roman law summary first 3 chapters, Schemi e mappe concettuali di Diritto Romano

Scarica roman law summary first 3 chapters e più Schemi e mappe concettuali in PDF di Diritto Romano solo su Docsity! Roman law serves as the foundation for various legal systems, including modern Italian and French law. It has greatly influenced European legal principles. The study of Roman law is essential because it forms the basis of European legal foundations. The historical timeline of Roman law includes the Foundation of Rome in 753 BC, the transition from monarchy to the Republic (616 BC - 1st century BC), the Preclassical Age (until 2nd century AC), Classical Age, Late Antiquity (until Justinian), and the Justinian Age. In the 800 years preceding the end of Roman society, Europeans studied Roman law sources to apply them practically and establish principles for European law. This study peaked during the reign of Emperor Justinian (527-565 AC) in Constantinople. Justinian aimed to restore the Roman civilization through architecture, military efforts, and law. He built significant structures like the Hagia Sophia, sought to reclaim lost territories, and placed emphasis on Roman legal traditions. In the law domain, Justinian aimed to preserve the Roman tradition of jurisprudence. Despite the shift to emperors enacting laws, Justinian retained the influence of jurists. Roman emperors had been enacting laws, known as constitutions, for 400 years. Notable collections include the Codex Gregorianus, a private anthology structured by topic, and the Hermogenianus Code, an appendix. Emperor Theodosius II attempted a comprehensive collection but settled for the Codex Theodosianum, mainly focusing on public law. Justinian's era witnessed a blend of imperial enactments and jurists' traditions, contributing significantly to the understanding of Roman law and its enduring impact on legal systems. Theodosianum Code (438 AC): Published by Theodosius II in 438 AC in Constantinople, the Theodosianum Code officially recognized the Gregorianus and Hermogenianus codes. It comprised 16 books, collecting imperial laws from 314 to 447. The code's structure involved titles covering various topics, presented in chronological order. However, it did not include the content of the Gregorianus and Hermogenianus codes. Justinian Code (534 AC): Facing the three existing codes—the Gregorianus, Hermogenianus, and Theodosianum—Justinian chose to create a unified code. In 534 AC, he published the Justinian Code, • Pomponius: Echoing Varro's perspective, Pomponius asserted that in the early stages, all authority was concentrated in the king. The king had the authority to present enactments to the people, and these enactments were likely accepted by the people, though formal voting may not have occurred during this period. 2. Custom (Consuetudo): Custom, or consuetudo, served as another source of law during this period. Custom referred to regular occurrences or practices. In matters of family law, it is suggested that customs played a significant role. For example, the authority of fathers in Roman society might have been established more by custom than by explicit laws enacted by kings. Custom, particularly in family matters, was likely a prevailing influence during the early monarchy. The 12 Tables and Legal Developments (450 B.C. - 300 B.C.): 1. The 12 Tables (450 B.C.): • Enacted in 450 B.C., the 12 Tables contained written rules of law. • Formulated in response to societal demands after the collapse of the monarchy. • The decemviri, a group of ten magistrates, were tasked with writing and enforcing the tables. • Significantly relevant in Roman law history, remaining valid throughout Roman history. • Contributed to the awareness of law among plebeians. 2. Legis Actiones - Civil Procedure: • Legis actiones, the law on civil procedure, evolved from legis actio per iudicis arbitrive postulationem to legis actio sacramenti during the monarchy. • Enabled citizens to be judged by a private judge rather than a public authority/king. • In the first legis actio, the plaintiff brought the defendant before the magistrate and made a formal request for a judge or arbiter. No oath was required, but a formal claim of the reason for the judge's appointment was needed. 3. Birth of the Jurists (450-300 B.C.): • Pontifices and a religious committee handled religious matters, bridging the gap between society and the gods. • Plaintiffs, those bringing actions to court, became the interpreters of the law. • The concept of potestas, a father's power over his son, allowed some fathers to sell their children for borrowing money. • The 12 Tables imposed punishment for excessive sales, limiting a father's power after the first sale. • Emancipatio allowed sons to be freed from paternal potestas willingly. • Distinction between free men (libertus) and slaves, with patrons owning half of a freed person's fortune in certain circumstances. Republican Sources of Law - Jurists (200 B.C. - 100 B.C.): 1. Jurists (200 B.C. - 100 B.C.): During the Roman Republic, prominent jurists emerged from 200 B.C. to 100 B.C., including: • Catones (around 150 B.C.): • Cato the Elder and Cato the Younger were chief jurists. • Cato the Younger, despite dying before becoming praetor, played a significant role in legal developments. • Cato the Younger adopted a theoretical approach, stating that an invalid will remains so even if changes are made to the testator's fortune. • Cato the Elder focused on practical aspects, leaving patterns of action related to substantive law, including guidance for landowners. • Manilius, Publius Mucius, and Brutus (150 - 120 B.C.): • Manilius (consul in 149 B.C.) wrote seven books, four of which were a commentary on the 12 tables, while the others focused on legal actions related to buying and selling livestock. • Publius Mucius (consul in 143 B.C.) wrote ten books as a commentary on the 12 tables, emphasizing the practical aspects of law actions. • Brutus (praetor around 142 B.C.) wrote three books with speeches, later accompanied by fellows Quintus Aelius (Manilius), Rutilius (Publius Mucius), and Virginius (Brutus). • Cicero (90-40 B.C.): • Cicero, an important jurist, mentioned the existence of additional books by Brutus that were not written by him. • Virginius collected Brutus's opinions and responses on his law books around 55 B.C. • Brutus was the first to suggest the 12 tables were somewhat outdated, opting for a more dialogue-based and freer approach to explaining the law. • Fellows of Jurists (125-100 B.C.): • Quintus Aelius (associated with Manilius), Rutilius (associated with Publius Mucius), and Virginius (associated with Brutus) were the first jurists to have fellows. • They were quoted by Pomponius between 125-100 B.C., contributing to the development and dissemination of legal knowledge during the Roman Republic. • Lex Cornelia de Edictis: • The issuance of numerous actions led to the enactment of the Lex Cornelia de Edictis, a law meant to curb the legal power, especially the judicial discretion, of magistrates. • The law mandated that magistrates manage justice according to their edicts, reducing discretionary powers. • The aim was to standardize legal actions, ensuring that they were consistently applied and accessible to everyone. • By incorporating actions into their edicts, magistrates adhered to a more consistent and objective legal framework. Empire Sources of Law: From the Birth of Christ to 300 A.C.: 1. Statutes of Law: • Augustus, the first Roman emperor, enacted many statutes of law, particularly related to family matters. 2. Edicts: • In 130 A.C., the jurist Julianus was tasked with collecting the texts of the edicts in a definitive pattern. • Three main sources of law during this period: decrees by the Senate, the jurists, and statutes/enactments by emperors. Decrees by the Senate: • Senate began issuing rules of law (senatus consulta) around 40 A.C., particularly in private law, focusing on inheritance. • Examples include decrees related to women providing guarantees for others' obligations and restrictions on sons borrowing money. Jurists (0-150 A.C.): • Two main schools of law: Proculians (following Labeo) and Sabinians (following Sabinus). • Julius Julianus played a significant role in ending the differences between the two schools. • Sabinus, a prominent teacher and writer around 30 A.C., gained considerable success with his comprehensive summary of the law. • Proculians were more devoted to positive law, while Sabinians leaned toward natural law. Jurists (150-250 A.C.): • Gaius and Pomponius (150 A.C.) contributed to legal textbooks, focusing on the edict of the praetor. • Severian jurists and lawyers (200-250 A.C.) were instrumental in summarizing laws and traditions, with 60% of Digest quotations from this period. • Justinian's goal was to restore Rome's past, leading to the compilation of the Digest. From 300 A.C. to 400 A.C.: • Jurists continued to exist but focused on summarizing and providing remarks on previous jurists' texts. • Gaius's Institutes were found in a manuscript from around 400 A.C. in North Italy, showing continuity and preservation of Roman legal texts. 3. Constitutions (Laws Enacted by Emperors): • Laws enacted by emperors are referred to as constitutions. • Two types: general rules (edicta) with immediate force towards people and general orders (mandata) given by the emperor to public authorities. • Examples include the emperor granting Roman citizenship to all living in the Roman Empire in 212 A.C. Examples of Mandata and Particular Rules Enacted by Emperors: Mandata (General Orders to Public Authorities): • In Egypt, the emperor issued mandata to the tax authority, specifying which taxes to apply. • For instance, a general rule might impose a 5% tax on all real estate transfers in Egypt until a different rule is enacted. Particular Rules (Decreta, Epistulae, Rescripta): 1. Decreta (Judicial Decisions): • Decreta are judicial decisions made by the emperor. • Over time, the emperor reduced his direct involvement in judicial matters but retained the power. 2. Epistulae (Responses to Public Authorities): • Epistulae are brief responses signed by the emperor, directed to public authorities seeking clarification on legal matters. • Example: A governor in 100 A.C. sought guidance on how to handle Christians who refused to sacrifice for the emperor. 3. Empire (30 B.C - 527 A.D): • Transition from Republic to Empire marked by the rise of Augustus (27 B.C.). • Augustus becomes the first emperor. • Imperial constitutions: Statutes of law, edicts, decrees by the Senate, responses from emperors. • Key jurists: Gaius, Pomponius, Severian jurists (150-250 A.C.). • From the birth of Christ to 300 A.C.: Statutes of law enacted by emperors, edicts, and responses from emperors are major sources. 4. Justinian's Reign (527-565 A.D): • Compilation of Roman laws into the Corpus Juris Civilis. • Justinian's codification includes Digesta, Institutiones, Codex, and Novellae. This timeline outlines the key periods in Roman history, focusing on the Monarchy, Republic, Empire, and the later reign of Justinian. 2.Roles and Power Structure in the Roman Republic: 1. Centuriae and Tribes: • Role: Enacting laws. • Centuriae: Elected magistrates and held the power to approve or reject propositions from magistrates. • Tribes: Elected tribuni plebis (representatives of the plebs), who eventually became regular magistrates. 2. Magistrates' Imperium: • Power: Civilian and military authority, shared by two chief magistrates (consuls) annually. • Praetor: Second magistrate with the same power, but subject to veto by consuls. • Hierarchy: Consuls had a higher position, followed by praetors, and then aediles (with lower imperium). • Edicts: Magistrates, including praetors and aediles, had the power to enact edicts. 3. Power Sharing Among Magistrates: • Dynamics: Magistrates theoretically had the same powers but could prohibit each other's actions. • Edicts: Consuls had the highest position, followed by praetors and aediles who could issue rules. 4. Legislative Process: • People's Role: Centuriae and tribes enacted laws. • Approval Process: People could approve or reject propositions brought by magistrates or tribuni plebis. • Voting: Initially oral, later written and secret with ballots. 5. Censors: • Role: Judging the morality of citizens. • Power: Evaluated behavior, could declare infamia (resulting in civil death). • Census: Conducted every five years to list citizens, assess wealth, and evaluate morality. • Election: Extraordinary magistrates elected every 1.5 years. 6. Senate: • Composition: Assembly of past magistrates. • Function: Advised and counseled the king in the Monarchy, later served as an advisory body. • Members: Elders and most important individuals in Roman society. The Roman Republic featured a complex power structure with magistrates, the people, censors, and the senate playing distinctive roles in governance, legislation, and moral judgment. 3.Roman Empire: Transition and Characteristics Citizenship and Governance (49 B.C. - 212 A.C.): 1. Citizenship Structure: • Roman Empire Organization: Divided into Roman cities, allied cities, and provinces/colonies. • Allied Cities: Maintained their own citizenship and laws. • Provinces: Directly ruled by Rome, inhabitants had no citizenship (called "apolidies"). • Change in 212 A.C.: Emperor Caracalla granted citizenship to all inhabitants. 2. Decline of Republican Institutions (40-50 A.C.): • Loss of Importance: Republican institutions gradually lost significance during the empire. • Magistrates: Last state laws elected by the people occurred around 40-50 A.C. • Replacement: Magistrates of the emperors took precedence in provinces like Egypt and Palestine. 3. Imperial Magistrates and Consolidation of Power: • Governor Positions: Provinces governed by imperial magistrates like the Praefectus and Procurator. • Power Shift: Imperial institutions gained prominence over republican ones. • Emperor's Powers: Cumulation of imperium (military and civil authority) and potestas (representatives' power). • Potestas and Imperium Unification: Emperor unified these powers, which were separate in the republic. • Term Limits: Republican magistrates had term limits, but emperors held power for life. 4. Role and Authority of the Emperor: • Legislation: Emperors enacted constitutions (edicts). • Granting of Imperium: Initially granted by the people, later by the senate (after 50-70 A.C.). • Senate's Role: Senate continued to have a role; Senatus Consulta were rules enacted by the senate (40 A.C. onwards). • Imperial Magistrate: Emperor at the pinnacle of power, holding both imperium and potestas. • During wartime, magistrates sometimes granted citizenship to those who surrendered, but discrepancies in granting and recognizing citizenship were common. Loss of Roman Citizenship: Roman citizenship could be lost through various means. The three chief ways were: 1. War Imprisonment: • If a Roman citizen was captured during a war, they might lose their citizenship. 2. Acquiring Foreign Citizenship: • Moving willingly to a foreign city resulted in the immediate loss of Roman citizenship. • Leaving Rome triggered this loss. 3. Escaping to Avoid Death Penalty (Exilium): • Roman citizens could escape to a foreign city to avoid facing a death penalty. For allied cities (different from the Latins), there were three categories: • Treaty Cities: • Governed by a treaty between Rome and the foreign city, but the treaty did not grant connubium (right to marry a Roman citizen) or the right to move to Rome. • Autonomous Cities: • Cities whose autonomy was recognized by Rome, but without a formal treaty between the two. • Cities under Roman Influence (De Facto): • Cities that continued to live under Roman statutes and law/magistrates but without a formal grant by Rome. In legal matters between Romans and foreigners, the applicable law depended on: • Agreements between the parties involved. • If no agreement was in place, it depended on the judge's discretion. A Roman judge might apply Roman law, and vice versa. Regarding jurisdiction: • Actions would typically be brought before the judge of the ally (different country/city). • Citizens living in the Roman Empire without citizenship (Apolides) were subject to Roman rules and had no right to their own judge; their cases were handled by a Roman governor. Status Libertatis (Status of Freedom) and Slavery in Roman Society: According to Roman jurists, every human being was considered free by nature, and slavery was seen as contrary to natural law. However, slavery was recognized by international law. 1. Born into Slavery: • A person was considered born a slave if their mother was a slave at the time of their birth. • During the Empire, an action was enacted to facilitate access to liberty: if the mother was free between conception and birth, the offspring would be born free. • If a Roman freeborn female had a relationship with a slave, and the slave's master unsuccessfully summoned the woman three times to end the relationship, the woman would be enslaved, and the offspring would be born a slave. 2. Becoming a Slave: • Slavery often resulted from war imprisonment, with escape or liberation by enemies being the two main ways to regain freedom. • Postliminium: This was the right to regain Roman citizenship and freedom for Roman citizens enslaved abroad. • This right also applied to strangers, but the situation had to be reversed. • During the Republican period, postliminium was applicable when Roman citizens moved abroad, acquired foreign citizenship, and then returned to Rome. This allowed them to regain Roman citizenship. • Losing Roman citizenship meant the loss of all possessions, which would then go to offspring or relatives. • During the Empire, double citizenship was recognized, allowing individuals to hold both Roman and foreign citizenship simultaneously. Law of Imprisonment: 1. When caught by the enemy, a Roman citizen could return to Rome under certain conditions. • Surrendering and giving up weapons would forfeit the right to return. • If freed but continued living in a foreign city, returning to Rome could result in being killed by Roman citizens. • Sold abroad as a slave by one's father or by the Roman people as a punishment for a committed crime. • Abandoned to enemies for a fault committed during war; abandonment was not a sale, and the individual remained free but lost citizenship. 2. Legal Effects of Postliminium: • Before 80 B.C., regaining citizenship and freedom occurred upon returning to Rome. • After 80 B.C., the Lex Cornelia ensured that the will of Roman citizens remained valid, and goods would go to the people named in the will if the individual died at the hands of enemies. Legal Changes and Master's Liability: 1. Changes in Master's Power: • The power of life and death over slaves diminished during the empire and was abolished by Justinian. • A slave harshly treated by their master had the right to escape and seek freedom. 2. Economic Liability of the Master: • The master became economically liable for faults committed by slaves, and compensatory payments replaced abandonment to victims. • Actions like actio institoria/exercitoria, actio quod iussu, actio de peculio, and actio de in rem verso held masters liable for slave actions. 3. Applicability to Offspring: • These rules generally applied to the offspring as well, ensuring a system of economic and personal obligations between masters and slaves (now freed). Status Familiae in Roman Society: 1. Pater Familias: • The head of the family household was the Pater Familias, typically the most ancient male ancestor. • The Pater Familias had authority and control over the family, including children and slaves. 2. Generation of Roman Families: • A Roman family was considered legitimate only if it resulted from marriage. • Offspring born outside of marriage were regarded as autonomous individuals not under the power of the family's head. 3. Criteria for Determining Pater Familias: • The Pater Familias was often the oldest male ancestor in the family. • High mortality rates and frequent wars meant that the eldest male ancestor, even a grandfather, could hold the position of Pater Familias. 4. Marriage as a Legitimizing Factor: • Valid marriages followed established patterns or involved cohabitation. • Offspring born within a valid marriage were considered under the power of the Pater Familias. 5. Power and Authority of Pater Familias: • The Pater Familias had significant authority over family members, including children and slaves. • This authority extended to matters of discipline, decisions regarding marriages, and other family-related issues. 6. Autonomy of Offspring Born Outside Marriage: • Children born outside the bonds of marriage were regarded as autonomous individuals, not subject to the power of the Pater Familias. Personal and Financial Relationships in Roman Families: Personal Relationship: 1. Power of the Pater Familias: • The most ancient ancestor (Pater Familias) had the power of life and death over his sons and daughters. • Moral control acted as a limitation, and serious motivations were required to justify such actions. 2. Limitation of Power during the Empire: • Over time, the power of life and death over offspring was limited and eventually became a criminal offense during the Empire. 3. Custody and Release: • Sons and daughters were under the custody of the Pater Familias, a lifetime power passed from grandfather to father. • Sons could be freed from this custody through the grandfather or, in a particular case, after the third sale of sons. 4. Fictitious Sales: • To free a son from custody, fathers sometimes engaged in fictitious sales, faking the three required sales. 5. Becoming a Patron: • Upon freeing someone, the liberator (ancestor) became their patron (patronus). 6. Inheritance Rights: • According to the Twelve Tables, a patron had the right to inherit the goods of a freed person if they died without a will. 7. Emancipation Process: • The process of emancipation involved the sale and subsequent freeing of the son by a third party, making the male ancestor a patronus. Financial Relationship: 1. Financial Independence: • During the Empire, sons generally had the power to close contracts and were responsible for their own financial dealings. 2. Senate Decree on Loans: • A Senate decree prohibited lending money to sons unless authorized by the head of the household. 3. Types of Peculium: • Peculium Castrense: Goods acquired by a son while in the army. • Peculium Quasi Castrense: Similar to castrense, but the goods were acquired by a civil servant. • Peculium Adventicium: Goods transferred to the son from the mother by will. 4. Power over Peculium: • In the case of peculium, the son owned the goods, and the ancestor had only the power of administration (usus fructus). Consequences of the First Two Types of Marriage: 1. Transfer to Husband's Family: • In Confarreation and Coemptio, the woman would pass to the family of the husband. • Legal relationships with her own family were severed. 2. Woman in Manu: • The woman, after marriage, was considered "woman in manu," implying that she belonged to the family of her husband. • She did not have the right to life and death over her, which distinguished her from positions like potestas over offspring or slaves. 3. Inheritance and Death: • If the husband was not the head of the family, the woman had to wait for her husband's death to inherit. • Death was enough to terminate the marriage, often occurring when the husband died. 4. Ending Marriage by Divorce: • Divorce, although present, was not highly appreciated by the Romans. • To terminate a marriage, a contrary act opposing the initial marriage act was required. • Two methods for ending marriages: 1. Diffareatio: Used to terminate marriages closed by Confarreatio. 2. Remancipatio (Emancipation of the Woman): • Different from the emancipation of offspring; it was more accurately termed remancipatio. • The woman was acquired back by her natural father. • This act was contrary to Coemptio. 5. After Divorce or Husband's Death: • The woman returned to her family. • She became autonomous, free from any marital power in the case of Diffareatio. • In Remancipatio, she became autonomous but with complications regarding her goods. 6. Guardianship and Goods: • Women were subject to guardianship throughout their lives, and a guardian (usually a close relative) administered their goods. • If the woman had goods after Diffareatio, she would be free but still subject to guardianship. • In Remancipatio, her goods would be under the administration of a guardian. 7. Complications in Case of Second Marriage: • If there was a second marriage, the woman's goods would pass to the family of the new husband. • This added complexity, especially if the woman had already inherited goods from her original family. Consequences of the Third Type of Marriage (Free Marriage): 1. Celebration and Customs: • Free marriage had no binding type of celebration, but it was customary to celebrate with a feast. • The feast occurred before the woman entered the family of the groom, signifying a formal partnership. • Customarily, the woman would pass to the husband's family after one year of living together. 2. Avoiding Transfer to Husband's Family: • The woman had the chance to avoid immediate transfer to the husband's family. • If she did not sleep in the husband's family house for three nights in a row each year, the manus (power) would not be activated. • After 50 A.C., this requirement was abolished by law and customs during the Roman Empire. 3. Terminating Free Marriage: • There was no contrary act required to terminate a free marriage. • Jurists debated whether a free type of termination or a formal declaration to the wife or husband was necessary. • The necessity of a declaration was discussed, especially in cases where one party started a new relationship. • Probably, a declaration to the other party was necessary; without it, the marriage would still be considered valid. 4. Power to Terminate: • The two heads of the family had the power to terminate the marriage. • During the later period (from 200 A.C.), jurists argued that happy couples should not be interfered with, giving the couple the power to block the declaration of the head of the family. 5. Prerequisites for Termination: • There were prerequisites for termination, such as the woman being at least 12 and the man 14 years old. • Augustus's laws established a duty to marry for young people, and failure to comply resulted in limits on the right of inheritance. 6. Financial Relationship: • The basic rule in Roman marriage was the separation of goods, even during the Justinian period. • Once the woman passed to the husband's family, she did not have personal belongings until after the husband's death, shared with the children. • If she did not pass to the husband's family, two situations arose: • Under the power of the ancestor. • Autonomous with her own goods (ownership was not transferred to the husband). • While customary, there was no duty to follow this custom. The woman could give administration of her goods to her husband, but she did not transfer ownership. • The husband could retain a portion of the dowry for expenses incurred on the woman's goods, such as clothing. • Goods Donated by Husband: • The husband had the right to keep an amount of the dowry for goods he donated to the bride. • Goods Stolen or Taken Away by the Bride: • In cases where the bride took away goods at the divorce, the husband could keep a portion of the dowry, especially for items stolen or not rightfully hers. • Unfair Behavior of the Woman: • The husband could retain an amount of the dowry for the unfair behavior of the woman, often related to adultery. 3. Establishment of Dowry: • Promise of Dowry (Dotis Dictio): • Declared by the party establishing the rule (either the bride, groom, or a third party). This was the most ancient form. • Promise of Dowry by Agreement (Dotis Promissio): • An oral agreement between the parties involved. The husband's family would approach the head of the woman's family, the woman herself, or a third party to establish the dowry. • Transfer of Dowry with No Previous Promise (Dotis Datio): • The dowry was transferred without a prior promise or formal agreement. Guardianship in Roman Law: Conditions for Guardianship: Guardianship was appointed when an autonomous person with their own goods required support due to specific conditions: 1. Age: Young individuals who had not yet reached adult age. 2. Mental Disability: Individuals with mental disabilities. 3. Sexual Condition: For example, women were often under guardianship throughout their lives, at least in practice. Establishment of Adultness: • There were debates between the Sabiniani and the Proculiani regarding the age at which someone reached adulthood. • The prevailing view was that females were considered adults at the age of 12, and males at the age of 14. Powers of Guardians: 1. Administration of Goods: • Guardians had the power to administer the goods of their wards. • This right became prominent around 50-100 B.C., and guardians often intervened in legal acts to provide legal strength. • The young wards could acquire benefits without obligations, leading to potential exploitation by third parties. • Presence of the guardian ensured the validity of the act and protected the minor from exploitation. 2. Juridical Acts: • Guardians had the right to be present when the ward performed certain juridical acts, although this wasn't common. • Minors couldn't make valid wills, and the presence of a guardian assured the legality of acts. 3. Kinds of Guardianship: • Statutory Guardianship: Provided by law, usually appointing the closest relative (often the uncle) as the guardian. • Testamentary Guardianship: Appointed by the male ancestor in his will. • Magisterial Guardianship: Established by the magistrate when other guardians were unavailable or removed from office. Magisterial Guardianship Law (210 B.C.): • Addressed situations where a guardian was removed from office, allowing the magistrate to appoint a new guardian. Third Case - Women's Guardianship (Continued): • Women were subject to lifelong guardianship during the early Roman period. However, over time, this guardianship was gradually abolished. • Noteworthy points regarding women's guardianship: • Women had more authority over their goods compared to minors. They could independently close many juridical acts. However, they couldn't make a valid will without the assistance of their guardian. • Augustus freed free women (those always free, not born as slaves) with three children from guardianship. For liberta (formerly enslaved women), four children were required. • Despite the statutory guardianship being officially abolished, Gaius indicated that the practical application of this guardianship was limited during the Roman Empire. Second Case - Guardianship for the Insane (Continued): • The process of determining whether someone was insane lacked a formal declaration. When someone was deemed insane, they lost the power to close any legal acts, and the guardian assumed full authority over their assets. Fourth Case - Guardianship of Prodigals (Spendthrifts) (Continued): • Prodigals, individuals who recklessly wasted their wealth, were subject to guardianship. Magistrates issued declarations to prevent prodigals from spending their goods, necessitating the appointment of a guardian. • According to the Twelve Tables, the guardian was typically the closest relative. • Prodigals were restricted from closing significant juridical acts; they could only manage daily transactions like buying groceries. Guardianship on Minors Under 25 Years Old (Established During the Empire) - Lex Laetoria: • Lex Laetoria (around 194 B.C.) imposed penalties on third parties closing deals with young individuals under 25 without the presence of their guardian. • Praetor, around 50 B.C., provided young adults with two legal remedies: • The ability to request the nullification of acts closed with third parties. • Empowered the minor to refuse compliance with duties when sued by a third party, known as the "action exception." • Guardianship was introduced during the empire, granting guardians the power to administer goods and be present at the juridical acts of minors to provide legal strength. Usucapio Becomes Prescription: • Over time, the concept of usucapio transformed into prescription (preascriptio longi temporis). • The time required for prescription varied: 10 years if both the possessor and the original owner lived in the same city (province for Justinian), and 20 years if they lived in different places. • In the later empire, a period of 30 years applied for cases of longissimi temporis. • Initially, the protection provided by usucapio was directed more towards third parties than the true owner. Action Publiciana: • Introduced around 67 B.C., the action Publiciana had two main purposes: 1. To protect those acquiring res mancipi through simple delivery (traditio) instead of mancipatio or in iure cessio: • For instance, protecting individuals who acquired slaves through simple delivery. If they faced a claim by the original owner, they could use the action Publiciana to pretend ownership for the required usucapio period. 2. To protect those acquiring goods from someone who is not the true owner: • If someone bought a good from a seller who was not the real owner, and the buyer lost possession, the action Publiciana could be used. • It operated on a fiction, assuming the passage of time to confer full ownership (usucapio). • The action Publiciana could be brought against the original owner, who might raise an exceptio iusti dominii, asserting ownership according to ius Quiritium. The buyer could counter with replicatio doli, claiming fraud. • The protection provided by the action Publiciana was based on the fiction of the lapse of one year (time required for usucapio) and was not available against the real owner. A stolen thing could never be usucapt. • The action Publiciana was applicable when the buyer was not aware of the theft or other issues, serving as a legal remedy for those who found themselves in possession of goods under certain circumstances. However, proving these conditions could be challenging. Means of Acquiring Ownership Available for Strangers (Continued): 1. Traditio (Delivery): • Traditio refers to the plain delivery of goods. While it was not applicable to res mancipi (specific items like slaves, land, and buildings), it was adopted for things different from res mancipi, such as movables. 2. Occupatio (Occupation): • Acquiring a good that was considered nobody’s property, either because it was never in possession of anyone or because it was abandoned by the previous owner. • Different schools of thought (Sabiniani and Peculiars) had varying perspectives on the ownership of abandoned res mancipi. 3. Accessio (Accession): • Acquiring ownership of something through its attachment to something principal. • Two types of accessio: • Accessio of Movables to Immovables (lands): This includes buildings, trees, and plants. For example, a treasure hidden in a land would be owned by the owner of the land until the empire era, where emperors recognized a share for the one who found the treasure. • Accessio of Immovables to Immovables (Fluvial Activity): Involves changes in the course of rivers, such as alluvio (materials left on a riverbank) and avulsio (island born into the sea). • A similar concept to accessio is specificatio, involving the creation of something new from materials owned by someone else. Justinian's view was that ownership would belong to the owner of the material if it couldn't revert. 4. Finding of a Treasure (Inventio): • A treasure refers to something valuable hidden somewhere whose ownership cannot be proven by anyone. • Until 130 B.C., the general rule was that the ownership of a treasure belonged to the owner of the land. However, during the empire era, emperors recognized a share for those who found the treasure, and Emperor Hadrian even allocated a part to public ownership. 5. Confusio: • Confusio occurs when something identical is mixed up, resulting in co-ownership. This means that the previously separate items lose their individual identities, and the owners become co-owners of the mixed property. Ownership Rules for Immovables: • The 12 Tables included rules about neighboring lands, such as maintaining a distance of one meter and a half between buildings. This distance was a respect zone to prevent disputes between neighbors. • The same rule applied to lands, ensuring a free zone of one meter and a half between lands to avoid conflicts. • Limits were set for the planting of trees. The leaves of the tree couldn't extend into the neighbor's land beyond 4 meters and a half. If they did, the neighbor had the right to cut the tree for the excessive part. 3. Freeing a Slave in Usufructus: • The question of who had the power to free a slave—either the owner or the one with usufructus—remained unclear. Some considered that freeing a slave while in usufructus amounted to abandoning ownership, while others believed the act of freedom was void, and the ownership remained with the one holding usufructus. 4. Peculium and Acquired Goods: • If a slave in usufructus acquired something with their peculium (property or funds under the control of a slave), it was generally considered that the goods belonged to the one with usufructus. However, specific cases were not always clear. 5. Slave as Heir: • If a slave in usufructus was named as an heir in a will, the question of whether the acquired goods would belong to the owner or the usufructuary remained uncertain and was a subject of debate. Settlement and Termination of Usufructus in Roman Law: Settlement of Usufructus: 1. Legacy in a Will (Testamentary Usufructus): • The most common way to settle usufructus was through a legacy in a will (testamentary usufructus). In this scenario, the owner (testator) would include a provision in their will granting usufructuary rights to a specific individual. For instance, a husband might leave the family house to his wife through usufructus. If the heir did not wish to honor the usufruct, the usufructuary could file a claim in court. However, the praetor would often require the usufructuary to provide a guarantee to ensure responsible use and prevent damage to the property. 2. Iure Cessio: • Usufructus could be settled through iure cessio, a legal process where the person desiring usufructus made a declaration in front of a magistrate, stating their right to usufructus on a particular property. If the owner did not oppose or raise objections, the magistrate would issue an addictio, confirming the right to usufructus. 3. Mancipatio: • Mancipatio, a formal Roman legal ceremony, could also be used to settle usufructus. In cases where the transferor intended to retain usufructus for their lifetime, such as with an apartment, mancipatio could facilitate the transfer. Termination of Usufructus: 1. Lifetime Termination: • The vast majority of usufructus were established for the lifetime of the usufructuary, not the owner. This ensured that the ownership would not be permanently deprived of its features. Upon the death of the usufructuary, the property reverted to the owner or passed to other designated heirs. 2. Time-Limited Usufructus: • In some cases, usufructus could be established with a predetermined time limit, such as 20 years. This allowed for a specific duration during which the usufructuary had rights to use and enjoy the property. After the designated period, usufructus would naturally terminate. Predial Servitudes in Roman Law: Recap and Additional Points: 1. Predial Servitudes on Lands: • Rights Granted: 1. Right of Passage: Allows the holder to pass through someone else's land, either by foot, horse, carriage, or donkey. 2. Right to Channel Water: Grants the right to bring water from someone else's land to one's own. 3. Right of Pasturage: Enables the holder to allow animals to graze on someone else's land. • Nature of Rights: • Predial servitudes are real rights, meaning they are attached to the land itself. Upon the death of the holder or the transfer of land ownership, the servitudes pass to the heir or the new owner. • Ancient Servitudes: • The most ancient predial servitudes on land, such as the right of passage and the right to channel water, are considered res mancipi. These could be settled through a formal Roman legal ceremony called mancipatio. • Other Predial Servitudes: • All other predial servitudes were typically settled through iure cessio. The claimant would present their case in front of the praetor, and if the owner did not object, the praetor would declare the addictio, confirming the right. 2. Predial Servitudes on Buildings (Servitudes Urbanae): • As the owner of the dominant property, one has the right to impose restrictions on the neighboring building (servient property). • Example: The owner of a building may restrict the construction of additional floors on the neighboring building to preserve their right to a clear view. Termination of Predial Servitudes: • Lifetime Nature: Predial servitudes are not terminated by the death of the holder. Instead, they pass to the heir or new owner. • Non Usus (Non-Usage): • Non-usage or failure to exercise the right for a specified period (often two years) could lead to termination. • In the case of predial servitude urbana, if the neighbor builds a new floor, the right is lost if the owner doesn't raise objections within two years. • Occupation by Water: • Views differed on the termination of predial servitudes in case the land was flooded by water. • One opinion suggested immediate termination upon occupation by water, while Pomponius argued for termination after two years of flooding. Law of Obligations in Roman Law: Overview 1. Sources of Obligation: • Obligations are duties or responsibilities that one party has toward another. They can arise from: 1. Agreement (Contract): Arises from mutual consent and agreement between parties. 2. Fault (Tort): Arises from wrongdoing or violation of the law, leading to a duty to compensate for the harm caused. 3. Other Causes (Quasi-contracts and Quasi-faults): Gaius introduced a third category, not detailed but representing obligations that don't fit strictly into contracts or faults. 2. Justinian's Classification: • Justinian classified obligations into three main categories: 1. Contract: Arises from a voluntary agreement between parties. 2. Tort: Arises from wrongful acts or violations of the law. 3. Quasi-contract and Quasi-fault: Acts similar to contracts or faults but not fitting precisely into either category. 3. General Classification: • Two general classifications of obligations: Obligation by Delivery in Roman Law: The Mutuum (Loan) and Related Contracts 1. Introduction: • The most ancient form of obligation arising from delivery is the mutuum, known as a loan. • The mutuum involves the delivery of an item (e.g., money) based on an agreement, creating an obligation. 2. Nature of the Roman Loan (Mutuum): • The term "mutuum" indicates the transformation of ownership, signifying that what was once mine becomes yours. • The loan is closed through the act of delivery, making it a gratuitous loan without rates of interest. 3. Interest Rates and Separate Agreements: • If parties agreed upon interest rates, these rates had to be established through a separate agreement, not within the loan agreement. • Formal contracts by words could be used to include all terms, making the obligation more binding and eliminating the right to change one's mind. 4. Nexum and Mancipatio: • In ancient times, loans might have been performed through a mancipatio, a form of symbolic sale. • The nexum, an ancient form of loan, was abolished around 300 B.C. Its exact nature is unclear, and Publius Mucius found it puzzling. 5. Evolution to Loan by Simple Delivery: • Around 250/260 B.C., the loan by simple delivery emerged, simplifying the loan process. • This form of loan allowed for a clearer and more straightforward transaction compared to mancipatio or nexum. 6. Agreement in Instalments and Roman Legal Process: • Agreements with instalments created complexities in Roman law. • Failure to pay the first instalment did not allow the creditor to demand the entire amount but only the expired instalments. • Roman legal procedures required precise clarification during trials; otherwise, the creditor risked losing all rights. 7. Fungible Goods and Three Acts: • Fungible goods, those replaceable by the same quantity and quality, were often the object of loans. • Three acts related to loans: • Pledge (Pignus): Considered as a contract after the 2nd century A.C., where the duty to return the pledge emphasized the contract aspect. • Lend and Borrow (Commodatum): Borrowing the same item and not returning it in the agreed condition became a breach of contract after the 2nd century A.C. • Deposit (Depositum): Considered a contract since the 2nd century A.C., with the failure to return or use the deposit constituting a breach of contract. 8. Gaius's Perspective (Mid-2nd Century A.C.): • Gaius, in his textbook, recognized the loan as a contract closed through delivery (traditio). Obligation by Words (Stipulation=Sponsio) and Surety in Roman Law 1. Introduction: • Obligation by words involves the performance of the obligation through the pronunciation of specific words. • Stipulation and sponsio are forms of obligation by words, with sponsio involving the use of the verb "spondere" (to assure, guarantee, promise). 2. Sponsio - The Most Ancient Form: • Sponsio is limited to Roman citizens and requires the use of the verb "spondere" in both the question and the answer. • The content of sponsio is abstract and agreed upon by the parties. • It is not a mutual contract but a contract binding from one party. 3. Features of Stipulation: • Stipulation can be performed through any words agreed upon by the parties. • It is not inherently a mutual contract but can be joined together through specific means. • Until 300 A.C., stipulation was not typically in a written form, but a constitution by Emperor Leo in 472 A.C. allowed written stipulations. 4. Stipulation for Strangers: • Stipulation was available to strangers, unlike sponsio. • There was no obligation to use the verb "spondere"; any performing verb could be employed. 5. Surety of the Obligation: • Sureties were related to stipulation and were closed through stipulation. • Personal sureties involved a third party giving a guarantee through sponsio stipulation. 6. Three Types of Personal Sureties: 1. Sponsio: • Did not pass to the heir. • Expired after 2 years. • Implied the duty to perform the same obligation taken by the debtor in the sponsio stipulatio. • Only obligations arising from sponsio could be guaranteed. • The sponsor had a direct action against the main debtor. 2. Fidepromissio: • Did not pass to the heirs. • Expired after 2 years. • Implied the duty to perform the same obligation taken by the debtor in the sponsio stipulatio (only in sponsio, not in the loan). • No direct action against the main debtor. 3. Fideiussios: • Available for strangers. • Available for obligations not closed orally, unlike sponsio and fidepromissio. • Passed to the heirs. • Did not expire after 2 years. • In the Justinian period, the guarantor (fideiussor) could ask the praetor to sue the debtor. • The guarantor could promise not to perform the same obligation as the debtor. • Guaranteed obligations not arising from sponsio/stipulatio, including loans, sales, etc. 7. Real Surety - The Pledge: