Transcript Proces formułkowy - University of Wrocław

Rafał Wojciechowski
European Legal
History
Most important slides
Egypt
Around 3100 BC the pharaoh Menes united Lower and
Upper Egypt and began the process of
constructing a unitary state.
The status of the Egyptian ruled evolved: the king was
first regarded as a god, then the son of a god, and
then as an intermediary between the gods and the
people.
The monarch was a despot, holding legislative,
executive, judicial and military authority all at
once.
Submission to this authority was considered fulfilling
the will of the gods, and rebellion was punished by
the most severe temporal penalties as well as
condemnation in the afterlife.
Egypt 2
The will of the ruler was carried out by state
administration. It was headed by the Vizier, the
pharaoh’s deputy.
The chancellor and chief treasurer were under his
authority.
Local administration was based on a division into
nomes, ruled by nomarchs. Their function was
taken from local rules of previous times.
They concentrated administrative, judicial and fiscal
authority,
and
oversaw
local
economic
management.
Nomarchs oversaw lower-ranking bureaucrats, who
primarily managed public works.
Public administration workers were paid in kind.
Mesopotamia
Kings ruled the states in the land between the rivers. In
the third millenium BC they were generally
considered incarnations of the main gods. In the
second millenium they were only seen as the
earthly representatives of the gods.
The kings were primarily aided by civil servants known
as nubands, who were responsible for managing
the royal court, day-to-day affairs of state and for
exercising power over the military.
Mesopotamia 2
A centralized administration in Mesopotamia came
about during the Babilon era of the 18th century
BC.
Hammurabi divided the state into provinces with
governors (issaku) at their head, then into districts
with satraps (pahatu). The smallest unit was the
commune, headed by the warden (rabianu).
Local civil servants joined administrative, police and
judicial functions.
The king directly appointed civil servants on all levels.
The Jewish state
In the Jewish state the king was never regarded as a
godly being, but rather only as anointed.
The king oversaw the executive power. Lawmaking
power belonged to the assembly, which limited the
monarch’s despotism.
Central administration rested in the hands of clan
leaders.
The Jewish state 2
The Jewish state was divided into 12 districts, a
reference to the tradition of the 12 Israeli tribes.
The head of a district was known as the judge.
Every district was required one month out of the year
to deliver supplies to the palace needed for
maintaining the royal court.
After the death of Salomon, around 930 BC the Jewish
state disintegrated into the Kingdom of Judah (two
tribes in Jerusalem) and the Kingdom fo Israel (10
tribes occupying Samaria).
Greece
Around 1200 BC, Greece was occupied by the Dorians.
They led to the fall of the Mycenaean culture.
This new situation did not lead to a unified Greek stat.
However, small state-like bodies developed called
poleis (Latin singular polis).
Polis consisted of both a city and its surrounding area.
Usually the territory of a polis amounted to several
hundred km2 and anywhere from a few thousand to
tens of thousands of residents.
Athens (2,500 km2) and Sparta (8,400 km2) were
exceptions.
Athens
At the beginning a king was the head of the state. His
power was quickly restricted. As early as archaic
times the kings were elected, first for 10 years,
then for only one year.
Royalty in its early form disappeared from Athens in
the mid-7th century BC.
One of the archons then received the title of king
(archont basileus) in order to carry out religious
functions.
Only aristocrats were eligible to assume this
prestigious function.
Athens 2
The most important civil servants in Athens were archons.
They were instituted in order to limit the power of the king.
The first one appinted was the archon polemarch to
lead the army, then the archon eponymous
responsible for internal state affairs. They were
initially appointed for life, then for a period of 10
years, and from 683 BC for one year.
Around the mid-7th century, six new civil servants were
appointed, the thesmothete. They were considered
archons.
There were a total of 9 archons, and their leader was the
archon eponymous.
Athens 3
The Areopagus was the Athenian council of elders. Tit
was composed of previous archons who had
compelted their year of service.
The Areopagus was led by the archon basileus.
The Areopagus’s powers included adjudicating the
most serious crimes, oversight of administration
and the appointment of new archons.
The development of Athenian democracy in the mid-5th
century BC led to the Areopagus losing most of its
administrative powers.
Athens 4
During the oligarchic governments in Athens, some
administrative advisory powers exercised by the
Areopagus were taken over by the Council (boule),
composed of around 400 members selected by
territorial units.
During the Athenian democracy, the primary
administrative authority was the Council of 500.
Every full citizen 30 years of older could become a
member. The Council’s term of office lasted for
one year and it was possible to be selected for
membership a maximum of two times.
Athens 5
The Council of 500 met every day except for holidays
and during ill-omen days. It was divided into 10
tribes with 50 members each.
An Athenian year consisted of 10 months, so every
division had to perform its function for one month.
The months were selected randomly.
Members of the the Council were referred to as
prytans, and their term of office was called a
prytanie. A president was selected at random every
day, who was in office for the entire with a portion
of the prytanies.
He was entrusted with keys to the treasury and the
archive.
Athens 5
Many other civil servants were appointed, generally by
random selection. It is estimated that in democratic
Athens the number of state offices was around
800. Officeholders were entitiled to a salary and
many privileges. They wore a wreath of myrtle
when performing their office.
In the 5th century BC, the old archons were replaced in
offices by strategists. There were 10 strategists.
They were selected by a vote during a general
assembly. They led the army, which was why they
were neither appointed by drawing lots nor limited
to a term of office. Pericles held this office in the
years 443-429 BC.
Sparta
The Spartan state was ruled by two kings. Initially
elected, over time they became hereditary. Their
power was progressively limited.
The most important civil servants were ephors.
Beginning in the 5th century BC, rulers had to swear
an oath by which they obliged themselves to respect
the law.
There were five ephors, and they most likely represented
the five settlements that made up Sparta. From the
6th century BC they were elected by citizens for a
one-year term.
They were entrusted with administration, foreign policy
and judicial authority.
They had the right to convene the assembly (apella).
Sparta 2
Two
ephors accompanied a king during military
campaigns and observed his behaviour, but they did
not have the right to issue orders.
After returning, they filed a report in which they could
bring charges against the king.
The court was composed of the second king, the ephors
and members of the council of elders. Punishment
consisted of death, banishment, dethroning or a fine.
Sparta 3
The council of elders in Sparta was called the Gerousia.
According to tradition, it was first convened in the
8th century BC by the king Lycurgus, the legendary
lawgiver of Sparta.
It was composed of 2 kings and 28 gerons who were
appointed for life by the assembly (apella).
The Gerousia’s powers included ruling on the most
important matters of state, judicial powers in the
most important criminal matters, preparing draft
resolutions for the assembly and rescinding
resolutions of the assembly that were detrimental to
the state’s interests.
The Roman Kingdom
It is traditionally accepted that Rome was founded by
Romulus in April of 753 BC.
The beginnings of the Roman state (civitas) was the
settlement of the Palatine Hill, whose first residents
were the Latini.
Around the 6th century BC they united neighbouring
villiages, creating the Septimonium, i.e. The city on
seven hills.
According to tradition, Rome was first ruled by seven
succesive kings, beginning with Romulus and
lasting through Tarquinius Superbus, who was
banished in 509 BC.
The Roman Kingdom 2
The first and the last kings were certainly elected. Some
of the others may have been hereditary. The king
was selected by the Curiate Assembly.
The king exercised supreme executive, judicial, military
and religious authority.
Legislative authority was limited by the powers of the
Curiate Assembly.
Civil servants were appointed and dismissed by the king.
The Senate was a council of elders with advisory
powers. Initially there were 100 of them, and at the
end of the Kingdom they numbered 300.
In the event of an interregnum, the Senate appointed
successive interreges until a new king was chosen.
The Roman republic
The republic was founded in 509 BC.
The aristocracy that was introduced was then later
transformed over two centuries of battles between
the plebians and the patricians into oligarchy.
The expansion of Rome to cover all of Italia began in the
5th century BC and lasted until the beginning of the
Punician Wars in 264 BC, when Rome began its
expanssion into other areas of the Mediterrenian Sea
basin.
At the end of the 2nd century BC, the Roman republic
was engulfed by internal conflict that slowly turned
into a civil war in the 1st century BC.
This led to the transformation of the republic into an
empire around the year 27 BC.
The Roman republic 2
The magistratus designated both the civil servant and
the office itself. Magistrates were divided into higher
(maiores) and lower (minores). Magistrates were
selected at popular assemblies called comitia.
Higher officers were consuls, praetors and censors.
Lower officers were aediles, questors and others given
specific tasks.
All officers were entitled to potestas, the right to issue
edicts and assess penalties for not adhering to
them.
The Roman republic 3
Civil servants also wielded the imperium, the right to
command army, exercise judicial power and to
summon popular assemblies.
All magistrates, with the exception of dictator and
censor, shared these characteristics:
•
Elected by assembly
•
Collegiality (at least two people)
•
Fixed terms of office (usually one year)
•
Honorary position with no salary
•
Responsibility before the popular assembly
•
Civil and criminal liability
Roman republic 4
Consuls held military and administrative powers, as
well as some legislative and judicial ones. With
time, the latter two were taken over by praetors.
Official documents were signed with the names of two
consuls in Rome.
In the 1st century BC, they were assigned the
governance of a province and given the title of
proconsul after their yearly term of office expired.
Roman republic 5
The office of municipal praetor was created in 367 BC.
He exercised the power of iurisdictio, meaning he
ruled on the law relevant for resolving a given court
dispute. He then handed the case over to a judge,
who examined the facts of the case and gave a
verdict.
Roman republic 6
In 242 BC the office of praetor peregrinus was
established. He wielded the power of iurisdictio in
cases involving foreigners, as well as those between
foreigners and Roman citizens.
At the beginning of his term the praetor issued an edict
detailing the principles under which he would
perform his duties of office.
After their term of office was compelted, they were given
the title of propraetor and took a position in
governing the provinces.
Roman republic 7
The office of censor was established in 443 BC. Two
censors were selected by the assembly for a
period of 5 years.
Their primary function was to maintain a record of
citizens and to estimate their fortunes (census) for
the purposes of raising armies and assessing
taxes.
Censors also supervised morality in public and private
life. Those considered to be undignified could be
punished with so called „censorial remarks” (nota
censoria).
They reviewed the lists of senators (lustrum), and
crossed off the names of the undignified.
Censors also exercised oversight of the public purse
and public procurment.
Roman republic 8
The dictatorship was an extraordinary office.
The dictator was appointed by the consul based on a
resolution of the senate. The first dictator was
appointed in the 5th century BC.
His term of office lasted 6 months.
The last dictator in the classical republican sense was
appointed in 202 BC.
There was no appeal against the dictator’s judgements
to the popular assembly, unlike in the case of
judgements from other public servants.
In the 1st century BC the office of the dictator took on a
different nature and was the foundation of the
power of such exceptional individuals as Sulla (8279 BC) and Caesar (48-44 BC).
Roman republic 9
Tribunes of the Plebs, first 2, later 5, and finally 10 were
selected annually at a plebian assembly or special
assembly.
Their territorial jurisdiction covered only the City and a
one-mile radius around it.
They were the embodiment of the majesty of the
Roman people, therefore they were untuchable and
their homes constitued a place of asylum.
Roman republic 9
The tribunes’ powers included:
Convening assemblies of the plebs, with time this
came to include the senate, and the right to object
to all legal acts that damaged the interests of the
plebs.
Those laws could be enacted by the popular assembly,
senate or by public officials.
Tribunes could impose a fine or imprison all those
acting in a way that damaged the interests of the
plebs.
Roman Empire
The Empire was founded by Octavian August, who won
the civil war and brought peace.
In 28 BC he took the title of "first citizen" (princeps
civium), which is the source of the word
„principate” to describe the political structure of
the Empire in the years 27 BC – 284 AD.
In the years 235-284, the Empire was engulfed by a
long political crisis characterized by the presence
of many usurpers.
Order was restored by 284 by Dioclecian, who is known
as the creator of the political order known as the
"dominate"; the Emperor was from then on
referred to as "master and lord" (dominus ac
deus).
Roman Empire 2
During the principate the Emperor ’s power was based
mainly on the regular recurring appointment of him
to the office of consul or proconsul. This was the
source of the imperium maius giving the princeps
supreme military power, ovesight of senatorial
provinces and the right to issue edicts.
In addition, the Emperor received the powers of the
plebeian tribune, and since the tribunes previously
were the embodiment of the majesty of the entire
Roman people as well as untouchable, it was thus
held the majesty of the people passed to the ruler.
Many Emperors also took the office or the powers of
the censor, which allowed them to determine the
composition of the senate.
Roman Empire 3
During the Empire the Senate had 600 members, taken
from those who had held high public office and
satisfied strict financial conditions. The Emperor
was responsible for choosing its members.
The Senate’s powers included partial legislative power
as well as the power to rule in the most important
administrative and tax cases.
Also, the Senate rather than the old comitia was
responsible for appointing office holders. The
Emperor, however, controlled the list of
candidates.
At the end of the 2nd century AD, Emperor Septimius
Severus permanently transferred the majority of
the Senate’s powers to the Emperor’s officers.
Roman Empire 4
Some of the republican offices functioned during the
period of the principate, through the 3rd century,
but were replaced by the imperial officers.
Imperial officers performed their duties:
•
On the basis of a nomination by the Emperor
•
Monocratically
•
Without a defined term of office
•
For a specified salary
The highest imperial officers held the title of prefect,
while lower officeres were procurators.
Roman Empire 5
The most important imperial prefects were:
 praefectus praetorio leader of the praetorians and
director of administration in Italia;
 praefectus Urbi responsible for order and safety in
the City, exercised jurisdiction in criminal cases;
 praefectus annonae responsible for supplies;
 praefectus vigilum responsible for fire safety and
some criminal matters;
 praefectus vehicularum responsible for the postal
service.
Roman Empire 6
During the principlate, the city of Rome and Italia were
treated in an excessively privileged manner.
The territories outside of Italia were divided into
provinces, in the republican tradition.
The Emperors introduced a system of provinces under
the Senate, in which armies were not stationed,
and imperial provinces of strategic significance.
Power was exercised in the provinces by governers,
who had authority over other officers. An
exception was in the imperial provinces, where
financial matters were handled by curators who
answered directly to the Emperor.
Roman Empire 7
During the dominate, the legal position of Italia and
other imperial lands was made uniform.
Constantine the Great went further in making the
imperial administration uniform during the 4th
century.
The state was divided into four prefectures (Italia, Gaul,
the Balkans, the East). They were ruled by
praetorian prefects.
Prefectures were divided into dioceses. First there
were 12, later 14. They were headed by vicars.
Dioceses were divided into provinces, of which there
first were 96, and later 120. They were
administered by appointees known as president or
rector (praeses, rector).
Rome and Constantinople had their own prefects.
Roman Empire 8
The late Roman state was characterized by the creation
of military state officers.
They were called duces (sing. dux), and their authority
encompassed the area of one or several provinces.
***
The Roman state finally split into its Western (until AD
476) and Eastern (until AD 1453) portions.
The last Emperor to use Latin on a broad scale in his
legislation and administration was Justinian the
Great (527-565). The Empire later took on a distinct
Hellenic character.
Tribal kingdoms
The
tribal states did not initially have the
characteristics of a territorial state. They were
associations of free people.
The highest authority in tribal states was the council.
All free men capable of handling weapons
participated. With time, only the elders of the tribe
took part.
This political order is known as war democracy.
Generally, the council gathered at regular intervals,
usually in the spring and autumn.
It decided about the fundamental aspects of the
comunity’s life: declaring war, concluding peace,
seecting kings or leaders and appointing high
officiels.
It also exercised supreme judicial power.
Tribal kingdoms 2
The authority of the prince or king came from the
powers of the supreme military commander,
selected from among the most capable and bravest
warriors.
The selection was performed by the council, usually
from among members of the tribal aristocracy. The
selection usually came from the same clan. A
totally free election happened when the royal clan
died out.
The significance of the council was reduced, and the
king’s powers increased. In the times of
Charlemagne (768-814) the council was an
opportunity to undertake a military review. After
that king died, no more councils were convened.
Patrimonial monarchy
As the council’s significance decreased, the state
began to be viewed as the property of the ruler
himself (patrimonium), which is why we speak of
the patriarchal monarchy.
The foundation of the king’s power was the bannus.
This meant the right of the king to give orders and
to punish those who disobeyed. The royal
authority extended to the military, judicial, and
administrative spheres, as well as the treasury.
The central focus of state administration was the royal
court. The king traveled together with it around the
entire state. This is why we may speak of several
capital cities rather than one capital.
The councils were replaced by court assemblies. They
were based on church synods. They could address
all matters of state, but their role was purely
advisory.
Patrimonial monarchy 2
The structure of royal offices was based on the most
trusted people from the king’s circle.
The Frankish state’s most important officer was the
majordomo (maior domus regis). He served as the
king’s deputy and his chief advisor.
After many decades, majorodomos became heriditary.
In 751, majordomo Pepin dethrones the
Merovingian dynasty and eliminated the office of
majordomo.
Patrimonial monarchy 3
Other officers of the court included:
 The cup-bearer, responsible for the king’s wine
cellar
 The marshal, responsible for the royal stables
 The treasurer, who managed income and
expenditures
 The pantler, responsible for interior administration
of the court
 The referendary, in the times of the Merovingians
he directed the king’s chancery.
Patrimonial monarchy 4
The Franks’ srate was divided into couties (comitatus)
headed by earls (comes).
At first, he was one of the king’s warlords. The king
could relieve him of his duties at any time. From
the 7th century only an owner of land in the county
could become an earl. The earl’s deputy was the
vice earl.
A county was divided into smaller districts. In the west
they were called vicariates, while in the east they
were known as centenes.
Vicars and centines were public officials assisting the
earl. They were initialyl selected by the local
assembly. With time, this choice was taken in
conjunction with the earl.
Feudal fragmentation
In 843, the heirs to Charlemagne divided the state
among themselves in the Treaty of Verdun.
The part that went to Charles the Bald, i.e. France, was
quickly divided into smaller pieces leading to the
weakening
of
authorities
and
increasing
feudalization.
In 987 the French throne was occupied by Hugh Capet.
He began the reign of the House of Capet (later the
Capetian dynasty) on the French throne, yet
initially his sucessors were designated and then
selected while the king lived.
It was only Philip August, who reigned from 1180-1223,
who ended this practice, adn his son Henry VIII
received the throne hereditarily, which was from
then on expressed by the phrase "The king is
dead, long live the king".
Philip August conclusively led the country out of
feudal fragmentation.
Feudal fragmentation 2
The French rulers of that era occupied two roles: king
(rex) and prince (dux) of the Franks. The first title
gave them power in respect of the entire state, and
the second within the borders of their own domain.
The sacral coronation gave the kings of France their
particular position. They were independent of both
the Caesar and the Pope.
The king was the highest feudal lord, the suzerain.
Formally, he was over all those in the feudal
hierarchy. Actual authority extended to the crown’s
direct vasssals, under the formula "my vassal’s
vassel is not my vasssel".
Feudal fragmentation 3
At that time every feudal lord had the right to conduct
war. This led to chaos and the disappearance of
the population.
This was opposed by the Church, which introduced the
institutions of the Lord’s Peace (Pax Dei) and the
Lord’s Truce (Treuga Dei). The first gave legal
protection to those not involved in conducting war,
such as farmers and priests. The second forbade
fighting on special days such as Easter,
Christmas, and finally every day of the week
except for the time from Monday evening to
Wednesday morning.
Violation of these rules could be sanctioned with
excommunication and a trial before the tribunal of
peace.
Feudal fragmentation 4
With time the kings themselves began to limit private
wars. In 1258, Louis IX introduced a total ban on
private wars.
In spite of the ban, these wars did not end in France
until the 15th century.
The feudal hierarchy never questioned the king’s right
to conduct France’s foreign policy.
The royal lawyers’ activities led to the principle that in
relation to the Pope and the Empire, "the king is
Caesar within his own kingdom".
The concept of the French’s church’s dependence on
secular authority was developed.
At the beginning of the 14th century, this led to a
conflict between King Philip IV and Pope Boniface
VIII.
The papacy, losing the conflict, fell into what was
called the "Avignon Captivity".
Estate monarchy
France was an estate monarcy in the period 1302-1484
The king’s power took on a public-law dimension. This
was done in France with the participation of
educated lawyers, called legists.
They used Roman law as their guide, from which they
took fundamental concepts of the state and of
royal power.
They provided a foundation for the legal basis of royal
authority, leading to the king being acknowledged
as:
 The highest feudal lord
 The source of all justice
 The sole holder of soverign authority in the state
Estate monarchy 2
The Royal Council in France was taken from the royal
curia of the 13th century. It was a collegial body.
Its composition was fixed in the 16th century. It was
composed of peers, grand vassals of France,
leading clerics and royal advisors.
Its powers included:
 Conducting foreign policy
 General state administration
 Financial matters
 Cassation hearings
 The power to bring every administrative or judicial
matter before the monarchial court
Estate monarchy 3
In 1497, at the very beginning of the absolute
monarchy, the judicial powers of the Royal Council
were transfered to the Grand Council.
The Royal Council’s activity in respect of taxation was
complemented by the Accounting Chamber.
Its powers included:
 Oversight of provincial servants’ accounts
 Finanical oversight of the royal administration
 Registration of royal ordinances concerning
taxation
 Issuing ordinances
 Judicial matters of taxation
Estate monarchy 4
In most estate-based states, the structyre of central
administration remained essentially unchanged
from the preceding period.
Its functions were, however, changed.
Court and state offices were made seperate.
Court dignitaries began to slowly lose real
significance.
Their offices became honorary.
State administration and day-to-day matters were
managed by specialized offices developed from
existing organs.
Concept and
system of law
Selected meanings of the term "Roman law"
1) the law of Rome – from the beginings of the
City to the death of Justinian in AD 565.
2) Romanistic elements in the later history of
law
3) ius commune – the common law of Europe
from the 12th to the 18th century
4) usus modernus pandectarum and
pandectism of the 18th-19th century
5) Academic study of Roman law
6) The romanist tradition, broadly understood
Periodisation of forms of the Roman state
• Kingdom 753 – 509 BC
• Republic 509 – 27 BC
• Principate 27 BC – AD 284
(including the "crisis of the 3rd century" AD 235284)
• Dominate AD 284 - 476 (W) / 565 (E)
Periodisation of the history of sources of
Roman law
• Archaic law – the kingdom and early republic
through the Punic wars (753 – 265 BC).
• Pre-classical law – the republic during its
development and decline (through 27 BC).
• Classical law – from the principate to the end
of the Severan dynasty (through 235 BC).
• Post-classical law – the Dominate (from the
crisis of the 3rd century to AD 565).
[including Justynian law – reign of Justynian AD
527 – 565]
The concept of law
Ius – Fas
Human law – divine law
D. 1,1,1
Ulpian qouting Celsius from the 2nd
century:
(…) ius
est ars boni et aequi.
Law is the art of [applying the principles
of] the good and the just.
• Dura lex, sed lex (ad D. 40,9,12,1) – The
law is harsh, but it is the law.
• Summum ius, summa iniuria
(Cic.off. 1,33) – Supreme justice, supreme
injustice.
• Male nostro iure uti non debemus
(Gai 1,53) – We ought not to abuse our
legal rights.
• Non omne quod licet honestum est
(D. 50,17,144 pr) – Not everything that is
permitted is honest.
• Hominum causa omne ius constitutum
sit (D. 1,5,2) – All law should be made for
the sake of men.
Divisions of law
• 1/ ius publicum – ius privatum
• Public law – private law
• 2/ ius civile – ius gentium – ius naturale
• Citizen law – law of nations – natural law
• 3/ ius civile – ius honorarium
• Law enacted by citizens at assemblies – law
created by civil servants
Divisions of law
•
•
•
•
•
•
•
•
•
4/ ius commune – ius singulare
Common law – particular law
5/ ius vetus – ius novum
Old law – new law, rule:
Lex posterior derogat legi priori
New law derogates old law
6/ ius strictum – ius aequum
Strict law – law of equity
E.g. Loan contract – articles of association
Systematization – selected issues
• The Institutes of Gaius
personae – res – actiones
persons – things - actions
(repeated in the Institutes of Justynian)
• Renaissance systematization
The entirety of Roman law divided into
substantive and procedural law (Donellus
16th century), and history of sources as
a seperate area of research
Pandectic systematization
•
•
•
•
•
General part, including personal law
Family law
Property law
Law of obligations
Inheritance law
[Various orders of the individual parts of this
systematization have been applied]
History of sources
of Roman law
Customary law
mos maiorum
consuetudo
Developed out of the continuity and stability
of a given social behavior.
The Romans felt customary law was the
silent expression of the will of the people.
They contrasted it with statutory law, which is
an overt expression of that will.
The Law of the 12 Tables
462 BC the plebeians demand that the law
be written down
452 BC decemviri legibus scribundi
451 BC first ten Tables
450 BC two addtionary Tables
Laws of the popular assemblies
Voting was initially done openly by voice; from
the 2nd century BC voting was done in
secret by sedret ballot.
Each voter received two ballots:
UR – uti rogas
A – antiquo
They were then discussed during informal
assemblies (contiones).
After the contio the civil servant convened the
assembly to pass the bill.
Laws of the popular assemblies II
Plebeians also gathered in special assemblies
called concilia plebis.
These assemblies, led by tribunes, voted on
resolutions known as plebiscites
(plebiscita).
Initially they only applied to plebeians.
From lex Hortensia de plebiscitiis in 286 BC
they applied to all citizens.
From that time, many important laws were
passed as plebiscites.
Laws of the popular assemblies III
An act passed by the plebs requried approval
of the Senate to enter into force (auctoritas
patrum).
In 339 BC the Senate gave its auctoritas to all
future acts of popular assemblies.
In the 1st century BC the popular assemblies
were convened very irregularly.
They ceased entirely during the principate.
The last act passed in this way comes from the
end of the 1st century AD, during the reign
of Nerva.
Senate
The first Roman Senate from the era of Romulus
had 100 senators.
During the early Republic, the Senate was
composed of 300 senators.
Sulla expanded the Senate to 600 members.
Caesar made it 900.
Augustus limited the number of senators to 600.
The Senate was made up of former high-ranking
civil servants; it could be convened by a consul
or a praetor, and in the late Republic by a
plebeian tribune also.
Resolutions of the Senate
The magistrate presiding over the Senate presented
the matter that was to be discussed (relatio).
Next, he asked the most outstanding senators for
their opinions.
Less-important senators were not asked formally for
their opinions.
Voting was done by the senators going to one of two
sides.
At the end of a Senats session, the presiding
magistrate and a selected senator wrote down
the Senate’s resolution.
Resolutions of the Senate II
During the Republic, the Senate was primarily an
advisory body.
It held authority in matters of financial oversight
and foreign policy.
It gave up its powers to confirm acts in the 4th
century BC.
During the principate, lawyers gave resolutions of
the Senate the status of legislation.
The jurist Gaius, from the 2nd century AD, had no
doubt as to the status of these resolutions.
During the Severan dynasty (at the turn of the 2nd
and 3rd centuries) the Senate only considered
imperial legislation (orationes principum).
Praetor
In 367 BC, the praetor was appointed as an officer
of jurisdiction.
In 242 BC, a praetor for foreigners was appointed
(praetor peregrinus), after which the first one
was given the title of municipal praetor (praetor
urbanus).
The praetors also deputized for the consuls in the
City when the latter went to war.
The praetor’s term of office was for one year.
Each new praetor published his edict in which he
set out the principles he would follow in his
office.
Beginning with lex Cornelia in 67 AD, praetors
were bound by their own edicts.
Edicts of other Republican offices
Jurisdiction over marketplaces belonged to
Aediles.
He also issued his own separate edict.
Provincial governers issued edicts similarly to
the praetorian edict.
The quaestors were the provincial
equivalents of the Aediles.
Law created by office holders was called ius
honorarium from honos, meaning dignity,
office.
Study of law during the Republc
Iuris prudentia – knowledge of the law, legal
expertise.
From the most ancient times to the 3rd
century BC, knowledge of legal formulae,
the judicial calendar and interpretation of
the law were the domain of the pontifices.
This period is referred to as the era of the
pontiffs’ jurisprudence or the esoteric age.
Study of law during the Republic
cont.
Around 300 BC the pontiffs’ monopoly was
broken by Gnaeus Flavius, who published
the judicial calendar and collections of
formulae for actions in civil procedure (ius
Flavianum).
A short time later the first plebeian pontifex
maximus (highest pontiff), Tiberius
Coruncianus, began public teaching of the
law.
The secularization of the law had begun.
Study of law during the Republic
III
The first Roman jurists were from the
richest classes of society.
They gave advice for free.
They received social recognition and stood
out among their class, which made their
public careers easier.
They were called iuris prudentes or iuris
periti.
Study of law during the Republic
IV
Cicero named three types of activity by
jurists:
Respondere – giving legal advice
Cavere – helping in preparing legal acts and
preparing procedural formulae
Agere – help during lawsuits, generally
consisting in instructing parties and
speakers
Study of law during the Republic V
Jurists sometimes lost cases against orators.
As representatives of the higher classes, there
was no financial incentive to participate
frequently in trials.
This is why they generally sent parties in
lawsuits to professional orators, who were
better able to present the judge with the
facts of the case.
Jurists become the creators of law!
(iuris auctores, iuris conditores)
Jurisprudence incorporated into the imperial
administration.
In the 2nd century emperor Hadrian made
the consilium principis, a permanent
advisory body of legislation and justice; its
members were paid a salary.
Ius publice respondendi
• Privileged lawyers gave legal advice in the
form of a sealed letter (responsum
sigillatum) which bound the judge in
respect of a specific case; with time, it
came to be used in analogical cases.
• With time, the opinions of jurists written in
their books also came to be given legal
power!
During the reign of the Antonines, they
became civil servants
The Severians incorporated them into
the structure of imperial
administration.
The most outstanding jurists (Papinian,
Paulus and Ulpian) were prefects of
the praetorians; as commanders of
the imperial guard, they were also
the highest judges in the state.
Imperial constitutions
The last phase
jurisprudence!
of
buraucratization
of
Normative acts prepared in imperial chancelleries
(constitutiones) become a source of law.
"The law is what pleases the ruler" (Ulpian)
We distinguish:
edicts, mandates, decrees, rescripts
Gradual replacement of the legal responsum with
the imperial rescript!
Edicts
Edicts were general and abstract acts.
They were in force across the entire
Empire, or a specified province.
- e.g. Constitutio
Caracalla (AD 212).
Antoniniana
of
Mandates
Instructions for provincial governors
or other imperial officers. They
generally concerned administrative
matters, court law and criminal law.
Mandates were also used to deal with
many matters concerning soldiers
(cohabitation, soldiers’ wills and
testaments)
Decrees
Verdicts of imperial courts in the first
instance or on appeal. The legal
interpretation contained in them was a
model for judges across the state.
- e.g. decretum divi Marci – foresaw the
loss of a receivable pursued without
going through the courts.
Rescripts
• Responses to questions from officials
or private individials addressed to the
Emperor, who responded as viva vox
iuris civilis.
• The chancellery a libellis prepared
responses to the questions of private
individuals (subscriptio, an official
reference
on
an
applicant’s
submission).
The chancellery ab epistulis prepared
responses to public officials. They were
personally signed by the emperor.
• There were so many queries that
during the dominate we may speak of
the rescript process, meaning one led
by
the
emperor’s
responses.
Rescripts were often used in
analogical cases.
Codex Theodosianus
An official work. It was ordered to be
written by Theodosius II. Published in
AD 438.
It containes the constitutions from the
time of Constantine the Great to
Theodosius II and Valentinian III (over
3000 legal acts).
It is composed of 16 volumes (private
law is in only volumes 2-5)
Method of citation: C.Th. 2 (vol.), 3
(title), 4 (lex), 5 (paragraph)
Justinian law
Justinian I (b. AD 482) reigned from 527 –
565.
He intended to reconstruct the Roman
state.
From around 530, he began recovering the
African provinces from the Vandals.
He also regained Italia in the Gothic wars.
In 554 he imposed his laws on Italia.
In 528-534 he codified or compiled the law.
Justinian law
Justinian convened a commission that worked
from 528-534.
It was headed by Tribonianus, magister
officiorum and quaestor sacri palatii.
The
Codex,
containing
the
imperial
constitutions, was ready in 529.
Institutiones – a tetbook for the study of law,
was issued in November 533.
A selection of texts from the writings of jurists,
Digesta seu Pandectae, was published in
December 533.
Justinian law
After the Institutions and Digests were
published, the existing Code was revised
and its new version announced in
November 534.
Constitutions issued by Justinian after 534
were called Novellae. They were not made
into an official compilation.
We know of them thanks to several
compilations that came to us in various
ways.
Institutions
• An initial textbook for the study of the
Junstinians law (4 vol.)
• Had the force of an Act
• Its classifications were based on Gaius’s
Institutions (personae, res, actiones)
• citations: I. 1 (volume), 2 (title), 3
(paragraph)
• Abstract presentation, no casuistry
Digesta seu Pandectae
• A compilation of fragments of writings by
39 jurists (mainly lawyers from the
classical period, 3 from the republican
period and 2 post-classical)
• The original texts were subjected to
revision in order to adapt the work to the
law that was in effect at the Justinians time
• 50 volumes; citation: D. 1 (vol.), 2 (title), 3
(fragment), 4 (paragraph)
Codex
• A collection of imperial constitutions from
Hadrian to Justinian
• 4,600 legal acts
• 12 volumes (vol. 2-8 concern private law)
• Citations: C. 1 (vol.), 2 (title), 3
(constitutions chronologicaly), 4
(paragraph)
Novelae
• Constitutions issued in 535-582
• Several private compilations:
- Epitome Juliani (124 novelae from 535540)
- Authenticum (134 novelae from 535556)
- Greek compilation (168 novelae
of
Justinian and his successors, Justin II
and Tiberius II)
Justinian law - method of citation
C. 2, 55, 5, 1 – first paragraph of the fifth
constitution of the fifty-fifth title of the
second volume of the Justinian Code
IUST. A. IULIANO PP. *<A 530 D. VI K. APRIL.
CONSTANTINOPOLI LAMPADIO ET ORESTE
CONSS.
D. 4, 8, 7pr.
Ulpianus libro XIII. ad edictum
Beginning of the seventh fragment of the eith
title of the fourth volume of Justinian’s
Digests.
• Justinian legislation was in force in the
Byzantine Empire until 1453
• In the West Justinian laws were main source of
Roman law and were subject of reception from
11th century to XIX century.
• In the 11th-13th centuries glossators of Roman
law rediscovered Code, Digests, Institutions and
Novelae and added Libri Feudorum along with
the laws of Frederic I and II.
• In 1583 Dionysius Gothofredus published the
entire Justinian collection of legislation and
called it Corpus Iuris Civilis
History & institutions
of civil procedure
on the example of
ancient Roman law
Self-help
• defensive -
• offensive
Self-defense
• goal: to maintain
status quo
• Goal: to change
status quo
Self-defense
• Always tolerated in Rome!
• Vim vi defendere omnes leges omniaque
iura permittunt - "All law allows for force to
repel force" (Paulus)
• Vim vi repellere licet - "Force may be met
with force" (Cassius)
Limits of self defense
• It could only be used in defense, not for
getting revenge
• Defense against a force that is:
• serious
• direct
• illegal
Offensive self-help
• A threatening phenomenon which the
state fought against!
• Examples:
• Leges Iuliae de vi publica et privata (17
BC) against armed activities violating the
law and order of the state
• Decretum divi Marci
Historical development of the
procedure
• Legis actiones: from archaic times until the end of
the republic (until 17 BC).
• Formulary procedure:
initially applied only in
disputes between foreigners and mixed disputes (from
the 3rd century BC); from Lex Aebutia (mid-2nd century)
it was also used in disputes between citizens; went out
of use at the beginning of the dominate.
• Extraordinary procedure:
from the beginning
of the principate, first as a procedure for claims not
covered by the standard procedure and in provinces
where the formulary procedure did not take hold.
General characteristics of
procedure
• Two-phase in the legis actio and formulary
procedure
I. in iure: preparatory phase before the
jurisdiction officer (praetor, provincial
governer), who determined the admissibility
of the procedure, selected a judge (with the
parties’ input) and established the mode of
further proceedings.
General characteristics of
procedure
• Two-phase in the legis actio and formulary
procedure
II. apud iudicem (in iudicio): decisive phase
before a judge or panel of judges;
encompassed evidentiary proceedings and
issuing the verdict.
Jurisdiction
• Iurisdictio (from ius dicere – to declare
what the applicable law is)
Types:
1) Contradictory (procedural): exercised in
the first phase of the procedure (in iure);
consisted in granting relief in the form of
an action, which meant authorization for a
judge(s) to decide a case
Jurisdiction
2)
Non-contradictory
(non-procedural):
assistance of the magistrate in performing
juridical acts, ex. :
- in iure cessio
- manumissio vindicta
- adoption of a person alieni iuris
- appointing a guardian
Private judges
•
•
•
•
Individual judge (iudex unus)
Private individual (iudex privatus)
Summoned to rule in a specific case
Selected from album iudicum selectorum
established by praetors
Parties
Actor (is qui agit), petitor –
plaintiff/complainant
Reus – defendant/respondent
Capacity to sue
• Capacity to participate in proceedings
• Capacity to make declarations of will leading to a
defined effect in the proceedings
• It was not possessed by:
– immature persons
– mentally ill persons
– slaves
– women (until the beginning of the dominate)
– children under paternal authority
Standing
The right to take part in a
specific case in the role of the
plaintiff (active standing) or the
defendant (passive standing)
Contradictory proceedings
• Procedure was based on the conflicting
statements of the parties.
• Principle Ne eat iudex ultra petita partium.
– the juge is bound by the demands of the
parties.
• The parties themselves decided about the
fate of the procedure and of evidentiary
submissions.
Location of the procedure
• During the Republic the principle of
transparency was in effect; both
phases of the procedure were held in
the centre of the city in open public
squares (comitium, forum).
• During the imperium, the courts
functioned
in
closed
spaces
(basilicae, auditoria, secretaria).
Jurisdiction of the court (forum)
• Every case should be heard in the appropriate
forum, that is, in the proper court
Types of jurisdiction:
1) substantive: regulated by the division of
competences among authorities providing legal
protection
2) locality: actor sequitur forum rei; the
plaintiff should bring the action in the place
appropriate for the defendent’s place of
residence
Court costs
• Legal aid was free during the republic and
the principate!
• Changes occured during the dominate!
• From the 4th century AD, many high fees
were payable to the state treasury and
court personnel; every official act was
subject to a seperate fee. A deposit was
paid in advance by the plaintiff, while the
costs were borne by the losing party.
Action (actio)
Actio – in Celsius’s opinion, the right to pursue
in court what one is rightfully owed.
When a given person was entitled to actio –
there was the right and correlated potential to
protect that person’s own interest in court
proceedings.
As
Roman
law
developed,
various
classifications of suits appeared based on their
properties.
Possible responses by the defendant
1) indefensio
Not offering a defense. Required the cooperation of the
parties until the end of the in iure phase.
• for actiones in rem there was a choice whether to
enter into a dispute; a passive defendant lost
possession of the thing in question
• for actiones in personam it was mandatory to enter
into a dispute; defendant’s resistance was broken by
allowing the plaintiff to start enforcement
2) negatio
• Defense by negation placed the burden of
proof on the plaintiff
(Reo negante actori incumbit probatio)
• Groundless negation (infitiatio), however,
led to judgement in duplum
3) exceptio
• Defence by way of a procedural plea.
• The defendant did not argue the existance of the
plaintiff’s claim, but rather tried to neutralize it by
demonstrating some circumstances, such as the
debt was the result of a fraud (exceptio metus)
• Excipiendo reus fit actor. = it shifted the burden
of proof from the plaintiff onto the defendant
Confirmation of the dispute (litis
contestatio)
• After preparing the formula, the praetor
handed it to the plaintiff, who then served
it to the defendant. The parties summoned
witnesses and read the formula aloud to
them. The dispute was confirmed (litis
contestatio). This was a consolidation of
the two phases of the procedure.
Evidentiary proceedings
The judge restricted himself only to the
evidence presented by the parties.
Rule: Ei incumbit probatio qui dicit, non qui
negat.
Forms of evidence: witness, documents, expert
opinions, inspections, interview of the
parties.
The judge had full freedom in assessing the
evidence.
Verdict
•
•
•
•
•
•
•
•
Declaratory: if no new legal situation was created.
Constitutive: if a new legal situation arose.
The judge was obliged to issue a verdict!
This obligation could only be avoided when the judge
declared under oath that the case was unclear for him
Terms: sententia or iudicatum
A matter concluded with a verdict: res iudicata
The judge could neither change nor correct his verdict!
The verdict could be found invalid due to exceeding the
authority given in the formula.
European Legal History
Lecture :
Personal and Family Law
Caput the system of three status
• In the Roman law the legal position of a person in
society was defined by the system of three status:
• I. status libertatis - which define personal status
due to freedom or enslavement
• II. status civitatis - which define citizenship of
each person
• III. status familae - which define place of person
in the structure of a Roman family
Capitis deminutio the changes in personal status
• The form of a status wasn’t permanent - it
changed due to specific situations:
• I. capitis deminutio maxima - enslavement
• II. capitis deminutio media - deprivation of
Roman citizenship
• III. capitis deminutio minima - change that took
place in the structure of family
Cives Romani
(Roman citizens)
• Public rights:
• ius sufragii – right to take part and vote on the
citizen’s assemblies
• ius honorum – right to hold a public office
• right to posses a roman surname
• ius militiae – right and a duty to serve in the
army in the time of war
• ius provocationis – right to question capital
punishments sentence in the front of citizen’s
assembly
• Personal rights of cives Romani:
• ius conubii – right to enter into marriage valid
from the roman law point of view
• ius comercii – right to contract
• legis actio – right to become a party in civil
court proceedings
• patria potestas – right of father to exercise
paternal power
• testamenti factio activa and passiva - right to
create a testament and to become a heir from
it
Status familae
• I. persona sui iuris - without superior in
family structure
• II. persona alieni iuris - person under
paternal power ( limited legal capacity,
whatever they acquire was part of family
estate)
Legal entity
• Group of people (e.g. corporation) or estate
(e.g. foundation) that posses legal capacity
and capacity to act in it’s own name.
• The assets of legal entity didn’t belong to
it’s members, but they also weren’t
responsible for obligations of such entity.
Examples of legal entities in
Roman law
• * Res publica - Roman state was legal
person
• * Civitates, municipia and coloniae - local
settlements
• * Collegia and sodalitates - guilds of
person which perform the same profession
or associations of people form some
common goal
Nuptiae (marriage)
• * monogamous and heterosexual
relationship
• * dominance of secular elements
• * relationship based more on factual rather
than legal basis
• * conclusion of marriage was based on
consensus between the parties - not on the
formal ceremony
Legal effect of marriage
•
•
•
•
•
heirdom
husband right to dowry
prohibition of mutual donations
affinity
rights of children born in marriage
Requirements of valid marriage
• * physical maturity
• * both parties must have ius conubi
• *both parties must express their will to enter
into marriage (consensus)
• * parties that possessed status of persona
alieni iuris was required to receive consent
of their pater familias
Personal relations between spouses
• * creation of affinity bond
• * children born in legal marriage had full
rights (especially to inheritance)
• * spouses couldn’t sue each other with
actiones famosae (which could bring infamy
to respondent)
• * both parties should be faithfull to each
other
• * still lack of equality (privileged position of
men)
Dissolution of marriage
• * two modes: divorce (mutual) or repudium
- decision of one party, in marriage in manu
sole right of husband
• Reasons:
• - death
• - deprivation of conubium or freedom
• - emergence of legal obstacle
Agnatic family
• * group of people who had the same family
superior (pater familias)
• * all power was gathered in the hand of pater
familias (only he was a sui iris person)
• * entering family: birth from iustum matrimonium
or formal act of adoption
• * end of the bond: death of pater familias or
emancipation
• * importance: inheritance system (L. XII T.)
Cognatic family
• * bonds of blood rather that from law
• *cognatic family system suppressed archaic
agnatic system in pretorian and postclassic law
• * emancipated family member was still part of
cognatic family
• * daughter-in-law in marriage cum manu was part
of agnatic, but not cognatic family
Essence of paternal power
• * power of father was compared to power
that magistrates have in respect to citizens
• * ius vitae et necisque - law of life and
death)
• * ius exponendi - right to abandon child
• * ius vendendi - right to sell a child
Essence of paternal power, cont.
• * right to decide about marriages of his
children
• * right to broke marriage of his daughter
• * right to restore paternal power from
person that usurped it
• * in classical times: limitations to certain
right of father and emphasis on the duties
of father
Tutelage (tutela)
• Form of help for persons with limitation to
their legal capacity to act in their own name
• Subjects:
• - immature men and women
• - mature women without family superior
Guardianship (cura)
Guardianship over estate of sui iuris person
Subjects:
• * mentally ill persons
• * spendthrifts
• * unborn child
• * hereditary estate not acquired by heir
• * old or handicapped persons
• * persons absent in official state business
Caput the system of three status
• In Roman law the legal position of a person in
society was defined by the system of three status:
• I. status libertatis - which define personal status
due to freedom or enslavement
• II. status civitatis - which define citizenship of
each person
• III. status familae - which define place of person
in the structure of a Roman family
Property Law
Types of dominion over things
Ulpianus:
Nihil commune habet proprietas
cum possessione.
Possession and ownership are two
different things.
Types of dominion over things
•
Factual dominion: possession (its variations)
wielding (pure factual dominion)
• Legal dominion: ownership and numerous rights
in rem (easement, pledge, surface right,
perpetual usufruc)
Factual dominion - possesion
• corpus – physial dominion over a
thing
• animus – intention to retain the thing:
for oneself or for someone else.
Types of possession (1)
• possessio civilis – civil possession,
generally given legal possession in
various manners.
• possessio naturalis (detentio) –
natural possession (wielding), only in
exceptional circumstances granted
legal protection.
Types of possession (2)
• possessio bonae fidei – possession in
good faith, the conviction that
something belongs to us.
• possessio malae fidei – possession in
bad faith, the conviction that somethig
does not belong to us.
Types of possession (3)
• possessio iusta
- based on legal norms
• possessio iniusta (vi, clam, precario)
- not based on legal norms
Particular types of possession
• possessio ad interdicta – possession
protected by praetorian interdiction
- condition: animus rem sibi habendi – the
intention to keep the thing for oneself.
• quasi possessio – possession "as if"
- e.g. Possession of an interitance, as an estate is
an individual non-material thing, regardless of the
number of physical things and claims contained
in it.
Acquiring position
Rule: corpore et animo, simultaneously
handing over the physical thing and having
the desire to transfer possession.
Exceptions (discussed on the next slides):
• constitutum possessorium
• traditio brevi manu
Acquiring possession II
Exception (from the previous slide):
• constitutum possessorium
Transfer of possession on the basis of an
understanding, in which the previous owner-like
possessor (e.g. the owner of the thing) keeps the
thing in his dominion as a dependent possessor or
wielder on the basis of a legal relationship (e.g.
rental contract), which the parties establish jointly.
Acquiring possession III
Exception (from the previous slide):
• traditio brevi manu
Transfer of owner-like possession to the
dependent possessor, or to the wielder, on
the sole basis of a contract. For example,
when the owner of a house sells it to the
person currently leasing it.
Protection of possession
• Interdicta retinendae possessionis
Served to protect current possession which
was being interrupted.
• Interdicta recuperandae possessionis
Served to restore possession after it was
lost.
The concept of ownership
• No general Roman definition of ownership
• The only general description is found in
Justinian’s Institutions:
Plena in re potestas
(Full dominion over a thing)
The concept of ownership (2)
Distinguishing factors:
• Protection of possession via actiones in
rem.
• Actiones in rem were effective erga
omnes, meaning including individuals with
whom the owner was not linked by any
legal realtionship.
The substance of ownership (1)
• Roman jurists understood the substance
of the right of ownership intuitively and
described it causistically.
• In the Middle Ages, a general and abstract
enumeration of the owner’s rights was
developed.
The rights of the owner
•
Ius possidendi – right to possess the thing
•
Ius utendi – right to use the thing
•
Ius abutendi – right to use the thing up
•
Ius fruendi – right to derive benefits from the
thing
•
Ius disponendi – right to dispose legally of
the thing
Limitations on the right of ownership
in public law
• Sanitary
• Communication
• Construction
• Possibility to dispossess for the
public good
Limitations on the right of ownership
in private law
• Law of neighbours
• Limited property rights
• Obligatory relationships
Joint ownership
•
Only in fractions
- Every owner was entitled to defined, abstract
fractional ownership of the entire thing, e.g. ¼.
- Potential division quoad usum, meaning „for use
only”
•
Joint owners could decide themselves about a
division of joint ownership.
•
In case of a dispute, a court could decide about
the division of jointly-owned property, such as
parcels of land, or could order payments to the
other joint owners.
Secondary acquisition of ownership
•
Mancipatio – formal ceremony transferring
ownership before 5 witnesses and weigher
(libripens).
•
In iure cessio – formal transfer of ownership
before a civil servant.
•
Traditio – informal transfer of ownership in
objects of lesser value.
During the later imperial period (dominate) the first
two forms disappeared, and the only way of
transferring ownership was traditio.
Primary acquisition of ownership
•
Usucapio – acquisitive prescription, meaning
the acquisition of ownership in a thing with the
passage of time (sometimes classified as a
seperate way of acquiring ownership)
•
Occupatio – appropriation (e.g. wild animals)
•
Accessio - joining
•
Specificatio - transformation
•
Fructuum perceptio – acquisition of benefits
•
Thesauri inventio – finding a treasure
Protection of right of ownership
• Rei vindicatio – an action demanding
the return of stolen property.
• Actio negatoria – an action demanding
the
cessation
of
violations
of
ownership.
• Actio Publiciana – an action by an
informal possessor in good faith
demanding the return of the owned
thing.
Rights in the property of others
• Servitudes
• Emphyteusis
• Right of the surface (Superficies)
• Pledge
servitutes praediorum rusticorum,
Servitudes on rural lands
• iter - right of passage on foot through a
•
•
•
•
neighbour’s land
actus – right to herd animals
via – right of way encompassing the above
aquae ductus – right to conduct a
waterway
aquae haustus – right to draw water
servitutes personarum
Personal servitudes
•
•
•
•
ususfructus – usufruct
usus - usage
habitatio – right of inhabitation
operae servorum et animalium – right to
use the labour of others’ slaves and
animals
General principles of servitudes
• servitus in faciendo consistere nequit – a
servitude can not consist of activity
• servitus servitutis esse non potest – a
servitude can not be set up on an
easement
• servitutibus civiliter utendum est –
servitudes should be used sparingly
• nemini res sua servit – one can not have a
servitude on one’s own property
Specific rules concerning servitudes
1.Personal servitudes ended not later than
the death of the entitled person
2.Easements (servitudes in land) should also
meet additional conditions:
• utilitas – useful for the neighbour
• vicinitas – immediate vicinity
• perpetua causa – permanent need
Perpetual leasehold - origins
1.Ius in agro vectigali – Roman leasehold of
public lands
2.Emphyteusis – from the Hellenic law,
resulting from private law actions such as
contract, testament
3.Emperor Zenon in 480 decided about the
seperateness of institutional emphyteusis
from other property rights and obligations
Perpetual leasehold – establishment
Two possibilities
1.Contractus emphyteuticarius – a special
emphyteutical contract
2.Testamentum - testament
Perpetual leasehold – rights of the
leaseholder
1.To collect benefits at the moment of
seperation from the superior thing
2.Possibility to decide independently about
changes in crop types
3.Use of actions designed to protect
possession
4.Right to dispose of leasehold
Permanent leasehold – duties of the
leaseholder
1.Annual rent paid to owner
2.Payment of all taxes burdening the land
3.Maintaining land in good condition
4.Informing owner of intention to dispose of
leasehold
5.Payment of laudemium upon effective
disposal of leasehold
Permanent leasehold – expieration
1.Destruction of land
2.Convergence of leasehold with ownership
(e.g. Owner exercises right of pre-emption)
3.Removal of leaseholder (e.g. for failure to
pay rent for three successive years)
Superficies
• This right did not infringe the principle
superficies solo cedit (what is permanently
connected to the ground belongs to the
owner of the ground)
• Protected through a special
(interdictum de superficiebus)
interdict
• Only in Justinian law was the superficiary
granted actiones in rem
Pledge – essence
• Real securrity for a debt
• Accessorial nature of the institution
•
Secured only a specified receivable
(exception: pignus Gordianum)
Pledge – historical development
• Fiducia – fiduciary pledge, associated with
transfer of pledged item to the creditor
• Pignus – pledge in which the creditor only
wields the pledged item; presently
available in pawn shops
• Hypotheca – contractual pledge, the item
remained in the dominion of the debtor
Fiducia
• Fiduciary contract transfering ownership
of a thing
• In archaic law there was no civil protection
for a fiduciary debtor
• In later law, the debtor was granted a
seperate right of action, actio fiduciae
directa
Pignus
• This form of pledge appeared at the
beginning of the republic
• Consisted in the pledgee being the
wielder of the item
• The property right arose out of a contract
with the same name
Additional covenants which could be
concluded in the case of a pledge
• Lex commissoria, forfeiture clause – the
object of the pledge became the property
of the creditor in the event of failure to pay
the debt
• Pactum de vendendo – a contract for sale
of the item by the lender if the debtor
failed to pay the debt, but settlement was
required
• Antichresis – a contract on collecting
Hypotheca
•
Origins in the 2nd century BC
•
Milestone at the turn of the 2nd and 1st
centuries BC when praetor Salvianus introduced
a special possession interdict, interdictum
Salvianum
•
In the mid-1st century the praetor Servius
introduced a separate actio in rem, called actio
Serviana
•
In the Roman Empire there was no special land
register, only Egypt had a proper land register.
Inheritance Law
• Inheritance law
• Inheritance, also called succession, the
devolution of property on an heir or heirs upon
the death of the owner. The term inheritance
also designates the property itself. In modern
society the process is regulated in minute detail
by law. In the civil law of the continental
European pattern, the pertinent branch is
generally called the law of succession. In AngloAmerican common law it was customary to
distinguish between descent of real estate and
distribution of personal estate. The rules
applicable to the two kinds of property have
been fused, but no common, overall name is yet
universally accepted.
Succesion
Succession takes effect in a result of the death of a
person which had the ability to transfer his
possessions.
The possibility of inheritance is called
„appointment to inheritance” (delatio hereditatis).
an
While the closest heirs (called domestic heirs) mere
appointment was sufficient to become an heir.
External heirs needed additional act of acquisition of
estate. In classic law the formal act of cretio was
required, in later times even informal acquisition (for
example in a way of executing the legacies) sufficed
Appointment to inheritance may be the result of:
• will of the deceased expressed in the form of a
testament (testate succession)
• in case of lack of testament or situation that
testament was defective where where the case of
statutory succession or intestate succession,
• In case that domestic heirs wasn’t disinherited and
didn’t get anything from the will – to protect
closest family members there was a case of contra
testate succession
Residuary estate (hereditas)
• An estate - the non-material things (one of the first and
most important).
• It included both material things and the rights, but with
its acquisition involved responsibility for the debts of
the previous owner.
•
Its acquisition led to general succession (as opposed
to
the
singular
succession)
Succession didn’t involved rights and obligations of a
personal nature. Position in family wasn’t –as well –
hereditary.
• Relatively easier to acquier ownership via prescription
(no good faith requirement and shorter amount of time
required)
Testate succession
• Made through a will
• Freedom of dividing of property – testator
could freely change or cancel previous
testament or create new one
• Immorality of inheritance agreements
• Testate succession precede statutory
succession – statutory heirs inherit estate
only in case of absence or waiver made by
testamentary heirs
Normal types of wills
Prepared in form of single act (oral or written), in
one place, in the same time.
Testementum tripertitum - combined the
principles of civil law (simultaneous presence),
pretorian law (seals of 7 witnesses) and imperial
law (signature of the testator and witnesses),
introduced by Theodosius II in 439 AD
Testamentum per holograph scripture - a
testament personally written and signed by the
testator, introduced Constitution Valentinian III in
466 AD
Priviledged types of wills
• Their principle is more liberal form in
comparison to normal forms.
• Examples:
* A will drawn up during the epidemic (not
requiring the simultaneous presence of
witnesses)
*Testament of a soldier - Emperor Trajan
declared that any testament made by soldier
- oral or written – even without meeting all of
the formal requirements
had the legal
effect.
Restrictive forms of wills
• Characterized by the additional formal
requirements.
• Examples:
Testament of the blind (requiring signing
by 7 witnesses and a local official tabularius, in the absence of this second
requirement signs of 8 witnesses was
required)
Testament of deaf person – such
document could be only personally written
by the testator
Public forms of wills
The participation of the public factor was
required in these forms:
• Testament submissed to the Emperor
(testamentum principi oblatum)
• Testament made to the protocol of judicial
or municipal authorities
(apud acta
testamentum conditum)
Legal effects of will:
invalidity and ineffectivness
The invalidity of the will (testamentum
nullum) – will was invalid from the
beginning because of:
• It didn’t meet the formal requirements
• That the testator or the heir did not have
the testamentary capacity
• Omission of a son under the paternal
authority
Ineffectiveness of the will (testamentum
rumptum) - the invalidity is the result:
• Birth of a statutory heir in the will is not
taken into account
• Capitis deminutio of the testator (with the
exception of slavery as a result of military
campagin - fictio Legis Corneliae )
• In the case of rejection of
will by
testamentary heirs
Legacies: the only form of singular
disposition known in ancient Roman
law.
The establishment of the legacy was
carried out in a formal way with certain
words, strictly defined by law
Legacy burdened only testamentary
heir, so it had to be placed in will.
Trusts - informal requests to make a donation of
property to designated person issued by the
testator to someone who received some benefit
from the will
Differences between trusts and legacies:
•Trusts does not necessarily have to be placed in a
will – could be oral or in codicil
•Trusts could burden not only heir but also legatee
•Trust didn’t gave rise to legal obligation, it was only
moral duty to complete them
•
Uniwersal trust
Testator
Ordered
trustee to give
the whole
estate to third
person
(beneficiary)
Trustee
Beneficiary
Three systems of statutory
succession
1)Agnatic (Law of Twelve Tables)
2) Agnatic-cognatic (pretorian law)
3)Cognatic (Iustian’s Novellae)
Cognatic system
Inheritance by the bonds of blood. It
contained 4 classes of proximity:
• Descendents of deceased
• Ascendants of deceased
• Half siblings
• Cognate relatives
Descendents of deceased
All the descendants without distincions of
sex and being under the authority:
• Children
• Grandchildren
• Great-grandchildren
Ascendants of deceased
• Siblings from the same parents
• Children of these siblings