law of persons Flashcards
(186 cards)
1
Q
What is a legal person?
A
Your recognition by the law as a person
This includes the capacity to have rights and duties.
2
Q
What concept of legal personality emerged after the French Revolution?
A
The idea of inalienable rights acquired by birth
These rights cannot be removed.
3
Q
In Roman law, what was the focus regarding persons?
A
The person was not the main focus of the law, instead they were part of a unit (family)
They were seen as part of a unit, specifically the family.
4
Q
What philosophical idea influenced the Roman view of the family?
A
The family is the basis of the state
This idea was inherited from Greek philosophy.
5
Q
What is the division of persons in Roman law?
A
Some are slaves and some are free
This division reflects the legal status and rights of individuals.
6
Q
What did Justinian abolish in his legal decisions?
A
The idea of the dediticii
This was a category of individuals in Roman law.
7
Q
How can a person become a Roman citizen?
A
By being formally manumitted
This refers to the process of being freed from slavery.
8
Q
What are the two classifications of persons in Roman law?
A
Independent and dependent
This classification affects legal rights and duties.
9
Q
Who was the pater familias?
A
The head of the household (the patriarch), the oldest male
of both free and unfree people in the household
legally independent
This role included significant legal rights over family members and property.
10
Q
example of rights did the pater familias have? (3)
A
Control over property, veto marriage, manage dowry
This highlights the patriarchal structure in Roman family law.
11
Q
What was one of the severest penalties in Roman criminal law?
A
Loss of personhood
This indicates the high value placed on legal identity.
12
Q
Is liberty considered an inalienable right in Roman law?
A
No, liberty can change and is not inalienable
It can be bought or lost.
13
Q
what were the three categories of freedman
A
Roman citizens
Latins
dediticii
14
Q
what was the legal status of Roman citizens
A
could vote, marry, engage in commerce, be sued
etc.
15
Q
what was the legal status of a Latins
A
limited legal rights
could own property and ender contracts
but could not make a will, no political rights
16
Q
what was the legal status of the dediticii
A
no political or civil rights
could not live within 100 miles of Rome
could be re-enslaved or punished harshly
17
Q
What is the legal status of individuals who are not considered legal persons?
A
They become the objects of rights and duties - that of property.
18
Q
What defines someone as a slave in a legal context?
A
If they are subjected to the ownership of another person.
19
Q
What is the principle on which family law operates?
A
Agnation vs cognation
20
Q
What affects the status of a child in a servile condition?
A
The status of the mother
‘the child follows the offspring’
if the mother is servile, the child will be
if the mother is free, the child will be
21
Q
Can individuals legally exit slavery?
A
Yes, they could acquire Roman citizenship under the law of manumission.
22
Q
What is the ‘oath of the freedman’?
A
A commitment that ties the freedman to the family that owned them.
23
Q
What is the relationship between a freedman and the former head of the family?
A
The former head becomes a patron.
24
Q
How does civil law differ from natural law regarding freedom?
A
In civil law, men are not equal.
25
Can a marriage exist between a master and a slave?
No, it cannot exist.
26
How should a master treat a slave in terms of familial relationships?
As if they were a stepmother.
27
if a mother is in slavery when a child is conceived but free when she gives birth, what is the status of the child?
free
28
if a mother was free when the child was conceived but is enslaved when she gives birth, what is the status of the child
free
29
from what legal mode does the power of a master over a slave come from?
ius gentium mode
30
could a master be guilty of murdering their slave?
contradictory
Gaius - yes. treated as one who kills the slave of someone else
Theodosian code - masters shall fear no criminal investigation
31
if a slave killed someone on the orders of their master, were they liable?
no, until they became a freedman, then an action could be brought against them
32
What are the three components of status?
* Liberty
* Citizenship
* Family
## Footnote
Loss of any one of these components, especially liberty, has significant legal implications.
33
What is the implication of having no legal personality?
Considered a thing and not capable of acquiring rights
## Footnote
This means they are often treated as moveable property.
34
What was the trajectory of law during the imperial period regarding non-persons?
The state intervened to regulate the relationship
awareness of its complexity
## Footnote
This reflects an increasing awareness of the complexities involved.
35
What is agency in modern law?
A contract where one person acts on behalf of another
## Footnote
This includes various legal arrangements and responsibilities.
36
What is a key limitation in the law of agency regarding slaves?
Slaves are not considered legal persons
therefore they cannot technically enter into contracts such as agency
## Footnote
Therefore, the law of agency does not apply to them.
37
What does the term 'locus standii' refer to?
No standing in court
## Footnote
This means that third parties cannot sue in certain situations involving slaves.
38
What is the 'Peculium' in the context of slave ownership?
A certain asset grouping granted to a slave for their use
## Footnote
This allows the slave some autonomy in generating income.
39
How does peculium-based liability limit the owner's responsibility?
Claims against the owner can only be made up to the value of the peculium
(those who lost more money than the peculium is worth, lost money they cannot recover)
there is limited liability in general because the master does not give specific instructions and so has no specific knowledge of what his slave is doing
## Footnote
This protects the owner from unlimited liability.
40
What are the two industries where the business agent model manifests?
* Shipping industry
* Shopping industry
## Footnote
These are areas where business agents operate under varying degrees of authorization.
41
What type of liability arises from a business agent model?
Unfettered liability
so consequential loss could be included, depending on whether the slave has 'turned over' business information recently
if not, just the value of the peculium
## Footnote
This assumes that the owner knows what the agent is doing.
42
What is 'actio quod iussu'?
an action on the master's orders
## Footnote
This allows the agent to act on behalf of the principal with full legal backing.
43
what is the difficulty legally with using a slave as an agent in commercial dealings
legally they are not people, so they are not liable for any losses
therefore they cannot be sued
Praetorian intervention changed this
44
what does the degree of liability an owner can have based on
the degree of 'ignorance'
aka the degree of distance between the slave owner and the slave
45
what are the three types of liability a master can have in regards to their slave acting as an 'agent'
- the peculium
- the business agent model
- specific instructions (full authorisation)
46
does a slave have specific authorisation for things under a peculium?
no, they can do whatever
47
what is the business agent model
the master provides some authorisation, but not full authorisation
knows broadly what the business agent is doing, but not in a detailed way
48
example of a business agent model:
eg I have a merchant ship (moves cargo)
I don’t want to be on the ship moving cargo from one place to another
but I have a trusted person in my household who in his previous life used to be a mariner
I authorise them as my business agent to manage my ship
because they have authorisation, the law assumes that I know what they are doing
so if someone sues them for breach of contract, the liability attaches to me and in the formula there will be a recognition that it is done as a result of the authorisation given to the person via this action
49
What is the law of persons and family?
A legal framework governing the rights, obligations, and status of individuals within familial structures.
50
What are financial benefits of using people as agents?
Increased efficiency, reduced liability, and delegation of responsibilities.
51
What is legal personhood?
The status of having rights and obligations under the law.
52
Who is considered the paterfamilias?
The eldest living male family member, typically the grandfather.
53
How does the power structure of the Roman family operate?
It is centralized around the paterfamilias, who holds significant authority.
54
Define agnatic relationship.
A relationship traced through the male lineage.
55
What defines a cognate in Roman law?
Anyone not agnatically related to the head of the family, related only by natural law.
ie relations between women
56
True or False: Agnates are preferred over cognates in inheritance matters.
True.
57
What is the significance of civil marriage in Roman law?
It establishes parental authority over children born from the marriage.
58
What does 'filius familias' refer to?
A person under the power of a paterfamilias.
59
What rights does a paterfamilias have over children?
Rights over life and death, marriage, guardianship, and control over family maintenance.
60
How are slaves and sons analogous in Roman legal texts?
Both are subjected to potestas (unlimited power) but have different legal implications later on.
61
What is emancipation in the context of Roman family law?
A legal process allowing a son to separate from the power of the paterfamilias.
62
What happens to the familial structure after the death of a paterfamilias?
The family splits into multiple households, with each son becoming a head of his own household.
63
What is the role of adoption in Roman family law?
It creates familial bonds, granting the adopted son rights and duties similar to a biological son.
64
Fill in the blank: The Roman family structure is characterized by a gradual erosion of the power of the _______.
paterfamilias.
65
What does the term 'cognatic relationships' refer to?
Relationships based on natural lineage rather than male lineage.
66
What is the implication of a father having multiple sons in terms of household power?
Each son will become the head of their own household upon the father's death.
67
Fill in the blank: The right of life and death in Roman law is initially held by the _______.
paterfamilias.
68
in Gaius' trichotomy of law groupings, which classification comes first
the law of persons
before law of property, etc.
69
what was the roman family (legally speaking)
intergenerational group of people that are legally clustered around the head of the household
70
what happened to the significance of the power of the family in roman law?
gradually eroded over time
it was legally, economically, and socially inconvenient
although could not dispense of it - a cornerstone of the law of family and persons
71
why does the family unit revolving around the paterfamilias come to be?
because the state is not developed enough to take on the responsibilities of individual members of the family
72
example of the state eroding the power of the paterfamilias
originally, a father could not kill his son without a public trial
then, he could not kill his son at all
73
What is potestas?
Legal control over family members by the paterfamilias
74
Does potestas apply to public law?
No, potestas only applies to private law
75
Can a consul be under the potestas of someone else?
Yes
76
How does potestas affect property ownership for children?
Children could not own property independently from the household
although this slowly changes to allow children in power to own property seperately
77
What control does a child have over peculium?
Factual control but not legal ownership
78
What is the status of children regarding wills?
Children cannot make wills as they don’t have property
79
What exception exists for children making money?
Children in the military can make money
80
What happens if a child can make a will?
They effectively have control over their earnings
81
What is a legal change by analogy?
Extending legal principles from one group to another, such as from slaves to sons in power
82
List the types of legal changes mentioned that eroded the power of the paterfamilias
* Legal change by analogy
* Legal change by inheritance
* Legal change by military law
83
What is the trajectory of ownership for children under potestas?
* Child has no ownership but can make a will
* Child has a peculium without ownership but rights to sell property
* Child outright has ownership but father retains usufruct
84
Can you inherit if you speed up your parents’ death?
No
85
At what age can a child make contracts?
From the age of puberty (14)
86
What benefits and liabilities do children have when making contracts?
They can acquire benefits but have no liabilities
87
What does the law aim to do regarding children's contractual capacity?
Protect them
88
how does children being allowed to keep their money from the military gradually eroe the power of the paterfamilias
originally devised because it is impractical
allows son to have his own money
89
example of a child being able to make a will
if he is in the military and acquires property
90
example of child have no ownership, but rights to a property
if he gains property through his mother
he has the unquestioned right of usufruct
but not the right to alienate property
91
example of child having outright ownership
property not gained 'entirely for the fathers benefit' 'out of his father's affairs' he owns
but father has a usufruct
92
What was the significance of betrothal in early Rome?
In early Rome, betrothal involved the exchange of promises between fathers on behalf of their children
## Footnote
Betrothal was a significant step towards marriage and had legal implications.
93
What change occurred in the consent requirements for betrothal by the late Republic?
By the late Republic, the consent of the parties was required for betrothal
in early ROme, a paterfamilias could insist on betrothing his child to whom he wished
## Footnote
This marked a shift from paternal control to individual consent.
94
What were the fixed ages for marriage in early Roman law?
12 for females and 14 for males
## Footnote
These ages were established to recognize marriage as a means of procreation.
95
What is *conubium*?
*conubium* is the right to enter a civil marriage under Roman law
## Footnote
Roman citizens had conubium, while non-citizens did not unless granted.
96
What happens to children from a marriage lacking conubium?
was not considered an ius civile marriage, but considered a valid marriage under the ius gentium
Children take the status of their mother and are considered sui iuris
the wife could not be under legal control (manus) of her husband
## Footnote
They do not have potestas from their father.
97
True or False: Betrothal was a formal requirement for a valid marriage.
False
but was important evidence of affectio maritalis (intent to marry)
## Footnote
Betrothal served as evidence of *affectio maritalis* but was not a formal requirement.
98
What was the general rule regarding prohibited marriages in Roman law?
Marriage in breach of prohibitions was void and often punishable
## Footnote
Certain rules aimed to maintain social order and moral standards.
99
What were the original restrictions on marriage between patricians and plebeians?
Under the twelve tables, marriage between a patrician and a plebeian was banned
## Footnote
This rule was repealed shortly after its enactment.
100
How did Augustus influence marriages during military service?
Augustus banned soldiers from marrying while on military service
## Footnote
This led to an increase in concubinage during the early empire.
101
What is *manus* marriage?
*manus* marriage is a type of marriage where the husband has control over the wife
## Footnote
It was significant in early law but diminished over time.
102
What are the three ways to create a *manus* marriage?
*coemptio* (purchase),
*confarreatio* (sharing of bread),
*usus* (cohabitation)
## Footnote
Each method had distinct legal and social implications.
103
What distinguishes a free marriage from a *manus* marriage?
In a free marriage, the wife is legally independent and retains her property
## Footnote
This type of marriage became more common in the late Republic.
104
Fill in the blank: In a free marriage, the wife could generally participate in the _______.
legal process
## Footnote
This independence allowed for greater agency in legal matters.
105
What was a legal consequence of a *manus* marriage? (2)
her property passed to the husband, subject to dowry rules
she could not make binding contracts without her husband's permission
## Footnote
This included restrictions on property and contracts.
106
True or False: A widow could marry within ten months of her husband's death.
False
## Footnote
The law required a waiting period of ten months, extended to one year in the Empire.
107
What was the legal status of children born from a marriage lacking conubium?
Children were considered suiiuris, taking the status of their mother
## Footnote
This affected inheritance and legal rights.
108
What was the significance of *affectio maritalis* in Roman marriage?
*affectio maritalis* refers to the intention to enter marriage
## Footnote
It was essential for a valid marriage, differentiating it from mere betrothal.
109
What did the practice of exchanging tokens during betrothal signify?
It was a sign of good faith and commitment
## Footnote
The tokens had significant social and legal value.
110
was the breaking of a betrothal actionable?
in early law, yes, (because the ceremony was similar to the undertaking of a stipulatio)
by the late Republic they could no longer be sued on , even where a penalty was agreed for the breach
111
why was consent to a marriage important?
because they had to have affectio maritalis (the intent to enter marriage)
112
how could you prove consent?
by the ceremonial customs traditional in ROman marriages
eg
exchanging vows in the bride's home
procession to the bridegroom's home
113
could two people get married if the man was not there
yes (eg because he was in the military)
either by letter or messenger
what is required is that she is led to his house
113
could two people get married if the woman was not there
no
she must be led to her husband's home
113
what was 'purchase' in a manus marriage
a form of bride purchase, effected through a formal conveyance in the presence of witnesses
the husband ‘bought’ the bride in a manner similar to that used for the purchase of certain types of property,
the bride ‘selling’ herself with the permission of her paterfamilias or if she was sui iuris with the permission of her guardian
114
what was confarreatio in a manus marriage
a religious ceremony before witnesses and the chief pontiff requiring (inter alia) the eating of special bread by the couple
reserved for marriages of patricians and members of the college of priests
only children of a marriage by confarreatio were eligible for such elevated office
114
what was usus in a manus marriage
if a man and woman cohabitated for a year with affectio maritalis, ie regarding themselves as man and wife
a manus marriage was created even though parties had not undergone any form of wedding ceremony
the required affectio maritalis would be presumed from the fact of cohabitation
however, manus would not arise (according to the twelve tables) if the woman absented herself for three nights in each year
there was a marriage in these circumstances, but it was a free marriage, not a manus marriage
115
what were the important distinctions between a manus marriage and a child in potestas
- the husband did not have the power between life and death
- could not sell her into slavery
- surrender her noxally
- give her in adoption
116
did free marriage increase in importance?
yes, it became the norm from the late Republic onwards
117
how was a free marriage created
by the cohabitation of the parties, provided they regard themselves as man and wife
as soon as cohabitation began with affectio maritalis, marriage came into existence
118
main legal consequences for the wife of a free marriage
- the wife did not exchange families
- her property remained her own and she could keep whatever she acquired during the marriage
- the wife could make contracts and could generally participate in the legal process
119
were gifts between husband and wife allowed
no, so that the husband does not persuade the wife to give him her property
there were some exceptions
eg inexpensive anniversary gifts
120
What was the typical process for divorce in early Rome?
Divorce was normally affected by the act of one or both parties to the marriage.
it was concluded through a private process and was not judicially controlled
## Footnote
It was concluded through a private process and was not judicially controlled.
121
Who had the power to insist on divorce in manus marriage?
The paterfamilias could insist on divorce.(as well as the man/wife)
## Footnote
However, he ran the risk of infamia if he behaved unreasonably.
122
What limitations existed on divorce power during the empire?
The power was restricted but never abolished; it could be exercised if grave cause was shown.
123
Was divorce common in manus marriages?
Divorce was a rare phenomenon in manus marriages.
124
What was the role of families in the divorce process during manus marriage?
Families would consult and may try to reconcile the parties or supervise divorce arrangements.
125
What was the risk a husband faced if he divorced without good cause?
He ran the risk of infamia.
126
List some examples that could constitute good grounds for divorce.
* Poisoning of children
* Theft of keys
* Imbibing of wine
127
What was the procedure to terminate a manus marriage?
It involved a variation of the ceremonies required to create the marriage, transferring the wife back to her family's authority.
128
What ceremonial act could terminate a manus marriage?
A ceremonial resale of the wife terminated marriage by coemptio.
129
How did divorce procedures change by the end of the Republic?
Forms of divorce in manus marriage became virtually obsolete, being terminated like free marriages.
130
Were grounds for divorce necessary in free marriages?
No grounds for divorce were necessary to end a free marriage.
131
What could happen if a divorce was deemed causeless?
It could incur the wrath of the censor, but still a valid end to the marriage
132
What is *divortium*?
Divorce by mutual consent.
133
What is *repudium*?
Divorce unilaterally initiated by one spouse.
134
What was required for *divortium* to occur?
The parties should intentionally cease living together.
whereupon it could be presumed that they had both lost the affectio maritalis
135
What prompted the sharp increase in divorce rates during the late Republic?
Prevalence of free marriage, ease of divorce, and supposed decline in moral standards.
136
What was the purpose of the lex Julia de adulteriis (18BC)
To criminalize adultery by a wife.
137
What were the consequences for a wife convicted of adultery under the lex Julia?
* Banned from remarrying her lover
* Loss of half her dowry entitlement
* Confiscation of a third of her separate property
* Possible loss of citizenship and relegation to an island
138
What was the time frame for prosecuting a wife for adultery?
The wife had to be prosecuted within 60 days of the event.
otherwise he is guilty of a crime punished similarly to adultery
for acting like a pimp (regarded as encouraging or condoning wife's adultery)
139
What could happen to the lover in a case of adultery?
* Forfeiture of half his property
* Possible relegation
* Sentencing to hard labour (if of lowly status)
140
What rights did the paterfamilias have in certain circumstances regarding adultery?
Had a right to kill the lover under specific conditions.
eg if he caught them committing adultery
(provided the lover was of inferior status)
141
Were husbands allowed to kill their adulterous wives under the law?
No, the husband had no right to kill the adulterous wife.
142
How did Christian emperors view divorce?
They frowned upon it but did not abolish it.
143
What penalties were imposed for causeless divorce during Constantine's rule?
Bans on remarriage, loss of property rights, and deportation.
144
What significant change did Justinian implement regarding divorce?
He abolished divorce by mutual consent, except in exceptional cases.
145
What was required for a formal divorce petition in later periods?
It became compulsory to send a formal divorce petition as notification of the ending of the marriage.
146
What were the consequences of a causeless divorce for women under Justinian?
Loss of dowry and compulsory entry into a nunnery.
147
What were the consequences of a causeless divorce for men under Justinian?
Loss of a third of his estate and compulsory entry into a monastery.
148
What is a dowry?
Property or contribution given to the husband by the wife or her paterfamilias.
149
When is a dowry typically given?
Normally given on marriage, but could be given before or after.
150
Was a husband strictly legally obligated to maintain his wife?
No, but he felt a moral and social obligation.
151
What was the purpose of the dowry?
Regarded as the wife’s contribution to the running of the matrimonial home.
152
What was the major exception to the rule invalidating gifts between spouses?
The giving of a dowry.
153
In a free marriage, who was expected to provide a dowry?
Either the wife or the paterfamilias.
154
Did the husband have a right to a dowry?
No, but it was an expectation, especially among propertied classes.
155
What decree was imposed in the late classical period regarding dowries?
A legal duty on the bride’s paterfamilias to provide a dowry.
156
What was the general position in early law regarding dowry ownership?
The husband became the absolute owner of the dowry.
did not have to return any part of it on the termination of the marriage
157
What is a *dos receptitia*?
A returnable dowry with a formal promise by the husband to return it when the marriage ended.
became practice to insist since not legally required
husband was not entitled to capital, but was entitled to the fruits (ie profit or income) of the dowry
158
What was the *actio ex stipulatu*?
One of the standard contractual remedies enforceable for returnable dowries.
159
What did the husband retain under the practice of *dos aestimata*?
He promised to pay the agreed valuation of the dowry upon marriage termination.
ie did not have to return capital, but a valuation of it
160
What was the purpose of the *actio rei uxoriae*?
To protect wives regarding dowries that were not valued or returnable.
161
What standard of care was required for husband liability for dowry losses?
the same dilligence he shows in his own affairs
162
What did Augustus' reforms aim to improve?
The position of the wife.
163
What was prohibited by Augustus regarding dotal immovables? (dowry consisting of land)
The husband was banned from selling them without the wife's consent.
164
What could the husband claim from the dowry according to Augustus' reforms?
'Necessary' expenses incurred for the dowry.
165
What was the consequence of the wife's serious misconduct during divorce?
The husband could retain a sixth of the dowry.
166
What had to happen to the dowry after the divorce
dotal property had to be returned immediately.
fungibles had to be returned in no more than three annual installments
167
What was the basic rule if the wife predeceased the husband?
He retained the dowry but had to return any part donated by the wife’s paterfamilias.
still had a right to claim for deduction
168
What did Justinian's reforms prohibit?
The alienation of dotal immovables even with the wife’s consent.
169
What right was given to the wife under Justinian's reforms?
The right to bring proceedings during the marriage.
no longer had to wait for its termination
eg she was allowed to recover her dowry if her interests were threatened
170
What was the standard remedy after the abolition of *actio rei uxoriae*?
*actio ex stipulatu*. Justinian held that there was an implied agreement
171
What happens to the dowry if the wife predeceased the husband under Justinian
It went to the heirs, not the husband.
172
What is *Donatio propter nuptias*?
A gift by the bridegroom to his wife before the marriage.
173
What was the usual purpose of *donatio propter nuptias*?
To ensure provision for the wife if the husband predeceased her.
174
How did legislation in the late Empire affect *donatio*?
Elevated it from a customary practice to an important legal institution subject to many of the rules applicable to a dowry
175
When must the gift of *donatio* be made?
Before the commencement of the marriage.
176
What was the requirement regarding the value of *donatio*?
It had to be equal to the dowry.
177
could a wife divorce a husband under a manus marriage
unclear
178
what was the only thing required for a divorce in a free marriage?
that at least one of the parties should have eased to have the intention to be married
179
what was required for repudium to occur
it was normal to notify the other party by letter or messenger
180
example for divorce in free marriage
Claudius' third wife wen through a ceremony of marriage with her lover
was considered to have committed bigamy
mere cessation of affectio maritalis was insufficient in practice
there had to be some visible evidence, such as sending a note
181
what was the actio rei uxoriae
the divorced wife could recover whatever the judge thought was a fair share of the dowry, subject to allowing the husband to make reasonable deductions
extended to situations were the husband predeceased the wife
182
what was the consequence of a wife/paterfamilias being responsible for the ending of a marriage on the dowry
one sixth of the dowry per child to a maximum of half the dowry
183
was the wife allowed a tacit hypothec (under Justinian)
implied mortgage
yes
over the husband's property to secure her interests
she was given priority over all creditors of the husband, whether secured or unsecured
