Roman Law Definitions from Notes

Question 0

Ius gentium

Answer 0

That law which is applicable to all people, and thus non-citizens. This law was produced by acceptance, in the jurisdictional activity of praetorians, of a series of customs.

This law is marked by its applicability and informality.

Question 1

Ius civile

Answer 1

Law that governs roman citizens. This law comes from laws, plebisciti, senatoconsulti, decreti dei principi, and authority of the jurists.

Marked by its (1) exclusivity and (2) ritualism

Question 2

Ius praetorian

Answer 2

The law introduced by praetorians to aid or correct, for public utility, the ius civile. The principle font of these laws are the edicts of the magistrates. The praetor can allow an action to proceed. He can deny this action directly through a denegatio action is or he can deny it indirectly through an exceptio.

Question 3

Formulae con intentio in factum concepta

Answer 3

The diritto praetorio created fictions of law in order to give concessions by means of these types of formulas. Through this and exceptio they allowed room for aequitas.

Question 4

Ius naturale

Answer 4

That law which nature has taught to all animated things. Ulpiano stated this by saying “ live honestly, do not harm others, and give to all that which is theirs.” Contrary to our understanding today, the Romans never imagined a hierarchical relationship between natural law and civil law.

Question 5

What are the 2 distinct phases of the processo formulare

Answer 5

In iure and apud iudicium

Question 6

Phase “in iure”

Answer 6

This first phase ends with the litis contestatio which sets the term of the debate which will be decided by the judge

Question 7

Iudex

Answer 7

A private citizen chosen in common by the actor and respondent.

Other definitions say: the “judge,” an unpaid private person chosen from the list (album) drawn up according to wealth to decide a case referred to him by the praetor. If the case was heard by a panel of iudices, they were known as recuperatores.

Question 8

Phase “apud iudicium”

Answer 8

This phase finished the sentence. The sentence given by the judge could not be appealed.

Question 9

Role of the magistrate

Answer 9

Assisted during the first phase in setting the litis contestatio

Question 10

Construction of the litis

Answer 10

Specific ritual formulas had to be combined to create a valid litis. Any mistake negated the case. This formula had four parts: (1) demonstratio (2) intentio (3) adiudicatio (4) condemnatio

Question 11

Demonstratio

Answer 11

The part of the litis inserted at the beginning to describe the material of the controversy

Question 12

Intentio

Answer 12

The part of the litis where the actor states his claim

Question 13

What are the 3 types of intentio for the litis.

Answer 13

(1) actio in personam for a determined sum in money
(2) actio in personam to do or give something. This is an uncertain/undetermined claim in which the restitution is at the discretion of the judge. (Dare/facere)
(3) actio in rem for restitution of something (rei vindicatio)

Question 14

Adiudicatio

Answer 14

The part of the litis that gives the judge the power to attribute the property or other real right with the sentence

Question 15

Condemnatio

Answer 15

The part of the litis that gives the judge the power to condemn or absolve. The condemnation must always be expressed in terms of money which is specifc or indeterminate depending on the intentio. For actio in rem and in certain actio in personam there must be an arbitrary clause of restitution. Sometimes, praetors would establish a taxatio, a maximum sum that the judge could give in the condemnation.

Question 16

Praeiudiciales

Answer 16

A litis that only included the intentio. This could only be used in situations foreseen in the edicts. Coudl only be used to ascertain status, and not for a real action.

Question 17

Praescriptio pro actore

Answer 17

Praescriptions limited the examination of the judge. This eliminated the risk of pluris petitio and it eliminated the risk of being tried for a greater amount later on.

Question 18

Exceptio

Answer 18

a clause of defense allowed by the praetor in a defendant’s response under the formulary system. For example, exceptio litis dividuae which opposed the dividing of a litis. They are always redacted in a contrary form which affirms the respondent (parte conventa). Exceptions could be created by the praetor. Other exceptions found their foundation in ius civile. Peremptory exceptions are perpetual and dilatory exceptions have a limit for a certain time period.

Question 19

Ius edicendi

Answer 19

A power of the disposition of the magistrates to issue edicts which stabilized the rules that would be followed in their jurisdictional activity. These were published in the forum as “tabulae dealbatae” which showed the words which must be said in black and the rituals which must be followed written in red (rubricae). These “actiones” were called “edictales” because they were published by the annual edicts of the magistrates.

Question 20

Ratum non habeo

Answer 20

Statement used to say that an action was not considered valid and efficacious

Question 21

Restitutio in integrum

Answer 21

An edictales clause which allowed a return to a “pristine state”. Sometimes given for ain act done under fear.

Question 22

Lex Cornelia

Answer 22

A reform which made edit necessary to affix the edictales in public at the beginning of the ministry of every magistrate. This was to keep the texts from changing and to allow some control by the people and the institutions of the jurisdictional activites of the praetorians.

Question 23

Ius honorarium

Answer 23

the law developed in edicts issued by the praetors during the Republic and early Empire, aiding, supplementing or amending existing rules or procedures of the ius civile. It was finalized in the 2nd century A.D. in the Edictum Perpetuum. The procedures developed by the praetors (the formulary system) were superseded in the 3rd century by the cognitiones.

Question 24

Actio in rem

Answer 24

The attempt to vindicate a right over an object. In the “intentio” the thing was mentioned and the case was in a sense against all (regarding omnes). The name of the respondent was only mentioned in the condemnatio.

Question 25

Actiones in personam

Answer 25

Against a person bound to the plaintiff by contract or delict. The name of the respondent was mentioned in the “intentio”

Question 26

Actiones civile

Answer 26

Found its fundament in ius civile

Question 27

Actiones honorariae

Answer 27

Action that found its fundament in the ius honorariae, the jurisidiction all power of the praetor. These actions must always be introduced by the clause which stated the base of the action given by the edictales. The phrase began “iudicium Dabo” or “actionem dabo”.

Question 28

Usufructus

Answer 28

the right to use of the property of another and take its fruits or profit (fructus) without diminishing its capital value.

Question 29

Accusatio

Answer 29

the bringing of a criminal charge, normally (until the early Empire) by a private citizen who, acting as the accuser (delator) lodged a complaint with a magistrate. If accepted, the magistrate would register the charge (inscriptio), which could not then be withdrawn without permission of the court.

Question 30

actio in factum

Answer 30

an action given by the praetor on the facts of the case alone where no standard civil law action was applicable.

Question 31

Adoptio

Answer 31

an adoption where a dependent person (alieni iuris) is transferred to one family to another, involving the change of paterfamilias. This uses mancipatio, manumissio vindicta, and in iure cessio. Specifically, it goes like this…. Mancipatio to manumission to mancipatio to manumission to mancipatio to rimancipatio. Then, if there is to be an adoption, there is a rivendica using in iure cessio. The real father does not deny that the new father has possesion, and the child falls under the Manu of the new paterfamilias. For those of a lower grade and women, a single mancipatio (not the three used for roman make citizens below majority) is sufficient.

Question 32

Adrogatio

Answer 32

an adoption where an independent person (sui iuris) is transferred from one family to another, coming under the patria potestas of the pater familias of his adoptive family. This could be done only to save a family from extinction. Originally, this could only be done at Rome by a vote of the people. If a father with a child was adopted by adrogatio, he and his children went under the power of the new paterfamilias. Generally, the adoptive father should be older with no children of his own. Takes on the new name, but retains some of his old name. For example, Caius Octavius became Caius Julius Caesar Octavianus

Question 33

bonae fidei iudicia

Answer 33

“actions of good faith” granted by the praetor for certain contractual relationships in which the iudex was required to take account of what ought to be done or given in good faith by the parties. Defenses (exceptiones) could be raised by the court even when not pled by the defendant.

Question 34

cognitio extra ordinem

Answer 34

a proceeding before an imperial magistrate rather than before the praetor and iudex. It replaced the classical formulary system in the 3rd century A.D.

Question 35

Condictio

Answer 35

a type of action alleging a debt without specifying the precise basis of the claim. It was available in both contractual and quasi-contractual claims.

Question 36

conubium

Answer 36

the right to contract a civil law marriage, possessed generally only by Roman citizens.

Question 37

curator

Answer 37

guardian for young persons over the age of puberty and under 25; and for the insane and the spendthrift.

Question 38

edictum

Answer 38

A proclamation of a magistrate. The praetor’s Edict in particular contained the various formulae for causes of action he intended to recognize during his tenure of office. The Edict became standardized and was given final form in the Edictum Perpetuum issued by Iulianus under the emperor Hadrian. It formed the basis of the ius honorarium.

Question 39

emancipatio

Answer 39

voluntary release from the patria potestas, breaking the agnatic relationship and conferring independence (sui iuris) on the person involved. Used mancipatio and manumissio vindicta to free the person involved from the paterfamilias.

Question 40

Formulary system

Answer 40

civil procedure introduced in the mid-Republic and continuing until the 3rd cent. A.D. (when it was superseded by cognitio system). The procedure was introduced by the praetors, who required the parties to formulate the issues in a case by a formal statement (formula), which was then passed on to the iudex for a determination of the facts. The various kinds of formulae recognized by the praetor would be set forth in his Edict.

Question 41

in iure cessio

Answer 41

a formal transfer of property in open court before the consul or praetor. Done by means of a fiction. The person to whom ownership was to be transferred claimed that the thing was his in the presence of the magistrate and the real owner. The magistrate called on the owner for defense. When the real owner said he had no defense or remained silent, the magistrate decreed (addixit) the thing to the claimant. A hereditas could be transferred in this way.

Question 42

mancipatio

Answer 42

the formal transfer of property by bronze and scales (per aes et libram). Only res mancipi may be so transferred. It was also the procedure for making a will, for the passing of a woman into marital subordination, for bringing people into bondage for the purpose of adoption or emancipation, or as the result of a noxal action.

Question 43

manumissio

Answer 43

the freeing of a slave. Also used for the release from bondage following emancipatio. Can be done by vindicta, censu, or testamento.

Question 44

manus

Answer 44

the power of the pater familias over his wife and his sons’ wives.

Question 45

noxal surrender

Answer 45

the handing over of a slave or animal as compensation to the victim of a delict committed by him.

Question 46

occupatio

Answer 46

acquisition of ownership by possession of a thing not previously owned or a thing abandoned by its owner.

Question 47

pater familias

Answer 47

the “head of the household,” holding the patria potestas over all descendants, male and female, through the male line (i.e., the agnatic family). He also had power over those in bondage through mancipatio (i.e., adopted sons and wives). Persons in his power were subject to his control in many matters, including life or death and marriage. They were incapable of owning property and everything they acquired passed to the pater familias. The powers of a pater familias did not cease until his death.

Question 48

patria potestas

Answer 48

the right of the pater familias over the persons and property of the members of his agnatic family and slaves. It included the right to put to death and entitlement to virtually all property and contractual rights acquired by his dependents.

Question 49

patronus

Answer 49

the former master of a slave. He had many rights over the freed slave (libertinus), including the performance of services (opera) and certain rights of inheritance. The freedman was obliged to show respect (obsequium) to his patron and was barred from bringing criminal actions against him or actions involving infamia.

Question 50

peculium

Answer 50

personal fund of a son or slave allowed by the pater familias (who retained full ownership of the money). A son did have full control over the peculium castrense (funds acquired while on military service).

Question 51

per aes et libram

Answer 51

the weighing out of copper or bronze necessary for a formal sale.

Question 52

perigrinus

Answer 52

anyone not a Roman citizen and therefore not entitled, normally, to the benefits of the ius civile.

Question 53

res mancipi

Answer 53

property subject to transfer by mancipatio (i.e., land subject to Roman ownership, slaves, beasts of draft and burden, and rustic servitudes belonging to land subject to Roman ownership). All other property is res nec mancipi and can be transferred by mere traditio.

Question 54

stipulatio

Answer 54

an enforceable verbal contract created by simple question (“Do you promise to pay me 10,000 sesterces?”) and answer (“I promise.”). No witnesses or writing are required, but both were customary. The normal action on a stipulatio was a condictio.

Question 55

sui iuris

Answer 55

a person who is not in the power of another. A person is in another’s power (alieni iuris) if he or she is in manu, in mancipio, or in patria potestate. All other persons are sui iuris and, if male, are patres familias. Persons sui iuris who were impubes (under age 14 for boys, 12 for girls) were subject to a tutor, those who were minores (under age 25) were subject to a curator.

Question 56

traditio

Answer 56

simple transfer of property, effective for acquiring ownership of all property except res mancipi.

Question 57

tutor

Answer 57

guardian for independent children under the age of puberty (impubes) and for independent women of any age.

Question 58

usus

Answer 58

the right to use the property of another without taking its fruits or profits. Also, a formless acquisition of marital power (manus) over the wife through an uninterrputed cohabitation for one year with the intention of living as husband and wife.

Question 59

vindicatio

Answer 59

an action for claiming ownership of property.

Question 60

Actiones honorariae: formulae ficticiae

Answer 60

A situation in which the magistrate or praetor adapted the formula by introducing a fictious element so that it could be extended to a case not previously considered

Question 61

Actiones honorariae: transposition of a subject

Answer 61

In using this method of modifying formulas, a person is mentioned in the condemnatio who is different than the person in the intentio. This could be used to bring a case against the patronus of a slave, for example.

Question 62

Iussum

Answer 62

Permission to someone under your authority to perform a certain legal act or a permission to a third party to conduct a transaction with someone under your authority at your expense

Question 63

Actio tributoria

Answer 63

An action against the patronus for any trading done with the slave or filiusfamilas peculium. The paterfamilias was only liable up to the amount of the peculium.

Question 64

Actiones noxales

Answer 64

If a child or slave committed theft or injury, the injured party had an actiones noxales against the pater familias, but not against the son or slave. The pater familias could pay the injured person or surrender the offender to pay back the debt.

Question 65

In integrum restitution es

Answer 65

The ability of the magistrate to remove the effects of an action that was completely valid according to civil law and return things back to where they were before they were modified by any juridical acts

Question 66

Missiones in possessionem

Answer 66

A coercive measure by the praetor in virtue of his imperium by which a claimant was authorized to enter into possession of his adversaries property in whole or in part

Question 67

Stipulationes praetoriae

Answer 67

A verbal contract entered into (see stipulation) which the praetor, at the request of the interested party, can impose completion under threat of a “denegatio actionis” or “missio in possessionem” if the contract is not fulfilled

Question 68

Cautio (usu)fructuaria

Answer 68

A security given by the usufructaria to the owner of the “res in usufructum” to guarantee that he will fulfill his duties and not abuse his rights as a usufructary

Question 69

Cautio damni infecti

Answer 69

A security given against foreseen damages. If, for example, damage was done to a building when no cautio damni infection had been accepted, a case could be run fictiously as if a cautio had been accepted.

Question 70

Persona

Answer 70

A subject if law. Strictly speaking, it is a designation of a functional class which determines the determining norms and juridic roles in which the individual can serve. The same person can be multiple persons (subject to diverse diritti) at the same time.

Question 71

Divisions of personhood

Answer 71

The primary distinction is slave or free (liberi). Within the liberi are the two classes of ingenui (born free) and liberti (those freed from slavery). In the liberti are 3 species: cittadini Romani, latini, and dediticii.

Question 72

Latini Iuniani

Answer 72

A lower level of freed person. Occurred if they were freed before 30 or freed in a non-solemn private manner without a magistrate. They didn’t have the right to transmit patrimony to their children, nor to receive testament, nor to transmit an intestato, nor to be made a tutor for a testament, nor to have the right of conubium. This meant no right to marry a roman citizen, no right to enter roman religious life, and thus no right to vote or serve in political office. There was the ability for them to become roman citizens through their children or through certain other methods (such as military service, serving as firemen, or paying a large sum).

Question 73

Dediticii

Answer 73

Freed men at a lower level than the Latini. Per the legge Aelia Sentia, they could never become latini or roman citizens. This is because during their servitude, they incurred grave sanctions or had indecorous behavior. Those who had penalties or been tortured for crimes or been in jail or forced to fight as a gladiator….

Question 74

Liberi

Answer 74

In status, they were personae. They could not be appraised at any price, could not be bought or sold, unless they were reduced from the status of being freed.

Question 75

Slaves

Answer 75

In status, they were personae et res. This, they could be bought, sold, given in Usufructus, inherited, etc..

Question 76

Hereditas

Answer 76

Succession to all the rights of the deceased

Question 77

Matrimoni cum conventione in manuum

Answer 77

Wife passes into the familia of the husband and falls under his power like a daughter.

Question 78

Matrimoni sine conventione

Answer 78

The woman does not enter into the husbands family. She is only wife and is not “materfamilias”. She would automatically become wife in magnum however if she lived under the same roof for one year. To avoid this, she had to leave the husbands house for three continuous days every year.

Question 79

Dominium

Answer 79

Dominium signifies quiritarian ownership of a thing; and dominus, or dominus legitimus, is the owner. Possessor is often used by Roman writers as equivalent to owner; but this is not a strictly correct use of the word.

The complete notion of property or ownership comprehends the determination of the things which may be the objects of ownership; the power which a man may have over such objects, both as to duration of time and extent of enjoyment; the modes in which ownership may be acquired and lost; the persons who are capable of acquiring, transferring, or losing ownership.

Question 80

Servitutes prediali (easements)

Answer 80

If the owner’s power over the thing is limited either way, that is, if his enjoyment of it is subject to the condition of not doing certain acts in order that some other person may have the benefit of such forbearance, or to the condition of allowing others to do certain acts, which limit his complete enjoyment of a thing, the thing is said “servire” to be subject to a “servitus.” This is opposed to complete dominium.

A man can only have a right to a servitus in another person’s property; and a servitus can only be in a corporeal thing. Viewed with respect to the owner of the thing, a Servitus either consists in his being restrained from doing certain acts to his property, which otherwise he might do; or it consists in his being bound to allow some other person to do something to the property, which such person might otherwise be prevented from doing. A Servitus never consists in the owner of the servient property being obliged to do any act to his property, though he may be under an obligatio to do acts which are necessary towards the enjoyment of the Servitus.

There were two classes of Servitutes. Either they had for their subject a definite person, who could exercise the right, in which case they were called Personal; and they ceased with the death of the person. Or they had for their subject another piece of property, as a house or land, and the person who exercised the Servitus exercised it in respect of his right to the house or land, which was its subject. Servitutes of the latter kind were called Praedial.

Praedial Servitutes imply the existence of two contiguous pieces of land, one of which owes a servitus to the other. Praedial Servitutes were either Praediorum Urbanorum or Rusticorum. Servitutes Urbanae are those which are for the advantage of an edifice as such, whether the advantage is derived from another building or simply a piece of land; Rusticae are those which are for the advantage of a piece of ground, as such, and mainly for the benefit of agriculture.

Examples of urban Servitutes: right to use a neighbors wall or edifice to support your own. Right to run rain water through a neighbors land or to draw from his rain water. Duty to not bound higher or to not obstruct a neighbors light etc…

Examples of rustic Servitutes: right to a footpath, right to a road, right to pasture, right to run an aqueduct, etc….