinions and regulae lived together at the same time; it was not a problem, it was solved with a dialectical approach At what age was puberty (and political capacity) reached? Sabinians: individualistic approach it depends on the physical development of the individual child (if doubts, physical examination of the body); Proculians: objective rules 14 years for males and 12 years for females; they won. The literature was carried out also now, but it was different from the republican one; the character of the biggest part of classical legal writing was casuistic and there was no space for philosophical or theoretical reasoning or general theory. Someone has spoken about the “isolationism of the roman jurist” since they appeared as detached from society. They made jurisprudence a legal science thanks to the method they applied to the legal reasoning. Watson said that the roman society was influenced not much by the rules, but more by the intellectual methodology: analogical and deductive reasoning produces a really sophisticated jurisprudence (from “Roman legal tradition”, Watson). Problematic literature focused on particularly difficult cases: digesta, responsa, disputationes, commentaries, textbooks (after the development of the two schools; the most famous is Institutiones by Gaius, 150-160 A.D.: divided into personae, res and actiones, basis of the Institutions of Giustinian that has the same structure) and partitionare (brief summaries of rules, regulae, summaries of sentences of judges, … used by lawyers but also by students). Sabinus was one of the most famous jurists (he didn’t come from the elite, as many others; he was given the rei publicae respondendi by Tiberius, he never had a political or institutional role; he was poorer if compared to other jurists). Salvius Iulianus was in the concilium princeps of Adrian and he was the author of the edictum perpetuum, other four were Gaius and Pomponius (only one to write a roman legal history), Paulus (not really great but with a systematic approach to the study) and Ulpianus (more than ⅓ of the Digest are rules taken from him), who held several offices in the empire (prefecti of the pretorians, chief of personal guards of the emperor, highest office at the severan age); Modestinus is a later jurist (still in the severan age) and known as the last famous roman jurists. After him, the bureaucratization of jurisprudence (Schultz) took place: from the end of the III century (post-classical age), jurists were no longer individuals, but part of the imperial administration as anonymous officials. The powers appeared to be divided between the Senate and the princeps, but it actually belonged to the latter. At the beginning of the Empire, the Senate still had some power and was regarded as the main legislative body, in place of the republican assemblies (comitia were no more important). The edicts of the Senatus were the senatus consulta. The principle was the leader, the main member of the Senate, and this is why the consulta had a strong power (even if at the beginning they were not binding) and were regarded as the expression of imperial will. From the I century A.D. the Senate passed a number of measures that had the force of law and were enforced with praetorian remedies (not binding), called ius novum. Under the reign of Adrian, the Senate decrees acquired direct binding force, without the need of praetorians intervention. The Senate was initially an advisory council of the Rex, nominated by him and purely patricians; later it included patricians and plebeians nominated ordinarily by the Consul. It was composed of 300 members, Sulla increased to 600, Caesar admitted more people from lower orders and Augustus brought it back to 600. In the Republic, it acted as an advisory council to the magistrates with increasing control on them (give instructions rather than advice); it had no legislative power, although it issued senatus consulta, containing instructions to magistrates looking like legislation (but they were administrative orders for the enactment of existing law). It could declare a law void for informality or disregard of the auspices and it could suspend a law by directing magistrates not to apply it (at the beginning, this suspension required confirmation by the Concilia, but after the lex Cornelia 200 votes were enough). This paved the legislative power coming with the empire. Augustus wanted to foster the Senate; as princeps senatus, he could preside and determine what questions to consider, and choose the members. The Senate started to legislate: the early senatus consulta were directed to magistrates to insert these rules in their edicts; it was practice to submit to the Senate a draft of a proposal, in the form of oratio principis, settled by a committee to be voted. The latest senatus consulta showed that the Senatus simply recorded the decisions of the Emperor. The princeps started to issue constitutiones principis; we know five of them: edicta, mandata, decreta, rescripta and epistulae. After Diocletian, major changes occured; he was the father of the dominatus (change from the principatus, primus inter pares, to the dominatus, dominus et deus), according to many (for other, not now but under Constantin, because Diocletian used the ancient constitutiones principis, in particular the rescripta, similar to the responsa of jurists, while Constantine the Great issued mainly the edicta, more similar to modern legislation). Edicta → magistrates’ edicts were limited to their jurisdiction, while the princeps had no limit in scope and time; they usually contained general rules and principles addressed to the whole population of the empire (example: the Constitutio Antoniniana 212 A.D. contained a general rule applied to the whole empire). This is strange for Romans who preferred to solve concrete cases, they didn’t want and weren’t familiar with general principles. Mandata → provinces were governed by officials named by the Senate or the princeps; step by step the princeps began to give them instructions on the performance of their duties by issuing mandata. Officials had to respect these instructions. Ulpianus and other jurists wrote commentaries on mandata, which created new types of rules, to explain how an official should behave. Decreta → acts connected to the judicial power; they were judgments in a trial. The authority of this decretum was high; if a princeps decided in a certain way, other judges were not obliged to follow that decision but they were encouraged and tended to follow it. Even though it was not their goal, they indirectly created new rules and principles. The rescripta and the epistulae were the most important constitutions; they were responsae from the princips to question and petitions addressed to him Rescripta → answers to private citizens’ questions presented in a form of written petitions on a libellus; they were attached to the libellus, as footnotes (this is why they are called rescripta). They didn’t contain general principles since they were issued for specific cases; however, jurists used them as a basis for similar cases. Private citizens could be individuals or groups of people (concilia, centuriae, …). It was the most important form of law making thanks to interpretatio which enlarged their powers and effects Epistulae → answers to imperial officials’ questions asking for suggestions, advice, not only legal problems (e.g. Plinius the young asked Traejan how to behave with Christians)... In this case, the answer was a letter itself. Initially, Augustus didn’t claim the power of legislation (he preferred the indirect but effective method of influencing the Senate). Later, the imperial power grew and Hadrian definitely claimed legislative authority; from the III century, the emperor was the only legislator, above the law. Mandata: administrative orders to high officials, binding only within their jurisdictions Edicta principis: as all edicta, they were valid, on principle, only within the area in which the issuer had the authority and during his terms but since they were issued by the emperor they applied in all the empire and were life-long. They had the same stability as statutes. Rescripts: replies to enquiries or petitions by officials (epistola, issued on relatio of the official concerned with the matter) or private persons (subscriptio, issued on the supplicatio of the private suitor). They were not designed for legislative acts but gradually started to serve this purpose; sometimes they stated they were laying down a new rule for future cases, but often it did not. They were numerous in post-classical times. Decreta: judicial decisions of the emperor, either on first instance as a magistrate or on appeal; they were the only binding case law admitted. Leges generales or edictales: general enactments, especially in the Byzantine age; the name is not important (the emperor can issue laws when and how he will) Sources of post-classical period This era is called post-classical by German scholars (associated with decadence) and late antiquity by Italian jurists (not decadence, simply different period). The main characteristic is the absence of outstanding jurists; they still worked in the imperial administration but in an anonymous way (bureaucratization of jurisprudence). However, an exceptional jurist could become famous in this period too, as Ermogenianus did. He is famous for the Ermogenianus codex 295 A.D., but this was a private (unofficial) collection of imperial constitutions issued at the time of Diocletian. In this period, there were plenty of sources: all the sources that were created before and in addition the edicts of the emperors (huge body of norms, all applicable at the same time). This huge body was divided into iura et leges; iura was the name of the works written by the jurists; leges were all the constitutions enacted by the emperors over the centuries. Still there was legal literature, partly different: the legal level was lower because works were summarized of previous work, like the Epitome gaii, summarized texts based on the Institutes by Gaius, and the Pauli sententiae, a collection of sententiae provided by Paul and collected by an anonymous author. The fragmenta vaticana (manuscripts discovered in Vatican City) are a simplified summary from classical works and imperial legislation; the Collatio legum mosaicarum et romanarum, collection of legislation of jewish and roman people compared (by anonymous writer and with unknown date). The imperial constitutions developed: after Constantin, emperors preferred to use edicta, from now on called leges generales, as the unique type to create legislation. Problems arose both from the huge amount of alws, often contrasting, and the wrong interpretation of classical rules; there was the need of simplification and rationalization of this huge body of norms. Valentinianus the III decided in 426 A.D. to enact the law of citations: only 5 jurists had the power to decide about conflicting cases: Gaius (because of the Institutiones), Papinianus (one of the best jurists ever), Paulus and Ulpianus (great jurists with systematic approach) and Modestinus. Quotations by these five jurists of other jurists were to be considered authoritative. This was a problem because the body of norms increased; what’s more, each jurist could have an opinion different from others and in case of conflicts of opinions, the majority view had to prevail but what if there was no majority? The opinion of Papinianus had to win. If there is no opinion by Papinianus, judges have the discretion to decide as they please. This method didn’t succeed. Jurists In early Rome, law was hardly distinguished from religion: priestly influence dominated and the most powerful agency in the development of law was the Collegium of Pontiffs. Pontifices were patricians officials with the duty of supervision over all religious observances of the State: they were the custodians of the law and they had to give advice to applicants, explaining rituals of litigations, formulating the precise wording and modifying existing institutions through methods of interpretations: they had a professional secret. After some details of the legis actio were published, after the decision that half of pontifices had to be plebeians and that a pontifex maximus started giving public advice and instruction on law, the study of law was secularized, with the resulting rise of the class of the iuris prudentes, lawman that studied the law and further elaborated what they had inherited from the Pontiffs, the ius civile. In the republic, they had no official positions, but they simply acted as advisers to private persons; they received no feed but attained great popular esteem often opening them the way to office in the State. According to Cicero, their functions were 1. respondere (giving advice to private persons and officials); 2. agere (guiding the conduct of litigation by advising on the points of law and procedures); 3. cavere (directing the precautions to be taken in legal transactions and also writing legal documents). They also had to give instructions to younger jurists present at consultations, discussing with them the points arosen (an important part of training). The most important juristic activity was the production of legal literature even if the early literary works had an unsystematic character (mainly collections of forms for use in litigation). The first really systematic and scientific treatise is of Mucius Scaevola. Two rival schools of thought developed: the Proculian school, after Proculus, and the Sabinian school, after Sabinus; many differences are recorded (e.g. Proculians wanted the law more logical, Sabinians rested on authority) between these schools that had definite organizations with heads and regular successions. Little is heard of these schools after Hadrian. Early in the Empire, some jurists were conferred a ius respondendi (this privilege has an obscure history and nature): Augustus provided that certain jurists could give sealed responsa and Hadrian provided that if all those privileges had the same opinion, the judge was bound by that. Jurists were active in the literary production (we learn the law of the classical age from their works more than what we learn from enacted laws): they wrote instructions, collections of responsa, treaties on the whole law or just part of it, unsystematic discussion, monographs, .. The most valuable was the Institutiones or Commentarii of Gaius, the main basis of Justininan’s Institutiones. Jurists were prominent in public life even during the Empire. They were part of the Consilium, a group of advice for the Emperor; the frequently held consulate and other imperial offices. The classical age of Roman juristic science lasted from Julian to Ulpian (from Hadrian to Caracalla). The least great jurist was Modestinus, a contemporary of Ulpianus; many causes are at the base of the sudden collapse (increasing absolutism of the emperor, ascendancy of christian religion, end of pax romana and stable governments, …). Roman civilization was in decay and in such an age scientific studies could not prosper; the amount of arguments and conflicting opinions became a burden and so first Constantine and later Theodosius and Valentininas tried to re-organized. The latters adopted in 426 the law of citations, according to which 1. all writings of Papinian, Paul, Ulpianus, Modestinus and Gaius were confirmed and could be cited, 2. any other writer cited by one of them could himself be cited, 3. judges must adopt the view of the majority and where it was not present, Papinian must be followed; if he was silent, the judge could decide autonomously. Teodosius tried to collect all the constitutions in force; he created a commission in 428 A.D. to collect and write in a code comments, based on the works of Roman jurists, to the constitutions and another code for the legislation not in force. However, this work was too hard and the project failed. He decided to limit his aim and appointed a new commission to collect only the imperial legislation in force. The codex teodosianus was published in 438-439 A.D., contained in 16 volumes, each divided into titles within which the constitutions were listed in chronological order. Law school remained important only in the Eastern part of the empire, especially the one of Beritus and Constantinopolis (founded by Constantin); the teachers were called antecessores. The Western part collapsed and was controlled by barbarians, some of which issued barbarians codes and legislation. Part of them were directed only to the Roman population, the other part was directed to both the populations. The lex romana visigothorum 506 A.D., issued by Alarich II, is a famous example of legislation directed to roman populations: a mixture of legislation mainly taken from the codes teodosianus and some summorized extracts from classical jurists; it remained in use until the early medieval period. The lex romana burgundionum (of the eastern part of France) was intended for Roman citizens. The edictum theodorici wanted by Theodoricus, unlike the other legislations, applied to both barbarians and romans, was intended to help the interpretation of existing legislation. Giustinian, who became emperor in 527 A.D, wanted to reform Roman law (“tolse il troppo e il vano” in Paradise, Dante), inspired by a strong classicism. He wanted to recover the law from the classical “golden” period. He was inspired by the codex theodosianus; he wanted to issue a new codex and so created a commission of 10 men to collect all imperial enactments still in force. The compilation of this codex was supervised by John of Capadocia and the commission included Tribonianus and Teofilus. The commission started working in 528 and the codex was issued in 529. Immediately, Justianian changed this plan: he wanted to reform many things and so from 530 he issued a high number of decrees that abolished obsolete rules and resolved a number of controversial points of law, known as the fifty decisions, issued in a short period of time. The effect was that the codex novus appeared not up to date and for this reason in 533 a new commission was created to make a new codex, including the new imperial enactments from the time of Adrian II. The second code was called Codex repetitae praelectionis, published in 534 with the constitution cordi. Giustinian wanted the first code (initially named Codex novus, but later called Codex vetus) to be destroyed (but luckily some copies survived) because when he appointed the commission he issued a constitution to give it the power and in this constitution he said that the work of the commissioners was inspired by God and so it was not possible to admit that he had failed (admitting meant that he had misunderstood the will of God or that God had a wrong plan, but both were unacceptable). The Codex was divided into books, each one divided into titles. C 4.5.9 → C.= codex 4= number of the book 5= number of title 9= number of constitution The Codex was not the most important part of the Corpus Iuris (civilis was added in the medieval times). The Digest was the main one, the most important document of western legal tradition. Giustinian enacted the constitution deo auctore in 530 and the Digest was published in 533 with the constitution tanta. With the constitution deo auctore, Giustinian gave Tribonianus the power to create a commission (17 members, a mix of academics, ministers, practitioners, …) to eliminate controversies and discrepanties. They had to analyze 1600 works, mainly by 8 different jurists. How was it possible for 17 people to read this amount of stuff in 3 years? There are different theories on the topic. The pre-digest theory, by Cenderelli, said that the commissioners used some smaller collections of legal material; according to the theory of the masses, by Blume in 1820, the commissioners divided all these works into three main groups of works: the sabinians mass - commentaries on ius civile and sabinus works on ius civil-, the papinians mass -problematic literature and the works of Papinian - and the edictial mass - works on praetorian edicts; a fourth group called appendix included all the works that remained out of the first three). In 533 also the Institutiones were published, named after the work by Gaius. Giustinian recognized the importance of legal education and formal tuition for the first three years, followed by two years of private studies. He wanted the students to study the Digest, but it was too difficult for beginners. He appointed another commission, led again by Tribonianus, including Dorotheus, Teofilus, .. to prepare an introductory book. The Institutions are divided into four books, each one divided into titles. He wanted to promulgate the Institutes in the same day of the Digest but with a different constitution, the constitution imperatoriam through which he wanted to reform law studies. In the constitution deo auctore, Giustinian allowed commissioners to make some changes to shorten the passages of the jurists. When publishing the constitution tanta, he admitted that some changes had been made. These changes, that were frequent, have been called interpolationen (interpolations); there are different types of interpolations: formal interpolations (that do not change the content of a rule or legal institution) and substantive interpolations (change of the content of the rule or legal institution; they were necessary because the commission had to bring up to date the content of these laws that were in force). There is a huge number of interpolations; nowadays interpolations (interpolation criticism) has a more balanced approach to the interpolations, admitting that not all of them produce substantive changes. Giustianian didn’t allow anyone to write commentaries on these three texts; however, even if it wasn’t possible, it was done: jurists needed smaller texts. When conquering the western empire again, Giustinian issued another constitutio to extend the effect of the Corpus iuris to that part of the reign, the pragmatica sanctio. Giustianian reigned for another 30 years after the publication of the Corpus; he published new legislation and constitutions, outside the corpus, called Novellae constitutiones, mainly written in Greeks, the language of the eastern empire. They were never officially collected in a new work, but there were some private unofficial collections, one of which is the Autenticum that contains almost all the novellae translated in latin. Two collections arrived in the western empire, the Autenticum and a collection in Greek, thanks to which we know the existence of the Novelle and which became part of the study of law in universities. The glossators considered which the action was based. There were certa verba to be pronounced. The defendant conceded or denied the claim but in this legis actio no oath was required: it was a lot easier and risky than the sacramento. The judge was appointed immediately. This procedure was relatively quick. After in ius vocatio, there was a formal claim. If this was denied the plaintiff said a sentence that was the remedy provided by the XII Tables for stipulation, at least for certa pecunia. The legis actio per condictionem It was created in the III century B.C. (most recent, probably) and it was in personam. The procedure was quite easy to follow, free from rituals, and it was used at the beginning in case of a datio, the legal ground (one of the two parties has given to the other a certain thing or sum of money on the basis of their obligatio) not respected (e.g. I give you a tie and you give me sth; if I gave you the tie and you don’t give the thing, I can use a conditio to have it back). This is a consensual contract, based on the consensus of the parties; there four many consensual contracts (e.g. do ut des, do ut facias, facio ut des, facio ut facias). In this legis actio, the plaintiff wants to have back what he had given (e.g. the tie). It is in the middle between the legis actio and the formulary procedures. Oats were not required and if the defendant denied the claim, with the conditio the plaintiff gave notice that the defendant should appear in 30 days for the appointment of a judge. The condictio is the most important of the stricts iudicia.The name derived from the condictio of the legis actio and its fundamental notion was readjustment of relations where one was unjustly enriched at the expense of another. It was characteristic of condictio that the intentio didn’t state the basis of the claim: it merely claimed that so much was due. Condictiones are classified from two points of view: one set of names refers to the facts which gave rise to the action, the other refers to what is claimed and is of more interest. This actio was created for claims of certa pecunia and extended to other calims for a certum. It seems likely that it was to provide a remedy for dationes, avoiding the complications and penalties of sacramentum. Notice was given in iure, after in ius vocatio, a formal claim and a denial, to appear 30 days later to receive a iudex, whose decision would be absolution or condemnation to pay a sum of money. As a sacramentum was generalis, what happened if iudicis postulatio or condictio was available, an exclusion of sacramentum or a choice could be done? 2. Litis contestatio After the in iure fase, the litis contestatio started(joinder of issue); in civil and criminal procedure, it is still fundamental. It concludes the in iure phase and let the trial go on before the judge. It is a definition of the legal discussion, on the legal issue. It was present at the time of leges actiones; both parties had to submit to the process, otherwise no litis contestatio could occur: litigation could happened only with the consent of both parties. One of the effects was to consume the plaintiff's possibility to act (he could not bring the same action against the same person again: ne bis in idem is the name of this concept, still used). The consequence is that the plaintiff hadn’t that right anymore, but another procedural expectation (no more substantial expectation deriving from the fact) which is the fact that the trial is held by a judge who has to decide, and so he has an expectation of obtaining a decision. After the litis contestatio, the substantive expectation has been consumed and expired, but a procedural expectation arised. The litis contestatio gave the judge the power to decide the case. 3. Apud iudicem It was the phase following the litis contestatio. It was an informal phase if compared to the previous. The judge had to hear the case in a public space, the forum; he was a private citizen chosen from a list of “candidates” called album iudicum that had to be issued at the beginning of the office of the praetor. Parties had to be present; in exceptional cases, they could appoint a representative called procurator. The trial proceeded by alternate speaking of the parties. The burden of proof was on the plaintiff that had to prove his claim but in general very few rules of evidence guided the judge. We know that oral and written testimony was allowed and the oral one was the favorite proof at that time. The hearing before the judge had to end at sunset; in some cases, adjournments were needed and the parties had to be present: there were means to force and assure the presence of the parties in the following hearings, and one was the vadimodium, a formal promise to be present at a certain day; if one of the parties didn’t show up, he would lose his money. The judge was not an expert in law and so he was helped by jurists. The judgment was called sententia, which means sentence, opinion on the trial: it was an opinion because the judge was a private citizen (the parties had given him the power). It was delivered in an oral form and the parties had to be present. 4. Execution of the judgment Now we take for granted that the judgment will be automatically executed thanks to the authority of the State. In Rome, there was no power of the state, but only the consensus of both parties to give to the judge the power to decide. So, means to put pressure on the defendant were created to make him comply with the judgment. It was a form of self help and the burden was on the plaintiff. If the actio was in rem, there were no problems if the parties that had the object won the case: he could retain the possession. If the winner was the other party and who had the temporary possession refused to comply with the judgment, the winner could ensure the security given by the vindex. If the security given by the vindex was not effective, further proceedings could be brought to assess the compensation payable. In this case, a case in personam was followed: executions were only possible through actions in personam and there are two leges actiones. The legis actio per manus iniectionem It was the standard form of execution in early law and it remained in use (albeit in modified form) until the mid-Empire. It originally consisted of the authorized physical seizure of the judgment debtor (the party failing to comply with the judgment). Manus iniectio means the laying on of the hand. It was based on the manus iniectio, in this case manus iniectio iudicati because it is based on a judgment already delivered. It could be used in case of confession of the defendant or if the judgment was already delivered (confession was equivalent to a judgment). It remained in force until the Middle Empire. It consists in the authorized physical feasors of the judgment actor: after the judgment, an amount of 30 days after the judgment was given to the defendant to pay off the debt; if this time limit was not respected, the plaintiff could bring the case to a magistrate and the defendant was imprisoned: he could be immediately released only if he paid immediately or if a vindex could take his place. The vindex had to protect and prevent the debtor from private imprisonment; he had to dispute the formal validity of the judgment but the problem was that it was a risky role: if he failed, he became liable for double the sum of money due by the debtor (every judgment consisted in the payment of a sum of money, the compensation was always a sum of money). Only the validity of the judgment could be questioned by the vindex. The intervention of the vindex, even if unsuccessful, was convenient for the debtor because it immediately freed him. If a vindex didn’t come, he magistrate allowed the creditor to imprison the debtor for 60 days: they could find an agreement during that period (e.g. the debtor worked for the creditor to pay off the debt), otherwise the creditor had to display the debtor in three consecutive market days hoping for someone paying off the debt by buying the debtor (usually the family). There were strong reasons and a strong social and religious pressure to buy a member of your family because otherwise his body couldn’t be buried (religious problem: offense for the gods). The lex poetelia 325 B.C. changed this practise and the creditor right to sell the debtor was canceled; instead, the creditor could keep the debtor as long as he had paid off the debt by working for him (even much more than 60 years). The fiducia and good faith were important characteristics of the relationships that impose a social control done by the society and the magistrates and strong ethical limits. This was the seizure of one against whom there was a claim. It is the oldest legis actio and could be of three types:manus iniectio iudicati, pro iudicato and pura. The manus iniectio iudicati involved the production of the person to be seized, before a magistrate. The person seized might not personally raise any defense: if one was made it must be by a vindex but if he failed he was condemned in duplum. If no vindex appeared, the debtor was addictus to the creditor who might keep him in a private prison for 60 days during which he could always get release by satisfying the judgment or otherwise coming to terms. On three market days he must be publicly produced and the amount of the market days he must be publicly produced and the amount of the debt proclaimed. Debtors not redemmed were killed or sold into foreign slavery. If several creditors were concerned, they might cut him in pieces without liability if one cut more or less than his share, but there is no record of this ever having been done. A lex provided that debtors might not be chained or imprisoned but were to pay, not with their persons, but with their property. Manus iniectio pro iudicato is the extension of m.i iudicati to other cases, e.g. against a credito who had exacted by action more than his share. Manus iniectio pura is a further extension in which the defendant might be his own vindex. The legis actio per pignoris capionem It is very old, previous to the XII table (but not as old as the sacramento) and similar to the English remedy of distraint. It institutes the pignus, the pledge. A person was allowed by the magistrates to seize the property of the other party in some circumstances described by the statute that created this legislation. The creditor did not immediately become the owner of the debtor’s asset: he can only seize the goods to pressure him and to force him to perform his obligation. Pignoris capio means taking a pledge which was a security for the performance of the obligation. If the debtor complied, the creditor had to take the pignus back. If the debtor didn’t comply, it is not clear what the creditor could do with the property he had seized; probably he had to satisfy his credit by keeping for himself the property, without selling or disposing of it. The statute that created this legis actio explained the circumstances in which it could be applied, which were a mix of statutory and customary rules: an example if the sale of an animal for religious sacrifice (if the buyer didn’t pay, the creditor could seize his property). This was the seizure of property of the debtor to put pressure on him. It seems a primitive institution, hardly a legal institution at all. It occurred only in a narrow group of cases. The seizure was out of court, with no intervention of a magistrate, and the debtor need not be present. Like other legis actiones, it involved the use of a prescribed form of words, certa verba. What happened after the seizure is not clear: in all the cases there was no other remedy. It is a formal process under the lex for the enforcement of a right. B - formulary system The most important part of Roman procedure is the formulary system. They are the result of the development that started with the creation of the praetor peregrinus. He developed this procedure to regulate the trials between peregrini or peregrini and citizens; he had the power to issue an edict relevant for all those cases not covered by ius civile. At the beginning, it was the legal procedure of the ius honorarium and the two procedures (one for ius civile for citizens, one for ius honorarium for foreigners) lived together for a period, in the III century B.C. We know from Gaius (4.30) that at some point, citizens started to hate the legis actiones because of the strict formalism that was an obstacle to justice. The leges were so substituted, with the enactment of lex aebutia, by this formulary procedure. Gaius says that ut per concepta verba litigaremus: here there are no certa verba, but only concepta verba. There is a strong debate on the content and the date of enactment of the lex aebutia because we don’t have many sources (likely to be issued in 130-120 B.C.). What we know is that this lex gave the first legal recognition to the formulae as an alternative to the leges actiones, with effects also to the ius civile; at the beginning, this was limited to the conditio which could be used as an alternative to the legis actio per conditionem, the most recent legis actio and based on a simple fact, the datio (and the judgment of the conditio was valid in ius civile, not only in ius honorarium). The Romans immediately began to prefer the formulae to the leges actiones. They could insert in the concepta verba some exceptions that in the leges actiones couldn’t be introduced. Not only the lex aebutia, but also two leges iuliae iudiciorum privatorum and publicorum (issued by Augustus that wanted to reform private and public procedure) played a role in this development: Augustus decided to definitely abolish the leges actiones and the only legal civil procedure was the formulary procedure; according to Gaius, the leges actiones remained valid only in two situations: querela in officiosi testamenti and damnun infectum. The formulary procedure later was also known as ordo. In the edict the praetor had to include the remedies and the formulae. A formula is a provision based on the model form for the action in which the praetor explains in which cases he would grant the action to a potential plaintiff; there are also the requirements that have to be fulfilled to get the possibility to act (if not fulfilled, the praetor could deny the actio with the denegatio actionis). The formula gave the actio, so if I say formula I say actio. From Gaius we know that there are some formulae deriving from the ius civile, based on the ancient actiones, of course written in a different way: they were the formulae in ius conceptae, because they developed from the ius civile. The praetor had also the power to create new actiones, together with the jurists, the praetorian actiones; these were issued with a clausola edictaris that contained the description of the new actio and the circumstances in which the praetor would have granted that actio. After checking the facts and the concrete situation, the preator could grant the actio and so they were called formulae in facto conceptae. Formulae raising questions of law (de iure quaeritur) are described as framed in law (in ius conceptae), such as those with an intentio saying something “belongs to us by Quiritary right”, or that it “ought to be conveyed to us”. But other formulae are described as framed in fact (in factum conceptae), that is those in which there is no such intentio framed, but where after an initial statement of what has happened, words are added giving the iudex power to condemn or absolve (Gaius) There were also in this procedure the in iure, litis contestatio and apud iudicem phases. Under the formulary procedure, the plaintiff summons the defendants before a magistrate. The defendant had several options: he could immediately go before the praetor, he could provide a vindex as a guarantor, he could have a vadamonium or be indefensus (in this case, the praetor could allow the plaintiff the possession of the defendant’s estate and he could later sell it). There was a difference between a claim for a certum and a claim for an incertum: if the actio was in personam for a certum, the indefensus was considered as a pro iudicato, as if he was condemned (pro iudicato, instead of the trial, which is no longer useful); if the actio was in personam for an incertum, the plaintiff could get the property of the defendant through an act of the praetor called missio in possessionem, one of the typical praetorian remedies. If it was an actio in rem, the position of the indefensus was similar to the pro iudicatio and could allow a missio in possessionem. The legis actio appears to have been the only form of civil process available between cives. It was a procedure of private law but was unsuited to developed communities: it was formal, with a mass of rituals and was extremely rigid. If a claim could not be stated in one of the forms elaborated, there was no remedy and the slightest error in any detail of the ritual caused loss of the action. This is why it became a struggle between the orders. The last actio introduced, per condictionem, was simplified and free from ritual, but in the middle of the second century the formulary system was introduced.It resembled legis actio in the fact that first there was a procedure in iure before a magistrate and later before a iudex. However, the matter in law had a different character. Instead of ritual forms and certa verba there was a discussion by the parties, supervised by the praetor, and leading to the issue of a written formula, stating the issue and instructing the iudex. The Edict contained model formulae for the different kinds of claim to state the exact issue (concepta verba) as opposed to certa verba. The praetor early acquired an immense power by means of his edict: he gave actions where the law gave none (actio fictitia, in factum), refused them where the law gave them (denegatio actionis) and allowed by exceptio defenses not known to the existing law. Gaius tells us that the formulary system superseded the legis actio as the result of lex Aebutia (that authorized this method without forbidding the old one) and the lex Iuliae iudiciariae. The formulary procedure started with the in ius vocatio (stipulatio might be substituted for it) with missio in possessionem if the defendant hid and so made it impossible. If he did not appear or give a vindex for his appearance there was an actio in factum. The vindez was liable if he did not produce his man. On appearance the plaintiff stated his claim and demanded a formula. If this involved adjournments there would be vadimonium. The formula as settled was issued under the praetor's authority (offered by the plaintiff, accepted by the defendant and approved by the praetor) to the iudex. The whole iurisdiction being in theory based on consent there was a negotium between the parties. The issue and acceptance of the formula constituted the litis contestatio. A separate direction to act (iudicare iubere) was issued to the iudex with a copy of the formula. There were possible complications: in some actions (actiones interrogatoriae) the plaintiff might question the defendant on points affecting his liability; in other action, apparently at first only actions for certa pecunia, the plaintiff might put the defendant to his oath whether the money was due: if he took it the action failed, if he refused it he was condemned. If liability was admitted, in a claim for certum this was equivalent to judgment. In a claim for an incertum the confessus was apparently treated as indefensus, unless he gave full security. An indefensus was one who would not take the steps required by the action. If the claim was for a certum he was pro iudicatio: if for an incertum, there would be missio in possessionem, with an ultimate bonorum venditio unless he took the proper step. After issue, the formula went to trial before a iudex, an arbiter or recuperatores (between iudex and arbiter there was little difference and they were both chosen from the album iudicum; recuperatores were not necessarily taken from album and acted a small jury in which the majority decided; without majority there was absolutio). The plaintiff proposed names to the defendant till one was chosen. The iudex had the duty to either condemn or absolve, always for the payment of a sum of money. In some cases there was no condemnation or absolution but only a finding (pronuntiatio) that such and such were the facts (praeiudicia). The rules of evidence were lax (no sort of evidence might be given,...) If the plaintiff was absent, the defendant must be absolved. If the defendant was absent without an explanation or asking for adjournment, he was condemned. The formula controlled the iudex and his prima facie duty was to decide the matter as it stood at litis contestatio disregarding later events. In practice, this might work unfairly and it was modified in many ways: for example, in cases of satisfaction after litis contestatio or in bona fidei iudicia, where restoration with the consent of the iudex was a ground of absolution and the rule was not applied. In stricta iudicia, according to the proculians the iudex couldn’t take satisfaction into account and should condemn, for sabinians the defendant was entitled to absolutio. The iudex had to decide and if he was not able he could apply for release and a new judgment was appointed. The judgment was given orally in court in the presence of the parties. If the condemnatus didn’t satisfy the judgment, the enforcement began with another actio, the actio iudicati, after at least 30 days. If in his opinion there was no judgment or it was invalid or satisfied, there would be a iudicium but before the issue of the formula he had to find a surety responsible for double damages on failure. The actual execution could be personal seizure (authorized by the magistrate and with the effects of manus iniectio) or seizure and sale of property. In the latter case, the praetor issued a decree of missio in possessionem; the creditor could take possession for custody and post notices of the seizure. After 30 days, he had the authority to summon a meeting of creditors to elect a magister bonorum to sell the property in bloc by auction. The debtor became infamis. Confessus certi was in the same position as iudicatus in this matter and so were confessus incerti if he did not give security and indefensus. The process was modified if a debtor voluntarily surrendered his estate to his creditors: one who made cessio bonorum would not become infamis, was never liable in future beyond his means, for the old debts. Summons: someone who wishes to take proceedings against another person must summon him at law (in ius vocare) and that the person summoned incurs a penalty under the Praetor’s Edict if he does not come [see also taking bail (vadimonium) to appear]. Indefensus: sanctions were imposed on an indefensus, a defendant who tried to avoid being summoned, e.g.by hiding, or refused to obey the summons or to provide a vindex. 1 - formulae in the in iure phase What is the formula? It was a document containing the problems and the issue of litigation; the concrete formula was modeled on the concrete case and depended on the facts: the praetor proposed a model form that had to be adapted to the specific situation. Gaius gives a description of the essential parts of the formula which are the demonstratio, intentio, adiudicatio and condemnatio, but from other sources we know a bit more. These were essential in the sense that any formula in which they occurred would be meaningless without them. These are the parts (partes) of a formula: a demonstratio, an intentio, an adiudicatio and a condemnatio. A demonstratio is the part of a formula inserted at the beginning to show the subject-matter of the action, as in this part of a formula: “Whereas (quod) Aulus Agerius sold the slave to Numerius Negidius”. An intentio is the part of a formula in which the pursuer defines his claim, as in this part of a formula: “If it appears (si paret) that N.N. ought to pay (dare oportere) A.A. 10,000 sesterces” or again; “If it appears that the slave belongs to A.A. by Quiritary right (ex iure Quiritum)”. A condemnatio is the part of a formula which gives the iudex power to condemn or absolve the defender, as in this part of a formula: “Condemn, iudex, NN. to A.A. for a sum not exceeding (dumtaxat) 10,000 sesterces. If it does not so appear, absolve him” (Gaius) was not found, the defendant was absolved. In the case of the preiudicia concerning the status of people (free men or slaves), if there was no majority, the person was freed, according to the principle of favor libertatis. The parties could take part in the apud iudicem but they were not necessary, even because after a certain point lawyers were present. Representation was more important: parties could decide to proceed with a representative called procurator and in the formula his name had to be substituted to the one of the actor, becoming the actual party in the trial: the judge decided for or against the procurator. There were no strict rules of evidence. The mentioning of good faith is the base of the iudicia bonae fidei. The actiones based on the ius civile were called iudicia stricti iuris; oportere iuris civilis is the legal duty arising from the ius civile. On the contrary, the iudicia bonae fidei were granted for actiones based on bona fide, good faith; these legal transactions originated in the ius gentium. It was an ethical principle; if the behavior of one of the parties was not in accordance with good faith, the other party automatically could act, because good faith had been betrayed. This actio was not based on ius civile, but on good faith and so it was an oportere ex fide bona. Iudicia bonae fidei concerns less formalistic legal transactions. The judge had a wider power to decide and could raise himself the exceptio dolis, because dolus and metus was the opposite of bona fides. Iudicia stricti iuris: actions based on the ius civile (oportere iuris civilis), proceedings arising from a juristic act of ius civile; Iudicia bonae fidei: actions arising from the negotia bonae fidei (legal transactions/acts based on the good faith). These negotia originated from the ius gentium and the parties had to perform their obligations in accordance with the requirements of good faith. In the iudicia bonae fidei the oportere was ex fide bona. In these iudicia many exceptiones could be raised before the judge (and, therefore, after the litis contestatio took place). Exceptio doli could be raised by the judge. The distinguishing mark of iudicia bonae fidei was that the statement of the issue contained the words ex fide bona, which enabled the iudex to take into account, without express statement, matters which in stricta iudicia, would need to be expressly raised. Such points as dolus, metus, pactum, conventum, which had to be raised expressly by exceptio in stricta iudica, could be raised without this in bonae fidei iudicia. We have lists of the bonae fidei iudicia from various dates which shew that the list was not constant. The actions on consensual contracts and the ones on real contracts other than mutuum were bonae fidei. The judgment: the condemnatio in all formulae which have one is framed in terms of a money valuation. So even where the claim is for corporeal thing, such as land, a slave, a garment, gold or silver, the iudex condemns the defender not for the actual thing, as was the practice in early days, but for the amount of money he values it at. 4. execution of the judgment We sue for what is ours and a penalty in those cases, for example, in which we claim for double damages against a defendant who denies liability. This happens in the case of a judgment debt (actio iudicati). Let us look at the succession which comes to us by the purchase of [a debtor’s] goods (venditio bonorum). The goods of living persons are sold if they give them up under the Lex Iulia (cessio bonorum) or if they are judgment-debtors (iudicati) and the time allowed to them partly under the Twelve Tables and partly under the Praetor’s Edict for finding the money has expired. An administrator is appointed in accordance with the senatus consult when honorable persons, like senators or their wives, are in the position of having to sell off their goods. This administrator is appointed by the Praetor or a provincial governor in order to divide up their goods (bonorum distractio), so that enough of them can be handed over to their creditors in a more respectable way (honestius). (Gaius) The debtor could be brought again to the judge if he didn’t pay after 30 days from the judgment with an actio iudicati. In which the debtor could contest the validity of the judgment providing personal security; if he failed the damages could double. The bonorum venditio (sale of the asset) was another possibility for the plaintiff, who could take the custody of the debtor or ask the praetor for this. The bonorum venditio entitled the creditor to seize the property of the debtor: it was a means to put pressure. The first stage was the missio in possessionem (sending into possession) and, after 30 days, the creditor could decide to appoint a manager to conduct the sale of the property, preparing a list of the credits and debts and to organize a public auction (publicity was necessary because other creditors could take part to that). If the sum of money was not enough to satisfy all the creditors, the debtor remained completely liable for the remaining part. It was very harsh and it is the model of modern bankruptcy procedure. It was used against humble people because the consequence was infamia: if the debtor was not able to satisfy all the creditors, he would suffer infamia incurring in the social stigma. The cessio bonorum (surrender of the estate) was introduced by praetors at the time of Augustus. A debtor voluntarily surrenders his property to the creditors; after the property was sold, the creditor had to consider himself satisfied even if part of the debt remained unpaid. The cessio bonorum could be used only causa cognita. Examples: Actio in personam: actio certae creditae pecuniae → Let Titius be judge. If it appears that Numerius Negidius should pay Aulus Agerius 100 denarii, then, if there is no agreement between Aulus Agerius and Numerius Negidius that the sum should not be sued for, or if there has been any fraud (dolus) on the part of Numerius Negidius, you, judge, condemn Numerius Negidius to Aulus Agerius for 100 denarii; otherwise absolve him. nominatio intentio condemnatio; a taxation could be added exceptio Actio in rem: vindicatio rei Let Titius be judge. If it appears that the property which is disputed belongs to Aulus Agerius at civil law (ius Quiritium), and it be not restored to him in accordance with the judge’s decision, you, judge, condemn Numerius Negidius to Aulus Agerius for so much of his property as the thing will be worth; if it does not appear, absolve him. nominatio intentio clausola arbitraria condemnatio The clausula arbitraria was typical of a specific kind of actio, the actio arbitraria that gives much more discretionary power to the judge who on the basis of the evidence could decide to order the defendant to give back the disputed thing to the plaintiff and to condemn it if this order was not respected. It could be used only for actio in rem. Praetorian remedies The praetor could use his legal power to offer legal remedies different from the legal procedure. In many cases he exercised powers involving the actual decisions of points at issue (e.g. giving a new actio in factum or denegatio actionis). Four of them are important. The restitutio in integrum is later used by the emperors. It was an order nullifying a transaction or legal act, restoring the party to the original position, the status quo ante. The order had to be solved within one year and the person asking for it had to prove that he had suffered proprietary loss, … (e.g. pupillus) The praetor caused to be treated as non-existing some event which had altered the legal position of the applicant. It set aside a right which had been acquired. It was a decree issued after enquiry held on the application: there must be within an annus utilis from the cessation of the circumstances, there must be some serious damage and no other available remedy. The grounds for restitutio were numerous: dolus, metus, error in procedure (plus petitio, omissions, …) but also minority (the damaging act must not have been confirmed since the minority ceased and must not have been due to the minor’s wrongdoing), absence (if a right has become time-barred owing to absence of an action was lost for non-appearance, there can be restitutio if the absence was compelled by fear or was impossible), capitis minutio, …. The missio in possessionem was the first step of the bonorum venditio. It was an order authorizing a person to seize a property with the aim of putting pressure on another person. The missio in possessionem is a decree of a magistrate entitling a party to a dispute to enter on a certain property. It was issued in many cases and for different purposes and so its effects are not always the same. In some cases it gives legal possessio, in others merely the right to enter on the property with rights of adminsitration. It can be of a man’s whole property of just a part. Rei servandae causa is the most important group of missiones of a whole estate. They covers various missiones connected with litigation, judgment and insolvency leading usually to bonorum venditio. They did not give legal possessio but just a right to take charge for custody and administration. There are missiones connected with hereditas in which the possessio is not on the whole property but just on the whole hereditas acquired with actual legal possessio. The praetorian stipulations were formal promises made by parties as the result of praetorian intervention. They were promises sometimes with surety, sometimes without, imposed by the praetor on a party to a dispute. Though in form contracts and capable of being sued on as such, they did not really rest on consent, being formulated by the praetor. They could be judicial stipulations (done in the course of litigation) or not judicial stipulations (done outside a litigation). One of the most important examples is the cautio and the cautio damni infecti, imposed by the praetor to the owner of a property in a dangerous condition so that the owner had to promise security to indemnify his neighbors against damage. The interdicts are the most important praetorian remedies. They were orders, issued after a complaint, to do or refrain from doing something. They were issued without full investigations by the praetor on the merits of a case but still the praetor had to check that the request was reliable. Possessory interdicts offered protection of a person’s right to possession; they were used outside litigation but were very effective. Interdicts are the most important of the praetorian remedies. In their origin, they were orders enforced directly and compelling obedience to civil law rules; some of them, relating to public order, appeared in the Edict while the one about private law express rules created by preators themselves. The most prominent ones are those for the protection of possession; this protection is provisional because of the nature of the right protected and liable to be defeated by proof to title. In the narrower sense, interdicts are not actions, but processes leading up to a series of actions. If they were disregarded, the prator didn’t punish the offender: there was a procedure leading to an action tried by a judge in the ordinary way, resulting in condemnatio or absolutio. They can be classified from various points of view. ● exhibitory interdicts: orders to produce something in dispute and ended with the rod exhibeas. restitutory interdicts: orders to hand over a thing or undo an unlawful act, ended with the word restitutas; most of them deal with interference with public rights prohibitory interdicts: prohibitions of some acts that interfere with the enjoyment of a private right, ending with the word veto. The most importants were the one for the protection of possessory rights (called interdicta in a narrower sense, while the other two classes are called decreta). ● non-possessory: not connected with the protection of possessio possessory: they have to do with the protection of possessio a) single / double b) adipiscendae: designed to enable one entitled to possession, not yet obtained, to secure it. retinendae: for recovering possession (de vi cotidiana ordered possession to be restored on application made within a year, de vi armata for ejection by armed force without restriction of time. Interdicta duplicia were used either for recovering or obtaining possession. recuperandae possessionis causa: to secure a possessor, whose title is disputed, in further proceedings. They could be uti possidetis for immovables and utrubi for moveables The procedure is complex, especially in double interdicts. In single interdicts the interdicts were issued to any applicant without enquiry; if the defendant confirmed the matter was over. But if there was a dispute, if the defendant thought that the plaintiff’s case did not satisfy all the requirements of the interdict, he would simply ignore the order. The parties then went before the prator and the question was raised whether the interdict had been disobeyed. In double interdicts, the method was the same with the addition that they were issued to both parties with resulting duplication of some steps. Cognitio extra ordinem Cognitio extra ordinem developed at the time of Augustus. They were very different from the formulary procedure: only one phase, the judge was either the princeps himself, the Senate or an imperial officer or magistrate. Proceedings began with the plaintiff presenting a written statement of claim (libellus) and magistrates had to send this libellus to the defendant ordering him to appear in court and enter in the proceeding, after having provided security for his appearance (otherwise, he was arrested). If the defendant disregarded the summons, he committed the contumacia. In these proceedings, it was possible to have trials in absentia of defendants, but normally after 3 attempts to summon the defendant. The kinds of judgments that could be issued were different (e.g. not only money). The formulary procedure was known as ordo iudiciorum, but in the later law the whole matter was tried out before the magistrate, without any reference to another court: it was a cognitio by the magistrate not following the ordo iudiciorum and so called extra ordinaria, settled by administrative ordinaria. In Rome there was a gradual extension of this method till it covered all litigation. One result was that the notion of jurisdiction as resting on consent disappeared and the conception of litis contestatio as a contract died out too. The new system was advantageous for the Emperor since the administration of justice is now wholly in the hands of officials appointed and controlled by him. This system became important at the time of Augustus; the magistrate was a busy officer and so he commonly appointed deputies who tried cases but Diocletian forbade this delegation except in actual urgency (but at the time provinces were smaller). The in ius vocatio and vadimonium were substituted by the litis denuntiatio, followed by a statement of the case; later, in the 5th century, it was substituted by a summons issued by the magistrate after the submission of a statement of claim (libellus conventionis) which was communicated to the defendant. A day for appearance was fixed and security was given; before that date, the defendant had to submit his reply (libellus defensionis). If the plaintiff did not appear, the case was dismissed. If the defendant didn’t appear, the sureties might be proceeded against or there might be actual compulsion; there was a procedure in contumaciam with repeated notices and in the long run the defendant could be condemned in default. If both parties appeared, they both stated their case (Justinian required both to take an oath against calumnia). Decisions on exceptions might be given before the final judgment. In any actions, at any stage, on any point, an interrogatio might be done but the answer wasn’t decisive; also an oath might be submitted by leave of the court at any point with a right to refer it back. Since the praetor had disappeared, the jurisdiction was in the praefectus urbi and vicarious urbi in the cities. The judgment was read in court publicly and must be unconditional; it could be not only for a sum of money but also for actual delivery or other forms of satisfaction. There were subordinate elements (pronunciations, taxationes, …) that were no longer instructions to the iudex. Justinian introduced the condemnatio of the plaintiff: if the defendant was absolved, the plaintiff could be condemned for anything that appeared due from him in the case. Since the judge was an official with superiors, a system of appeal developed, arriving in important cases to the Emperor too. Only two appeals from a judgment could be done and the court of appeal from a final decision either confirmed or altered the previous decision, without referring the case back to the lower court. If the final decision was absolutio, the matter was ended and could be subject to the proceedings for calumnia. If there was a condemnatio not satisfied, there would be the execution on the judgment: personal seizure had died out, bonorum venditio didn’t survive the formulary system, only the cessio bonorum and an application to court officials remained. If the judgment was for a specific thing, this was seized by officials and handed to the plaintiff, in other cases the officials seized property to satisfy the claim and sold it at auction. When there were several judgments or the debtor was clearly insolvent, there was the system of distractio bonorum: after a decree of missio in possessionem, a curator bonorum sold the property and divided the proceeds pro rata. The Emperor might intervene, sitting as a court of first instance issuing non appealable decisions creating binding precedents. He might be consulted by a magistrate in the consultatio or relatio, issuing as a reply the rescript in which he decided the point or laid down a principle. He could also intervene in the supplicatio of a private person: ifan injustice was done and all attempts to obtain justice failed, a person could make a supplicatio to the Emperor who issued a rescript delegating someone to go into the matter. Compensatio Where A sued B for a debt, the fact that A owed B sth was irrelevant for strict law; the counterclaim must be on a different transaction. There were exceptions. If an argentarius sued his debtor, he could claim only the excess of this debt over what he owed the debtor; plus petitio didn’t make this allowance. The Edict required a bonorum emptor suing a debtor to the insolvent estate to deduct from his claim anything due in any way from the estate to him. In bonae fidei iudicia, the words ex fide bona enabled the iudex to take into account any counterclaim arising out of the same transaction. M. Aurelius allowed compensatio in stricta iudicia, the defendant being entitled to claim it by exceptio doli. In the formula, this system disappeared and in the cognitio it was reduced. However, Justinian provided that the judge might in all actions except deposit and recovery of land wrongfully occupied allow a set off of any kind in actiones ipso iure minuunt. Representation It is not advocacy, but the appearance as a party of someone not the real principal. In the legis actio it was impossible (but we know some exceptions). Corporate bodies could not act personally but they could appoint actores for any given case and later permanent officers for the purpose. There were the cognitores and the procuratores. Cognitores were the older but the less formally appointed procurator is found in the Empire. Not everyone could be or appoint a representative (Edicts contained several provisions). A cognitor was appointed in the presence of the other party and the appointment of one not present was not operative till he accepted. Procuratores were appointed informally and might act without appointment too (procurator voluntarius) but must be done before litis contestatio. The judgment affected (go for or against) the procurator and not the principal. If he was on the defendant’s side, he had to give security of satisfaction of the claim; if he was on the plaintiff’s side, he didn’t bring his principal’s claim into issue under the edict and so had to give security that his principal would ratify his action (cautio de rato) and he, not the principle had the actio iudicati. In later law, the cognitor disappeared and a fully empowered procurator represented his principal for all purposes. Security In general, the plaintiff didn’t give security. In classical law, the defendant in a real action gave security in one of two forms: if it was tried by sponsio, he gave security pro praede litis et vindiciarum, substantially a promise by stipulatio of a surety for the value of the thing and its profits, for due performance of the necessary procedure and against fraud; if it was tried by the formula petitoria, he gave similar security, iudicatum solvi, i.e. to satisfy the judgment, … In claims in personam security judicatum solvi was needed in a few actions and where the defendant had fraudulently made away with his property or was already bankrupt or was a herees whose insolvency was doubtful. The matter was more complex where a party acted by representative. Cognitor for the plaintiff gave no special security, but procuratores and others gave cautio de rato. XII tables: origins and myths in the Roman tradition lecture 1 by Prof. Kaius Tuori Myths might have some connections to historical events but their meaning goes beyond; they’re usually connected to religion. Origin myths are, for example, the Creation in the christian tradition, foundations myths for cities, the Boston Tea party. They are sources of legitimation of the current social, moral, political order, they answer questions like where we come from, who we are, … According to some one, myths must be believed: Carandini thinks that myths and legends of the prehistory contain a nocciolo autentico; Cornell thinks that Roman histories have an authentic structure upon which the authors have imposed a narrative superstructure and rhetorical elaborations. On the other hand, other scholars are rather critical in this regard: Crawford said that early Rome was notoriously a filed where there are as many theories as scholars, the school of ipercritici thinks that the early history of Rome is exaggerated, all we have are legends or a minor Etruscan vassal that was founded much later since in reality there were small villages, not spectacular cities; Wiseman says that sources are on an inverted pyramid: the earlier they are, the less they actually know. Roman historical writing emerged in the III century B.C.; Ennius is the oldest writer we know and we have only a small quotation. We know from the first historians only short histories, while in the republic period the works were bigger. Why do later writers tell more than the first writers, is it suspicious? Usually, the level of accuracy diminishes rapidly. There are invented memories (remember never-existing things because forced to remember) and also historical and political reasons (in the empire, re-evaluation of the mythical past). According to mythical origins, after the foundations of Rome (Romulus and Remo) in 753 b.c., 7 kings ruled (not likely: too many years each); in 509 b.c. the last king was overthrown and a republic was founded in which Romans were divided into patricians and plebeians. In this environment, the XII tables were issued. 1. Embassy: Livy wrote a monumental political history of Rome under Augustus’ empire. According to him, a commission of 10 men was appointed to draft the XII tables. An embassy was sent from Rome to Athens to copy the law of Athens in preparation for the codification of law, as a model for the XII tables. Another delegation of three men was sent to copy the laws of Solon and to acquaint themselves with institutions, customs, and laws of other Greek states. Why did they go to Greece? The cultural hegemony was clear and the roman elite was absolutely hellenized. Dionysius of Halicarnassus said that ambassadors were sent both to Greeks cities in Italy and to Athens to ask for the best laws that suited best our way of life. Also Cicero and Pomponius repeated the story of the embassy. 2. Decemviri: Cicero wrote that when the senate held supreme authority with the compliance and consent of the people, a plan was adopted whereby both the consuls and the plebeian tribunes should resign their offices, and a board of ten (decemviri), possessing very great powers and not subject to the right of appeal, should be elected; and they were not only to exercise the supreme executive power but also to draw up a code of law. 3. Downfall of tyrants and Republic again: Cicero tells us also how tyrants were downfallen through the stories of Virginia, Lucretia and other women. Verginia was a virtuous girl whose father killed her in the Forum to save her from the lust of one of the decemvirs. Also The most important absolute right is ownership and property, but the Romans didn’t talk about the law of property, also because there were different types of property; they used to distinguish different things of different types according to the functions (in order to understand what rules could govern them) and for this reason we talk about the law of things. The law of things covers a much broader field than modern property law. Classification The II book of the Institutiones by Gaius is devoted to things; it begins with the summa divisio, the most important classification of things: res divini iuri and res humani iuri. Res divini iuri were connected with divine iuri and under the protection of gods and they were of three types: - res sacrae were the things devoted to gods such as temples, altars, … - res religiosae were things consecrated to the gods of the underworld (cimiters, graveyards, …) - res sanctae had a particular function that made them protected by gods (walls of the cities, …) Res humani iuri were all the remaining things, under the law of human beings; they were of two types: - in nostro patrimonio or in commercio were part of a private asset of an individual and could be traded - extra nostrum patrimonium or extra commercium couldn’t be part of private assets and could not be traded → Res communes were rivers, sea, air and all other things common to all mankind. → Res publicus belonged to the Romans and their population, not to a single individual (road, bridge, …) → Res universitatis belonged to a certain community, city or municipality for the use of its citizens. Other things weren’t in patrimonio but could become part of that: res nullius (ownerless) and res derelictae (abandoned). Res corporales were material things, while res incorporales were intangible but still recognized and protected by the law (e.g. rights). When the Romans spoke of ownership, they thought of the owned object over which the right of ownership existed, not of the absolute right; this is why ownership was considered corporalis and connected to the object in an indivisible entity. This concept influenced the law of succession too. In archaic and also in classical law, there was the distinction res mancipi and res nec mancipi. Res mancipi were things that could be transferred only by using the formal manner of transfer called mancipatio or in iure cessio; they have been the most important due to their economic value: they were lands in the Italian soil, slaves, animals, … all connected to a rural economy. Res nec mancipi were the residual category of things not mancipi and could be transferred by simple delivery called traditio. Another distinction was between res mobiles (movable) and res immobiles (immovable), but this distinction was not as important as it is today. Res fungibiles were determined in accordance with their types, genus, and were replaceable: grain, red wine, a slave in general …; res infungibiles weren’t replaceable because the determination of this thing was connected to a specific specie, type of res). Things of normal use were called res quae usu consumundum; on the contrary there were also res quae non usu consumundum. Divisible things could be divided and their value was not diminished by the division. Res fructuariae produced natural (of a tree) and civil and legal (such as rent) fruits; the ones that didn’t produce fruits were res nec fructuariae. Universitates were groups of things; they were of two types: universitates in which things could form a unit, such as blocks, bricks, … to build a house, were called universitates rerum coherentium and universitates formed of separate objects, such as a sheep in a cattle, were called universitates rerum distantium. All types of universitates were perceived as one single thing. Law of property There are many different types of ownership. Provincial ownership was ownership over the land in the provincies (outside the Italian peninsula). Civil ownership was the most important type of ownership; it was reserved for the roman citizens or for the people who obtained the ius commercii and it was ownership over a land in Rome or in the Italian peninsula. - At the beginning it was called proprietas; it was not a specific right on something, but was connected to the family: the paterfamilias was the owner of the whole family and all the things connected to it (slaves, land, children, …); the pater had some limits in the use of proprietas: for example, if a piece of land belonged to the family and was essential to the survival of the family (called heredium), he was not allowed to sell it and had to preserve it for his heirs (and the name of land comes from this). - Under the republic, it was called dominium ex iure quiritium. It gave the maximus priority on a thing: the dominus (owner) could use and also abuse his property with a single limit: not damaging anyone else; he could enjoy the fruits of the property, sell it and do whatever he wanted. In the Middle Ages, commentators called these powers ius utendi (to use), fruendi (to enjoy the fruits) and abutendi (to abuse). - In late antiquity, the name proprietas came again but it was similar to the dominium. Praetorian or bonitary ownership was developed by the praetors in the time of the Republic and emerged because the praetors, in certain cases, could grant legal remedies when they considered that a person had an interest deserving protection in relation to a thing, even if he was not the owner of such a thing according to the ius civil. The typical case was the following: if a res mancipi was transferred by traditio by mistake, the receiver was not the dominus but in certain circumstances the praetor considered that the transferee deserved legal protection. This ownership was called property in bonis and the transferee was called bonitary owner: all the words are connected with bona, goods, to underline the protection over the factual situation, the ownership of that thing. About this distinction between praetorian and ex iure quiritium ownership, Gaius, in the Institutiones, spoke of duplex dominium: over the same things there were two kinds of property, but actually the existence of one kind of ownership immediately excluded the existence of the other. In the case of res mancipi transferred by traditio, there were a dominus and a bonitary owner but there can’t be two owners; this is an example of correction of ius civile by ius honorarium: the bonitary owner with possession and after a period of time could become the dominus ex iure quiritium with usucapio.A factual situation was transformed into a legal situation in ius honorarium and later in a legal situation in ius civile. In late antiquity, the dominium ex iure quiritium and the bonitary ownership merged and at the time of Justinian only one type of property existed: the civil ownership (the provincial ownership was canceled by the Constitutio Antoniana). Modes of acquisition and transfer of property The modern distinction is between derivative and original modes of acquisition. Derivative mode of acquisition means that there is a transferor and a transferee (I derive my right from someone else). Original mode of acquisition means that there is not a transferor (I become an owner not because someone else transferred it to me). Instead, the Romans had means typical of ius civile: mancipatio and in iure cessio (derivative), usucapio (original) and adiudicatio. They were highly formalistic. Adiudicatio → see formula: joint property is divided Mancipatio → it is derivative, typical of the ius civile and was the most important way to transfer res mancipi; it was ancient (before the xii tables) and extremely formal. It was used not only to transfer res mancipi but also to establish other rights such as servitude or to emancipate a child or to impose marital power over the wife, called manus. Only Romans citizens or people with ius commercium could acquire ownership with this method. This negotium was a combination of a cash sale and conveins of a res mancipi. The ownership acquired was the dominium ex iure quiritium over the res mancipi. The reason of the transfer was not relevant for the validity of the act. The procedure was the following: the presence of the transferor, mancipio dans, and the transferee, mancipio accipiens, was required together with 5 other people that had to be witnesses; a sixth person, the libripens, held a pair of bronze scales. The mancipio dans grasps the object to be transferred: if it was movable, he would bring it but if it was immovable, he had to bring a piece or a representative (e.g. key of the house) of the object. He had to touch it and say he was doing that in accordance with the law of Quritium; in this way he indirectly declared that he would have left the thing. The accipens had to declare he wanted to obtain the object and gave a piece of bronze or copper in early times or some money when coins started to be used to the libripens; the object was simultaneously transferred. The formality was necessary to stress the seriousness of the parties. The mancipatio, which was not a contract, immediately transferred the property; the sale and hire contract, on the other hand, didn’t immediately transfer the ownership. This is why the mancipatio is called imaginaria venditio. A strong warranty against the eviction of the property had to be brought by the transferor; it was called auctoritas. If a third person claimed the property of the thing transferred by the transferor to the transferee. A vindicatio rei was done between the accipiens and the third party; on the basis of autorictas, the transferor had to be present to the trial and defend the accipiens. If the third person won the trial, the transferee could act against the transferor on the basis of the warranty: on the basis of the auctoritas he had the actio auctoritatis. If the transferee won the trial, the transferor had to pay double the price the transferee had paid. Some formal declarations could be added; they were called nuncupationes. The transferor was bound by them. One of the most important concerned the size of the land that had to be transferred (if the land was smaller, the transferee could bring an actio against the transferor, the actio de modo agri and the transferor had to pay double the value of the missing part). This negotium became obsolete in late antiquity and was no longer used at the time of Justininan; this causes problems when reading the Digest because we have to check if it is genuine or interpolated: old jurists wrote about mancipatio but the writers of the Digest had to change it into traditio, which was the way of transfer used at the time. In iure cessio: the name explains it: in iure remainds to the in iure phase of the trial, while cessio is the yield. It was typical of the ius civile. It was formal and ancient (not as old as the mancipatio but still old). It was an extra procedural (not in a trial) application of the legis actio. It was used for many different purposes: to transfer ownership over corporeal property of every case and also res mancipi as well as res nec mancipi, to create or extinguish servitude, usufructus and in other cases. It could be used by Roman citizens or people with the ius commercii. The reason was not relevant for the validity. The procedure assumed the form of a fictitious trial concerning a sale and assertion of ownership before the magistrate. The rei vindicatio is the typical actio to claim ownership over a thing; the same structure is used here to transfer it. There is an assertion of a person (transferee) before a magistrate, saying that the thing is of his ownership according to the ius quiritium; in the trial there is a contra vindicatio but here the second party (transferor) remains silent and the thing was then transferred to the first (no apud iudicem phase: it is not a trial), in exchange of a sum of money (not actually a price which was present in sale and hire contracts only). The proper use of words was essential. It became obsolete in post classical times and no longer existed at the time of Justinian. Usucapio: it was the only original mode of acquisition of the ius civile. There is no transfer or delivery of ownership. It was already known at the time of xii tables. The main function is explained by the name: usus and capere means take the use. It made a person obtain the dominium ex iure quiritium over a thing; he had to possess a thing for a prescribed period of time and after that period of time the possession was converted into civil ownership. It is still used to give legal certainty by removing doubts concerning the ownership over a thing. In Rome it was used to solve mainly two problems: the case in which the person who transferred the thing had no title to do that (acquisition a non domino) and the case in which a traditio is used for a res mancipi. Objects had to be capable of being objects of transaction between roman citizens and civil ownership: it was called res abilis by the jurists and a res abilis is a res in commercio; many things were excluded by usucapio. The most important lex is the Lex Atinia of the late Republic: it declared that stolen objects (res furtivae) and the things obtained with violence were not res abiles, because there was a vitium affecting that thing. If the things were returned to the owner, they became again res abiles. Two elements were required: the possession and the tempus (fixed period of time). One requirement was civil possession, the physical intended control (possessio animo et corpore). This possession had to be uninterrupted; if an interruption (usurpatio), usucapio failed and the period of time started again. Some exceptions were admitted (e.g. in case of death, the heir continued the previous possession). The rules about time were classified on the basis of res mancipi (2 years) and res nec mancipi (1 year). Iusta causa or titulus had to be present: a reason had to justify the fact that the possessor became the owner. Usually, it was a contract or a legal institution like donation but could also come from a magistrate, such a missio. Strictly connected to the iusta causa was the good faith or bona fides: in early times, the Romans thought that if there was a iusta causa, the good faith was already there; later, they started to distinguish the two things. Bona fides is about the psychological position of the parties involved; in usucapio, it means that the person who had the possession over an object considered he was correctly receiving the object and he believed in the lawfulness of the transaction. In some situations, presumption of good faith could happen. Good faith was necessary only at the beginning of the possession: if you discover to be against law and become mala fide after a period of time, the usucapio wasn’t affected (mala fides superveniens non nocet). Usucapio could be used only by Roman citizens. At the end of the empire (II cent. A.D.), a problem started to arise about the ownership of provincial land and so a new kind of institutio was created: the longi temporis praescriptio; it was used also with regard to movable if the possessor was not a roman citizen. At the beginning, it was used as a defense of the owner of the land or the foreigner to protect their ownership. When extended to movable, it started to work as a usucapio and so not only as a defense in trial; the requirements were the same with only two distinctions: parties had to be not Romans citizens and the tempus was different (10 years for inter praesentes or 20 years for inter absentes). Inter praesentes means that the transferor and the transferee lived in the same city, while inter absentes means that they lived in different cities; this rule was later changed: no more cities, but provinces. Later, also longissimi temporis praescriptio was introduced, again a prescriptive institute to obtain ownership; the effects took place after a possession of 30 years. In this case, good faith was necessary, but not titulus. For a period, the usucapio and the two temporis praescriptio lived together; for this reason, Justinian reformed the matter of prescriptive acquisitions (or acquisitive prescription): usucapio could be used only for movables (and the tempus was 3 years), the praescriptio longi temporis worked for estate and immovables (titulus and good faith were required and the tempus was 20 years inter presentes and 20 for inter absentes) and the praescriptio longissimi temporis worked only for immovable and estates (only good faith was required and the tempus was 30 years). On the other hand, the ius gentium had another way of transfer: occupatio, accessio, specificatio, traditio, … Occupatio: it was an original acquisition; not everything which was technically a res nullius could be acquired by occupatio (res sacrae, sanctae and religiosae could not be so acquired). It could be applied to praedae and war booty (but this was ordinarily at the disposal of the general so that the State is the only possible occupant). There might however be private occupatio of enemy property found in Roman territory, and by private raiders in States with which Rome had no friendly relations. Occupatio of res derelictae was for things abandoned by their owner. The occupans must have known that the property was abandoned, and thus be in good faith: there could not, indeed, be the necessary intent to acquire apart from the belief that the thing was susceptible of acquisition. The abandonment must be a renunciation of ownership. The most important field of occupatio is in relation to things which have not previously had an owner (may be occupatio of stones, gems and islands arising in the sea, quod raro accidit). More important than these is the case of wild animals, discussed at length in the Institutes. Such things, beasts, game and the like, were acquired by capture, but only by complete capture: a wounded beast was not acquired, nor even a killed beast, till he was actually possessed. Moreover the ownership of such things lasted only so long as the effective control was retained: if they escaped, they were no longer owned. This was so far modified in the case of bees, pigeons and the like that the ownership of these was retained so long as they retained the habit of returning to their quarters, animus revertendi. The rule that of wild animals the ownership lasted only so long as the control did is not easily explained. It is in conflict with ordinary principle, for one does not commonly cease to own a thing by ceasing to possess it. It may be that the rule dates from a time when the right in such things was not thought of as ownership, when there was no vindicatio of them, though the law of theft would penalize interference with the holder. However this may be, the case was one of ownership in historical times and the rule had curious results. If the wild animal escaped, the former owner was no longer responsible for damage it did: it was not his beast. Thus there was no obligation to keep it securely. This state of things was early modified by the ediles and later by legislation and practice. Accessio: the acquisition of a thing by its incorporation into something of ours. In the accessio of moveables to moveables, if the union of the two elements is such that separation is practicable (commixtio), there is no accessio. If it was done by consent, the mixture is owned in common: if it was not by consent there is no change of ownership, and the act may be furtum. If the union is such that separation is not practicable (confusio) there is equally no accessio. Whether it was by consent or not ownership is common. The exception is when of the two elements, one is merely accessory to the other there is accessio. The ownership of the accessory (whether the thing resulting from, or made up of, the two elements would retain its identity as the same thing, if the added element were removed) part merges in the ownership of the principal thing. These rules determine only the question of ownership: there remains the question of compensation, which, though it belongs to the law of obligation, must, to avoid misconception, be considered here. If the fusion was by the loser, with knowledge of the facts, he had no claim: he was regarded as having given it, unless he had done it as a reasonable act of administration on behalf of an owner, whose interests he had protected when he was unable to attend to them himself, in which case he might have an actio negotiorum gestorum contraria. If he thought, at the time of the act, that he was the owner, he could resist a vindicatio, unless he was compensated for his loss, but if he still had not still possession, he had no claim. If it was done by the acquirer, in good faith, he must, if he had possession, compensate for the loss, at least in later law: Specificatio: acquisition of a new thing by making it, out of materials wholly or partly belonging to another person. According to the Sabinians there was no acquisition in the matter (the thing made still belonged to the owner of the materials), while for Proculians it belonged to the man who had brought it into existence. Justinian tells us that there had been a media sententia: it belonged to the maker if it was irreducible to its former state and it really was a nova species (thing); he adopted this view as law. Raw metal cast into a vase is reducible into the material again and though it is clearly a nova species it is not acquired by the maker. If A melts down B's vase and makes it into a statue, this is a nova species, but is it irreducible and so acquired? If it is thought of as one operation it is, for the original vase cannot be restored. But when it was melted down the material was still B's and in that sense ad materiam reverti potest. The case is not discussed. An exact definition of a nova species is difficult: the Romans had hardly defined it. Moderns have tried, the most acceptable seems to be: it must be a complete definite manufacture (the mere change of form of the material in the process of manufacture is not enough, e.g., cutting up the wood which is to form a box. But there might be difficulties here. Material The interdictum quod vi aut clam could be asked if a person erected a structure or did some kind of work on a land owned by someone else forcily (vi, use of force) or clandestinely (clam). This interdictum was claimed by the owner of the land who previously prohibited the person to build but the latter with vi or clam erected a structure anyway. The interdictum was given to him with the order to restore the status quo ante. The owner of a plant was allowed to collect the fruits fallen on the land of another person every second day; if the neighbor refused to let the owner of the fruits in his land collect them, the owner of the fruit could ask for an interdictum de glande negenda. De arboribus cedendis was given to a person in case the owner of a tree with some branches that were on his land didn’t allow him to cut them (even if he had the right). De interdictum uti possidetis was the typical interdicts granted to protect the possession over immovable things. Servitudes: case in which a person other than the owner has a right, more or less extensive, entitling him to some advantage from, or use of, the property. The right is enforceable not only against the owner but against anyone who interferes with it, and not necessarily originating by a grant from the actual present owner. These rights were institutions of the civil law, conveniently called iura (in re aliena); from another point of view they are called servitudes (in classical law this name was applied only to that important class of them which are known in the texts as iura praediorum, praedial servitudes). The two names express different aspects of the matter: iura emphasized the position of the person entitled while servitude the burden on the property, a more or less inconvenient restriction on his enjoyment, to which the owner must submit. Praedial servitudes are regarded as attaching to the property itself rather than to the owner of it. Praedium dominans is the person subjected to servitudes, while the other person is the praedium serviens. Personal servitudes are attached to a man personally and did not depend on his having other property to which they were in some way appartenant. They involved the rights of use (usufruct), but not of improvement; they also considered rights in rem that could be vindicated. They ran with the beneficiary for a time and not with the ownership of the property. These included the right to enjoy property and take its produce; usus without fructus; and right of habitatio. Usufructs died with the beneficiary, except in the case of those granted to municipalities, which lapsed at 100 years. Tenancy was unlike a personal servitude of usufruct because the tenant had no real interest or possession in the property. The tenant's use was purely contractual. If there was any controversy over nuisance or if he was ejected from his tenancy, he had to 'locus standing' to bring proceedings. Such right was one of ownership (dominium.) The tenant could, however, sue the domini on his contract. Praedial servitudes arose only in connexion with land (hence it follows that no one can have a praedial servitude, e.g., a right of way over the land of another, except as an incident to the ownership of another praedium to which it attaches, and with the ownership of which it passes.) They included two kinds of rights: rights that made someone allow an act done by you (rights of way for travel across land; right to draw water; water to dig lime or sand; right to make a neighbor's building bear the weight of a wall) and rights that restrained another from doing an act that affected you (building a structure that obscured your light; or draining rainwater from their building onto yours). Once established, they ran with the land: whoever became the owner of the "servient" property must forever allow the holder of the "dominant" property the relevant right. The right, however, must be necessary to the dominant property (not be used, for instance, for a commercial advantage). A servitude on Roman Land was considered a real property right in rem that could be vindicated in court. A servitude on Provincial Land, however, was considered only a part of a contractual arrangement (pacts and stipulations.) A servitude could be lost by non-use, or non-resistance to breaches of them for a period of two years. Usufructus: it was the right of using and enjoying the property of another salva rerum substantia. Usually it was for life, although it might be for a fixed term; it ended in any case at the death of the holder. If it was given to a corporate body it ended, at least in later law, in 100 years. The usufructuary was entitled to the fructus, the ordinary products of the thing, crops, young of animals, subject to the obligation of summissio. The usufructuary had all ordinary rights of use and enjoyment, use of tools, accessories and the like. He might sell produce, but, in classical law, only if his grantor had done so. He might let the land or hire out slaves or cattle, the proceeds of such transactions going to him; they were notfructus, but have acquired the name fructus civiles. The extent to which he acquired through a slave held in usufruct will be considered later He might improve the property, so long as he did not alter its character; but he had no right to remove any fixed improvements he had made: quod plantatursolo cedit. He must maintain the property, cultivate properly, pay all ordinary outgoings and, in general, act like a bonus paterfamilias. He could not alienate the usufruct. He could sell or let the enjoyment of it, taking the price or rent as his profit(no relation between his vendee or tenant and the dominus: the usufructuary remained usufructuary and thus responsible to the dominus). The usufructuary must give security for the fulfillment of his obligations and for the return of the property on the expiration of the usufruct. It was divisible. As the thing had to be restored at the expiration of the usufruct, there could be no usufruct of perishables. Difficulty was created by the fact that the common case of a usufruct of all or an aliquot part of a man's property would usually in terms cover some perishables. Early in the Empire it was provided by senatus consult that where a legacy of usufruct covered perishables the ownership should pass to the legatee, who had to give security to return the value at the expiry of the usufruct. It was in effect a loan for life without interest. This institution is conveniently called quasi- usufruct. It has no application except under wills, or codicils. Joint ownership: it was an absolute right in rem, giving the joint owner an exclusive power to use and dispose of the object of the joint ownership. It was safeguarded in the sense that the joint owner could exercise his "absolute" right and could not be prevented by 3rd parties from making use of his right. There could be several joint owners, who had the ius prohibendi: they can prohibit one joint owner from doing anything whereby the interests of the other socii are harmed. Owners have duties to each other in respect of the common property. There were means of obtaining compensation for breach: hereditas, iudicium familiae erciscundae, in others the iudicium communi dividundo, bonae fidei. having a very specialised type of formula, and governed by similar principles. Primary purpose: division, effected by the iudex under powers conferred by the adiudicatio clause in the formula. Profits must be shared and compensation given for damage due to culpa of one of the owners (culpa levis in concreto in Justinian's time). Any of them might alienate his share and so introduce another in his place, but he could not alienate the property as a whole without the consent of all. The right to compel division at any moment might be restricted by agreement, but an agreement never to divide was void, at least in late law All important acts of administration, especially building on the property, required in some sense the concurrence of all (not clear for classical law whether the rule was that all must assent or that none must expressly prohibit). In either view any one of them could veto such acts. It is probable that under Justinian consent of all was needed, but that if this was disregarded, there was no liability unless harm was done to the property. Communi dividundo did not lie for expenses incurred before the community arose or after its end, or for expenses incurred for the claimant's own purposes, ex, when he thought he was sole owner. It could not be brought after division, but there was an actio utilis for expenses which had been incurred before division, at any rate where the division had been without litigation in which these could have been claimed. Contract law Institutiones are elementary handbooks with didactical aims. Gaius is a private jurist from the II century A.D. while Justinian was an emperor from the VI century. Their institutiones are the same thing but very different (private publication vs statute, …). According to the tripartition things, persons and actions, it’s not clear where to put obligations: 1. family law → person 2. property law and inheritance law 3. inheritance law and law of obligation (contracts) 4. law of obligations (delicts) and law of procedure → action The law related to “things” has a wide extension: property but also succession and obligations. The two most important codifications in Western tradition are the French and the German; they have been revised recently. In 2010, the French one was reformed and the concept of causa for the validity of a contract was eliminated. French Code Civil has several books: 1. persons, 2. things, 3. contracts → seen as legal acts for acquiring ownership. In Germany, the Pandectist movement wanted to get some theories from Roman law; the BGB is a scientific work written in a very technical way so that common citizens would be in difficulty to understand even the general meaning; it contains a general part where notions and juridicial concepts are defined and a domain in which law divided in a parallel way as Institutiones. The Italian Civil Code was formulated on the basis of the French one, but with some common grounds with the German BGB. A legal event is any event that changes the legal reality to which law attaches some consequences by creating new legal situations, modifying or extinguishing existing legal situations. There are voluntarily (linked to a human behavior or agency) and involuntarily facts. Voluntarily legal facts are called legal acts which are distinguished between unlawful and lawful acts. Voluntarily unlawful acts are part of delicts, while among voluntarily lawful acts the most important are legal transactions. In the Roman sources, this is called negotium iuridicum: a legal transaction, voluntary and legal fact, with the effect to change legal reality according to the content of the legal act. The legal notion of it was elaborated by German legal scholars in the 19th century in order to generalize some features of a series of legal acts. In the BGB negozio giuridico is used but not defined, in the general part is not provided of the definition of “legal transaction”; French civil code introduced for the first time after 2016 a definition of legal transaction in art. 1100: this definition is not in the Italian civil code, but is used by scholars and in academic discourses (it will be endowed with legal effects). Legal transactions aim at changing legal positions. The concept was elaborated by German scholars in the late 19th, but lately they were recognised also by other countries. It is a scientific rather than legislative notion, a product of a generalization of features of different acts which are legislatively regulated. They include any juridical act consequent to human agency and will through which legal subject can change his and others position (ex. contracts, testaments, legacies, matrimonium, …). They can be inter vivos (among living people; effects during the life of the author of the act) or mortis causa (for the sake of death; when their effects are intended to be produced after the death of the author); they can also be unilateral transactions (only one subject has a patrimonial benefit or detriment from the legal transaction) or multilateral transactions (when involving 2/+ parties). The following reveal the basic need of any legal order (if the act is serious in order to attach legal consequences to a legal act the legal order wants to be sure that the agreement underpinning the act is serious): → formal transactions: validity depends on the performance of specific words/formality → Informal transactions: existence can be proved in whatever way, can be expressed in every form → Causal transactions: grounded on an underpinning appreciable exchangeable. valuable substantial bargain → Abstract transactions: regardless the existence valuable substantial bargain To verify the seriousness: 1) requiring the respect of specific formalities 2) requiring that the legal act enacts a specific typical scheme of business (ex. I give you money to have back something): in mancipatio and in iure cessio, formal and abstract transaction; in traditio, informal and causal transaction. In the history of English common law needs to check the seriousness of an act were developed in the 16th-17th century, like the doctrine of consideration: the enforceability of the promise could take place only when promises were grounded on substantial bargain (only promises where there is a counter performance were considered worthy to have protection), comparison between content of the act and the scheme of bargain considered by the legal order. For seal contract, when promises were incorporated in a document signed by author and witnesses, it was considered serious enough to be enforced. Real legal transactions: constituting, modify, extinguishing real rights; transferring ownership and constituting subordinated real rights Obligatory legal transaction: constituting, modifying, extinguishing personal rights; transaction which generate obligations Contracts in Roman law are legal acts which have only binding effects, contracts can only affect personal rights (obligations), never transfer ownership in order to constitute subordinated or real rights. Contract not valid legal transaction for transferring ownership is adopted in the BGB, to transfer it another legal transaction is needed (only this specific effect). In the normal process of acquisition of something there are 2 phases: 1) Parties agree over a contract of sale, effect to produce the obligation for the parties 2) They make arise the duties to perform the legal act to transfer ownership, perform a specific legal act. More common ways for acquiring ownership in BGB are: traditio (movable), inscription over public registers (immovable) → constitute the real effect, real right over the thing which is unscripted (≠ Italian). German law took Roman law but applied only mancipatio (abstract, validity not based on the substantial bargain) ≠ Austrian took traditio (causal act) model for the discipline of regulation of transferring of ownership. About real effects in the French and Italian civil code, the influence of natural law doctrine is present in France: the will of the parties was the center of the theoretical framework and therefore the consent of the parties could obtain whatever result. Legal transactions in Roman Law To transfer ownership, mancipatio, in iure cessio, traditio, … were used; contracts were legal transactions having the effect of creating legal obligations. Both legal transactions having real effects and legal transactions with obligatory effects are typical; there is a fixed number (numerus clausus of acts for transferring ownership and also fixed number of acts to create obligations (≠ modern law: parties and freedom to negotiate can create atypical legal transaction, regarded as enforceable even if not already existing). The numerus clausus is not strict in the same way as in the law of obligations, there are legal acts through which this principle in contracts can be dismissed. The elements of the transaction: → essentialia negotii (essential elements): fundamental requirements for the legal transaction (ex. parties of the act are entitled to transact the correspond legal position, actio ad actum meaning that if the party want to modify the legal situation he needs to be the older of that legal situation; will (wills of the 2 parties must match, form an agreement and be expressed freely) of the parties; formalities in the case of a formal legal transaction; legal ground/legal bargain for a causal legal transaction) → accidentalia negotii (accidental elements): elements which can be existing but if not this don’t affect the validity of the transaction itself. Justinian wrote “Every legal transaction can be made simply or by adding a die or a condicio ''. He talks about stipulatio (verbal contract) but generalizing this statement we can make it applicable to all legal transactions. Dies and condicio, when added, have the effect to modify the production of legal effect of the act: → dies: simple legal transaction, links the production of the legal effect of the legal transaction to an event which is future and certain: adding dies means adding a deadline for the payment → dies a quo: the obligation comes into operation immediately but the effectiveness starts later and the execution can be enforced only at the time of the completion of the term (equivalent to a suspense condition) → dies a quem: the promise can be enforced until the completion of the term → condicio: links the production of the legal effect of the legal transaction to an event which is future and uncertain 1) SUSPENSIVE condition: the fact that the event included happens is the condition for the effect of the acts to be produced; the effects are produced immediately and they will terminate when the event included in the condicio happens 2) RESOLUTIVE they are accidental because in both cases the legal transaction is valid immediately, their consequence is only to postpone the effect of the act but the act is valid (so fulfilled the requirement of the essentialia negotii) Since there were different kinds of rights, different kinds of legal transactions were created. For example, in family law: obligatory legal transaction (to change/modifying/constituting a personal right and obligation) and real legal transaction (to change/ modifying/ constituting a real right). In Roman law contracts never had the effect to transfer ownership (≠ tradition of French civil code as Italian one, will is enough to do whatever they want). With real effects (in rem): transferring ownership and constituting subordinated real rights, when derivative mode of acquisition this legal transaction takes place. With binding effects: generate obligations. Contracts never transferred ownership (French and Italian CC: manifested will can make everything to the parties). OBLIGATIO (obligations) Legal relationship between two subjects, the creditor (benefit in which something has to be done) and the debtor (promise to do something for the benefit of someone else). In the Institutions, the obligation is a legal bond (in archaic Rome nexum: the debtor was materially subject to the power of the creditor until the debtor himself os someone for him was able to fulfill the debt) that compels us to provide certain things according to the laws of our country. Real rights: grant immediate power, they grant the fact that the holder of the right keeps it the immediate power over something (static systems, concerns the attribution to the subject of the power over things). In the Roman law tradition real rights are called iura in re: do not define a relation between persons but rather between a person and a thing. Obligations: don’t grant an immediate power to enjoy something but rather grant the fact that someone else provides something for you (dynamic system, aim at making something happen in the future, no protection of the status quo as real rights). They were called iura in personam (rights constituted upon a person): it defines the legal power of someone over someone else, the relation between creditor and debtor. The perspective of roman jurists: trial oriented mentality, how the law is implemented in trial. Roman jurists focused on the distinction between actiones in rem and actiones in personam rather than the ownership. Since a person was entitled to proceed with a specific action for pursuing his interest, then he was considered to have a right. The characteristic of rights depended on the features of actions, and in particular of the formulae accorded by Praetor in in iure phase Gaius’ Institutes IV, 2-3 (2): A personal action is one which we bring against anyone who is liable to us under a contract, or on account of a delict; that is, that (what) we claim is that he is bound to give something, to do something, or to perform some service. (DARE FACERE PRAESTARE OPORTERE) (3) A real action is one in which we either claim some corporeal property to be ours, or that we are entitled to some particular right in the property, for instance, the right of use and enjoyment; or the right to walk or drive through the land of another; or to conduct water from his land; or to raise the height of a building, or to have the view unobstructed; or when a negative action is brought by the adverse party. It concerns subordinated real rights (in real action the intentio of the formula states that something is ours). Comparison of 3 actions, aiming at the restitution of something 1) REI VINDICATIO: action through which I claim the restitution of something basing my claim on a real right, the right of property. 2) CONDICTIO CERTI REI 3) ACTIO EX STIPULATIO: restitution of something on the basis of the specific duty of someone to restore my property. If we compare the intentio of the 3 1) the claim define the burden of proof of the claimant (he has to prove the reality of what is stated in the intentio in order to win the trial) “If it appears that the property, which this suit concerns, by Quiritary law belongs to the plaintiff”: the basis of the claim of restitution of the claimant is the right of ownerships and there is no mention of the defendant in the intentio, because the person of the defendant does not contribute in identifying the ground of my claim, irrelevant 2) action enforcing the specific duty of restitution grounded on loan or death or indebiti solutio paid on what is not due (when someone obtains the possession of something which is mine sine causa in that moment an obligation arises for him to give back, kind of lawful performance binding - nothing on the content, only bound to the form of the contract). If the debtor does not fulfill its obligations, the creditor can act against the debtor in front of the pretor with the actio ex stipulatio (for example if the debtor does not perform the mancipatio that he promised). If the debtor promised a certain sum of money, in this case the creditor can act against with the condictio certae pecuniae. REAL CONTRACTS Real contracts are those constituted by the delivery of a property (the will to stipulate the contract must be manifested by delivering the object of the contract), must the delivery itself does not make explicit the bargain behind it. The delivery does not reveal the purpose for which it is made, to understand it we need to refer to the agreement behind the delivery. Ancient contracts (1) legal system requires an explicit manifestation of the will which is the delivery and (2) the delivery is made for purposes which are clearly referred to a rural and archaic economy (mutuum, commodatum, depositum). Who benefits from the contract? The transferor or the deliveree? Obligations arise in favor of both (bilateral) or in favor of only one party (unilateral)? Which kind of legal position does the receiver gain? Possession, ownership, detention? → strictly correlated. MUTUUM The mutuum is a gratuitous loan for consumption of money or other things that were weighed, numbered or measured (res fungibiles). It is constituted by the delivery of a fungible object to another person (borrower), on the understanding that the borrower can consume the object and must, at a later stage, return the object: not the thing itself, but its equivalent in kind, quality and quantity (same amount, same value). The owner is the only one entitled to consume/use/destroy the thing is the owner; if you want someone to consume something you must give him right of ownership over the thing. The delivery person becomes the owner of the thing. The word for mutuum, is formed from meum and tuum, because what is mine becomes yours. Hence, if it does not become yours, the obligation does not arise; the one who receives becomes the owner of the thing. How does he obtain the right? Traditio with iusta causa: if the delivery is made with the understanding that this delivery is made to make you consume the thing; it leads to the acquisition of ownership, mode of acquisition of the right, the borrower will become owner of what is delivered (can consume the object). The mutuum in Roman law is gratuitous (as all real contracts) because the interests were forbidden, even if in practice, the interests had expressly been agreed in advance by way of another contract, that is the stipulatio. Mutuum is a contract stricti iuris: in the case of breach of the duties to return the object and to pay the interests the stipulatio usurae must be claimed in a different iudicium. Judicial remedy: if the borrower fails in fulfilling his obligation of restitution the lender could enforce the obligation by means of a personal action known as condictio; right of the creditor enforced by conditio. Considering commodatum and depositum in order to understand the principle of benefit/principle of utilitas contraentuium: the criteria for assessing the liability (dolus, culpa, custodia) depend on the balance of benefits that the parties gain from the contract. “The more you benefit the more you will be held as liable”. In modern law, utilitas contraentium is not expressly mentioned but is crucial. COMMODATUM Contracts where things are delivered in order for someone to use them. The party who benefit the most is the debtor (that receive). If someone receives for him to use it gratuitously his liability in case he fails in restituting the object will be evaluated in the criteria of custodia. Commodatum was a loan for use; it was established when one person (commodans) lent an object for free to another (commodatarius), for a fixed period of time and for a specified purpose. Object of the contract: res quae usu non consumuntur. The things that were consumed by use (res consumptibiles) or fungible things (res fungibiles) could not be the object of commodatum. In the light of custodia, liable in any case. Differently from the mutuatarius, the commodatarius did not acquire ownership, but only detention (detentio) over the thing transferred. DEPOSITUM Contracts where things are delivered for someone to keep the thing for the benefit of the transferor. The party who benefit the most is the creditor because the delivery is made for his seek. The debtor is bound by the duty to restore the thing, he has no benefits so his liability will be assessed according to the criterion of dolus. It has different forms: I. DEPOSITUM IRREGULARE: for the deposit of money or other consumable things; the depositories (one who receives) can use and consume the thing and is only bound to restore the same kind quantity and quality (same scheme as loan). New contract for the same purpose of an already existing contract → reasons: mutuum is protected by stricti iuris actions (mens distinction action good faith-strict law; difference for the power of the judge to asses the respective duties of the parties), you can stipulate a parallel stipulation for the payment of interests but in the case of breach of the borrower the creator will have to institute two different trials. It’s easier if the contract is protected by an actio bona fide (case of depositum), you can in case of breach and at the same time stipulatio usure in this case if the debtor fails in fulfilling both in restore the same quantity was delivered and his duty to pay interest, the 2 claims can be claimed within the same iudicium bonae fidae where the judge can assess the respective duties of the parties according to good faith. If the debtor at the moment when he stipulated the contract of depositum irregular also promised to pay interest thinks circumstance can be taken in consideration by the judge so he can condemn in the same trial to restitute the object and to pay the interest. On the terms that the depositarius should become owner of the things and could use them for his own needs on the condition that he return an equivalent quality and quantity on demand. Originally, this contractual form was considered by the jurists to be mutuum, but in later law deposìtum irregulare became a separate entity (This form of depositum differed from mutuum because it favored the depositor, whereas mutuum favored the borrower). In the case of depositum irregulare, interests might be claimed in the same iudicium instituted for the principal debt. CONSENSUAL CONTRACT: roman law follows the same 2 phases as in modern German and Austrian law, contract of sale does not transfer the right of ownership but only creates obligations for the seller to transfer the right of ownership by using another act ESERCITAZIONE - HOW TO ANALYSE A CASE 1) identify the Jurist and the source of the text Commentary ad EDICTUM: commentary on a Edict (made by the pretors, contains formulae and legislations) → commentary on the public enacted act concerning the IUS HONORARIUM (ius arising from the jurisdiction of the pretors) Commentary ad SABINUM: commentary to the work of a previous jurist (Sabinus), his work is not a legislative act, when they wrote commentary on Sab they intended to join an outline on IUS CIVILE (CIVILE and PRETORIAN, the second is an aid to the first Ius pretorian: new judicial remedies to rights already existing in ius civile 1) CORRIGERE (modify): ANCIENT institutes and rights can be changed and modify by the pretor 2) SUPPLIRE (integrate): pretor new institutes and rights not included 2) D. 41.1.20 pr→ D= digest, 41= n book, 1= title first, pr= paragraph principal → digest divided, first 3 numbers represent the division by Justinian → division in paragraph date back to medieval to make easier to keep it in mind 3) read the text Original mode of acquisition: ownership, derivative mode of acquisition: succession in the right, transfer from the previous order ↪ only yo this apple the principle that you cannot transfer more rights than you have according to this IMPERIUM think that in that specific case can be regarded as if existing. Requirements that the index has to take for granted are time of usucapio (other requirements: IUSTA CAUSA, GOOD FAITH, POSESSION ANIMO ET CORPORE, the thing has to be RES ABILIS). Granted to the possessor, POSSESSIO CIVILIS (beside fiscal control of the thing and the will of keeping it as my own the possession is grounded on IUSA CAUSA, so previous transaction granting my possession), this position is strong because he can also prove that a previous transaction took place and that his possession is grounded on this → neglect the requirement of the time passing and as a consequence protecting the possessor as he was the owner → usucapio is the legal act (human agency), but the effects of acquiring ownership happens regardless of the parties. is a CAUSAL act PRINCIPLE NEMO PLUS IURIS: burden of proof for the plaintiff in the IUDICIUM instated by a REI VINDICATIO FORMULA PETITORIA OF THE REI VINDICATIO CLAUSULA ARBITRATIA: iudex ordered to restore the property object of the trial, if the defendant dismiss the order then the condemnation will not be chosen by the index but by the claimant through the … the defendant is ousted to spostaneuìoulsy restore the property id he is not sure to have … Conditionals: - affirmative and negative fro the result that is the condemnation - If the property is of the plaintiff the judge must condemn - In the INTENTION is stated the positive… , is what is written is true the CONDEMNATION is true - Condemnation is “useful” for the plaintiff, he wants to have it, to obtain it he has to prove what is written in the INTENTIO In a case of rei vindicatio, if I want to prove my right of ownership I should prove the validity of the act, if the right of ownership of the previous owner was not true I should prove the validity of the transfer of ownership from the previous owner and my owner 3) Most relevant part if the formula of the rei vindicatio (INTENTIO, CLAUSOLA ARBITRARIA, CONDEMNATIO) 4) Different burden of proof of plaintiff and claimant in the rei vindicatio (claimant has to proof that what is stated in the INTENTIO is true, defendant to avoid condemnation has to only restore the property according to what the judge says otherwise he can’t do nothing because the statuino of the possessor is stronger) 5) What are possessory interdicts? (Judicial means for the protection of possession) 6) Difference possessor of a thing and someone to whom it has been given loan, distinction between detention and possession (possessor has the intention to keep instead the detector know that he has no right; if there is a contract on the basis of which you have the viability of the thing in this case is detention) → possession and detention discussion 7) What is the CAUTIO DAMNI INFECTI —-------------------------------------------------------------------------------------------------------------------------------------------------------------- - 1) what is the TRADITIO 2) What is IUSTA CAUSA in TRADITIO and why does it matter? 3) Why The Contract Of Sale Is Not Sufficient To Transfer Ownership (contract can’t transfer ownership) 4) What is the difference between TRADITIO and MANCIPATIO 5) DIFFERENCE POSSESSION AND OWNERSHIP → in the middle BONITARY POSSESSION (factual situation but IUSTA CAUSA makes it more, protected as if it was DOMINIUM=ownership) Jurist commented the edict: interpreted all the remedies included in the edict → trial oriented mentality Contractual liability: fail to fulfill call liable meaning that his original duty to eprom something to the creditor will turn into the duty to restore the creditor. Breach of contract correspond to the impossibility the original duty to provide something to the creditor, this impossibility must be attributable to the debtor (sonly if depends on his behavior) to assess this, his liability: 1) DOLUS (voluntarily breathe contract, produced the impossibility 2) Principle of DILIGENTIA PATERFAMILIA: dolls breach must be voluntary in the case of CULPA objective evaluation concerning the standard of behavior followed by the debtor - if you are debtor you would be subject to DOLUS because only if voluntary - UTILITAS CONTRAENTIUM: benefits and criteria for liability has to be balanced inch type of contract CASES ON DEPOSIT In case of loan the transfer of ownership is not a consequence of the contract but is a prerequisite contracts never transfer ownership.