Roman Law PDF

Roman Law Created @September 20, 2023 2:40 PM Reviewed COGNISANCE LEGIS ACTIONES Legis actiones sacramento the form of action based on sacramentum (oath) is the oldest among cognisance legis actiones....

Roman Law Created @September 20, 2023 2:40 PM Reviewed COGNISANCE LEGIS ACTIONES Legis actiones sacramento the form of action based on sacramentum (oath) is the oldest among cognisance legis actiones. the succumbing party had eventually to give a certain amount of beasts for sacrifice. there must be a material respresenting of a thing. each party claims the ownership on the same thing. each party challenge the other the oath (sacramentum) that his assertion is true. legis actiones per iudicis arbitrisve postulationem ALMOST CONTRACTAL AND ALMOST DELICTUAL OBLIGATIONS: obligationes queasi ex contractu 1. indebitum solitum Roman Law 1  Roman Public Law Periods: 754 BC - 509 BC : Monarchy 509 BC - 23 BC : Republic 23 BC - 235 AD : Principate (the form of imperial government of the Roman Empire) 235 AD - 565 AD : Dominate (the despotic form of imperial government of the late Roman Empire) Roman Private Law Periods: 754 BC - 242 BC : Archaic law 242 BC - 23 BC : Preclassic law 23 BC - 235 AD : Classic law …….. A. EARLY ROMAN REPUBLIC The distinction between Patricians and Plebians. Patricians are; have a say in government healthy land owners the heirs of high standings family in Rome held military and religious positions Plebians are; low class workers 95% of people no say in government forced to serve in army Roman Law 2  Rome before the republic regime run by the kings titled “lex”. Patricians obeyed the king and wanted more participation in government. Forms of Government: Monarchy - Democracy - Oligarchy - Dictatorship The first dictator in the history is Ceaser. The dictatorship arises in the emergency situations due to the reason that its useful to give the power to a authorized person in order to solve problem. It supposed to last 6 months. Romans chose a complex government. Its based on the rule of laws to protect themselves and their liberty. Assembly of Tribes Tribune Cannot suggest law. However, it can approve or reject a law. Acted as the final Court. Cursus Honorum Questor is normally in charge of the administrative part of the litigation. However, the definition of their work changed during the periods. Senate Composed of 300 to 600 magistrates and ex magistrates. Whatever laws are passed by the senate are official law in the empire Assemblies Composed of all males who were full Roman citizens. Voted yes or no on laws. More than one typology of popular assemblies. They functioned as the machinery of the Roman Legislative branch. The legislative assemblies of the Roman republic were institutions in the ancient Roman republic. There are two types of Roman assemblies: Comitia and Concilium ROMAN LAW INTRODUCTION 1. ORIGINS OF ROMAN LAW When the Roman republic established there wore already customary law (mores nos maiorum). The customary law only applicable for the full roman citizens. Roman Law 3  Customary law: A legal practice that observed (diuturnitas) and repeated and the relevant actors consider it to be law (opinion juris). Pontifices: There was a college of portificies originally from patricians. They made decisions and ruled in question of customary law. The president named ‘Pontifexmaximus.’ Also in that time there was a link between religious and legal sides. (today the pope still has that title) Due to the reason that customary law can be changed orally and there was not a certainty; twelve tables were published in 449 BC. In order to make law predictable and make citizens feel secured. The twelve tables included not only the law that applied directly to the citizens but also the asptects ie. religious law,etc. Rome’s exoansion is Roman Law’s expansion The condition of roman citizens were privileged one until 167 BC. Later ont wo new branches were developed: Ius gentium ( law of the people): Body of laws applied to all people foreigners and non citizens also the citizens. Ius civile was just for the Roman citizens. Ius naturale (ius naturale): All the living creatures. Humans as well as animals. (ie. Physical defence against attack, laws pertaining the protection) 2. THE SOURCES OF ROMAN LAW Source of law: Something that procudes law and provides the authority for judicial decisions and for legislation specifically. During the Justinian time there were a lot sources of the law. Therefore Justinian decided to collect them. At the time of romans, there was no hierarchy in law. They had all the same value. Its important to know source the characterize legal systems. Types of sources: Sources of production: organs and institutions that produce law. sources of cognition: materials. sources that you can be informed about the law. ie.officcial gazzette What kind of law? What kind of law: Roman Law 4  Unwritten -mores -consuetudo Written -leges -Plebiscite -senatus -consulta edicta -magistratuum -constitutions principium -written replies of the expert on law: responsa prudentium Sources of Sources of Sources of Sources of Monarchy Republic Principate Dominate -Mores: plural of -Mores -Mores -consuetudo mos. constituted -Leges -Leges -constitutiones customary law -Plebiscite principium rooting to the -Senatus statues of most ancient -Senatus consulta: became finding citations age of Rome. consulta from of Pontifices production of interpreted what -Edıcta magıstratuum: law. opinion of was custom. law procuded the senate. Upper class had During the the power on within the trial. predator build republican era customary law. they were not within the civil Therefore, considered plebians wanted trial called binding to establish 12 formary trial tables. -Responsa -pecreta -Leges: preditium: -epistilae statutory law: opinions of jurists. Roman Law 5  12 tables -jurists. but regiale: the laws during the by the king (not republic era approved yet) their activities based on professional authority. during the principate they became under the control of principate. 26.09.2023 THE ROMAN LAW OF PERSONS First division in the population: free men and slaves second division: independence in the family there was legal age but according to you position in the family sometimes you are not sui iuri. Auctorias:tutor:in order to put some legal relevant activities - women, prodigalç incapable,etc. only if you born, you confirmed your rights and duties. you gain your legal capacity when you born alive. SLAVERY: Justinian defined it in ius gentium: in reality its an act of mercy - they let you live (that was the main idea about slavery) one man was subject to the dominium of another by natural or via slavery. the owner (dominius) is so cruel on slaves can be punished by law. SLAVERY FOR ALL normally romans any type of population that they conquered. also romans could sell themselves into slavery if a family was extremely poor. in order to Roman Law 6  receive protection. slaves marriafe was not recognised by the law. slaves could hope for freedom. slaves had limited contractual capacity. a master could be rendered liable for the delicts of his slave. the owner could give the body of the slave as a compensation. FREEDOM FOR MANY once a slave is free : freedman manumissio iusta ac legitima: right and legitime : vindicta, censu and testamento these three manumissions are charactarized because, ……… 1) Vindicta the master pronounces some words in fron of the magistrate like a simulated process 2) Censu the master decide to write the name of the slave during 3) testamento last will. testemantary deposition by the slave’s master there are also pretorian formes. besides the above, they are informal. manumissio inter amicos manumissio per epistulam manumissio per mensam mensam: table, common place to eat a freedman did have a limited citizenship not legally, in the social perspective the children of a freedman had full citizenship. a freedman still part of the familia and under control of the pater familias. freedman were also still indebted to their former master as a client (patronage) ROMAN LIFE Roman Law 7  In rome being a citizen is considered as an honour. roman men registered for the census- official count of people living in rome in every five years. if you dont register, he risked losing his property and being sold into slavery. Imperir caracalla decided to give citizenship to the poeple in roman law boards. LAW AND ORDER Romans believed in the rule of law roma law was strict and cruel believed gods controlled their daily life the family was ruled by the father (patersfamilias) roman citizenship was usually requiered by legal roman marriage or birth from an unmarried roman woman. the mother is always certain, father can be unknown: beacuse of this rule roman citizenship usually acquiered by the birth from an unmarried roman woman Public Law: Ius Suffragii: right to vote in the popular assemblies ius honorum Private law. Ius Conubii Ius commercii there are different types of citizens: Latini: Ius civile is applicable only roman citizens. latinis had limited powers until Caracalla PRINCIPLE OF PERSONALITY: the foreigners had no rights …… THE ROMAN LEGION Legion: a division of Roman army when you register to the census, you give information about your properties. it gives information about the sources and you are appointed to a position army. Roman Law 8  if ypu are wealthy you have better position Roman women did not possess ius honorium and ius saffagii they had ius conubi and limited ius commercii the authority is called manus. the wife of a paster familias known as mater familias she could nnot vote since she could not serve in the military or pay taxes STATUS FAMILIAE Familia and family is tnot the same. there were Gens (ie Gens Ünal) GENS: -Pater familias -Mater familias — their children ALIENI IURIS: all the persons instead of pater familias are considered alieni iuris. agnatio=the relationship between all persons the potestas of the same pater. PATRIA PROTESTAS IUS VITE ACNECIS. the right of life and death normally the widow could be placed into the family of the oldest son IUS VITAE NECISQUE: pater familias power is limited by custom and public opinion End of patria potestas: death or change of status in patria potestas whether you have debt or solve economical problems you can be adopted. adrogatio: a sui generis person was brought under a patriapotestas of another emancipatio (emancipation) : hukuki anlamda özgür kılınmak, günümüzde yetişkin kılınmak gibi CAPITIS DEMINUTIO the changes in your legal status Roman Law 9  Capitis Deminutio Maxima : loss of liberty Media : you lose citizenship. you still have personal liberty. (as a sanction) Minima: MARRIAGE D.23.2.1 marriage usually followed an engagement or betrothal (sponsalia) -heterosexual -laws done by the human and religious sides -lasts for the life for t The only form of marriage was Confarretatio one of the rights Conditions of a valid Roman marriage: ius conubii: bride and groom must be roman citizens. being able to make contracts consent of both parties for the son’s marriage, oater familias needs to give explicit consent both parties must be puberes there is not a real marriable age. approximately 14 for men, 12 for women. That depends on case by case. both man and woman must be unmarried. because of the pater familias organization, it was not possible to have more than 1 wife or husband. the parties should not be nearly related. In addittion: dowry had to be negotiated prior to the engagement If the conditians are fulfilled and husband and wife were roman citizens its called iustae nuptiae……… Roman Law 10  FORMS OF MARRIAGE: - Cum manu : the woman passed into the power of her husband, or into the power of his paterfamilias -Sine manu: the wife retained the ststus held before her marriage CUM MANU: three methods of transfer: -CONFARREATIO: 10 witnesses. In front of the pontifex maximus -COEMPTIO (Bride purchase) 5 witnesses. libripens: the person who helds the terazi -USUS automatic passive transfer of the wife. but 1 years is necessary to complete the transfer. wife could prevent the transfer without spending 3 nights from her husband’s home. Acquisitive prescription SINE MANU: became applicable by the last century of reoublic. when the woman’s pater familias died, she becomes sui iuris. besides that, she becomes the heir and gets part from the inheritance. 02.10.2023 The idea of Augustus was more marriage more legitimate children. Also for the economic and poltitical side, remarrying was popular at the time. In order to be sure about the paternity of children there was a waiting period before re-marrying. 10 months at least If you are already pregnant, the paternity is certain. there is no need to wait to re-marry. The frequency of remarrige among the elite was high. Roman Law 11  Due to high death race, low average life expectancy and high divorce rate: people did multiple marriages. ancient physicians believed that a woman was liable to get sich if she deprived from sexual activity CHILDREN the real reasons of the marriage. Paedegogus: a man slave, accompanies child to school or anywhere else tending to his studies Rhetor -OBLIGATIO- the sources of obligation: 1. CONTRACT ( VOLUNTARY ACTS) 2. DELICTS (UNVOLUNTARY ACTS) Institutoes of the Justinian I.3.13.: Oblgation is something that is bound of law. by which we reduced to the necesitty of making some performence according to the law of our state. Its a relationship between two parties. Its strcitly connected to the law and your behaviour. two-ended relatio nship which appears from the one end as a personal right to claimm and from the other as a duty to render performence: today’s definition. OBLIGATIONS vs. RIGHTS IN REM Rights to connected to the res (things) and some other connected to the duty of person: obligation Delictual liability: from revenge to compensation Obligatio is originated from the sanctions of delicts. Certain situations did not fit into the internal po…… whoever had commited a wrongful acts against the body or property of another person was exposed to the vengeance of the victim of this wrong Roman Law 12  After the 12th tables the state started to interfering. Instead of the vengeance, accepting a sum of money indirectly enforced. they decided to create the same liability for voluntary acts. Nexum: if you have some debts you can sell yourself to the slavery. nec suum: not one’s own nexum was a debt bondage. they oayment of a composision or whatever he had promised: the most constituent element was still missing In the first sence you are obliged physically, therefore, the obligation gave rise to an intensely relationship between parties. DARE FACERE PRAESTARE OPORTERE Debtor was directly boud to make performance: the essential element of an obligation in Roman law Ubi remedium ibi ius: only where there was a remedy was there a right UNENFORCEABLE OBLIGATIONS (obligationes naturales) all the obligation so fthe famşly are the natural obligations. bevcause non of them does not have full personal sphere. oblgations of minors also natural obligations its a personal type pf liability SUMMA DIVISIO OBLIGATIONUM ( Main divison of obligations) The Contract and Delict Dichotomy Emperor Theodosius II named him in the great Law of Citations Majority first then Papinian. Papinian, Ulpian, Modestinus and Paulus An act can create an obligation Gaius: the sources of obligation are contract, delicts and he added a third category: variis causarum figuris ( other various causes ) contractual oblgaitons delictial obligations legal obligations Roman Law 13  By Justinian Institutioes the divison is four: contract, almost-contract, an illegal act or almost an illegal act there various cases had been subdivided on the model of the contract(delict dichotomy and as a reasult a fourfold scheme had been arrived. 03.10.2023 oBLİGATİONS ARİSE WHETHER FROM CONTRACT, FROM CRİME OR FROM VARİOUS OTHER CAUSES BY OPERATİON OF LAW. contract, legl act, almost a legal act the institute started to anaylıze the contract obligations ALMOST CONTRACTAL AND ALMOST DELICTUAL OBLIGATIONS: obligationes queasi ex contractu 1. indebitum solitum it refers the payment of a debt that does not exist. if someone pays a debt that they do not owe,the person who received the poaymet has a duty to return the money 1. negotium gestum its like mandate, but with no contract of mandate if you start to do this, you cant stop it. you have a nnew obligation. there is no contract or damage 1. tutela (guardianship) 1. communio involuntray common ownership you are liable with other owner. this obligation cannot undertsand reffered from a conrtact 1. legatum per damnationem an obligation between the heirs towards the legaty. ALMOST DELICTIAL LIABİLİTY Roman Law 14  1. Iudex qui litem suam fecit in this case there is a damage, something simply happened. there is a liabi 2.effusum vel deiectum: 3. positum aut sospensum: at the time all the delicts requiered. direct action and contact. therefore these actions did not consider directly delict. 4. actiones adversus stabularios, caupones, nautas the distinction between delict and queasi-delict CONTRACTS: four genera of contracts re: real contract verbal c. consensual contract (by consent) writing contract when a contract is not in one of these styles its still valid but there is no protection. they based on the conclusion moment of the contract FORMAL: a procedure must be followed litteris verbis INFORMAL: consensus re Definitions of contract: D. 46.3.80 Pomponius: an obligation can be dşscharged in the same way in which it was contracted Labeo D. 50.1619 (Ulpanus): Roman Law 15  defines the terms to act, to transact and to contract. the word act has a general application and refers to anyrhing which şs done verbally or with reference to the thing itself d.2.14.7 (ulpianus) all the contract have actions and protections a mere aggrement does not create an obligation but it does create an expectionç d.2.14.1.3- ulpianus the term conventio is such a general one, refers everything to which persons who have transactşons with one another give their consent for the purpose of making a contract CONTRACTS RE theya ll involve the delivery of a res by person to another one. Mutuum (loan for consumption) weighed, counted or measured. something can given in the same wuality and quantity cins borcu the object can be changed baceause its not one of a kind always involves an exchange of exact equavalience in kind and quality stricti iuris. transfer ownership, unilteral (you must deliver the object) Commodatu, dpoestium, and pignus: good faith conract. unequally bilateral Commodatum ( loan for use) the mian actio lay against the borrower to enforce his obligations to keep safe the res and return it the contract is always gratutious and always for the convenience and advantage of the borrower if the res is to be kepot, not used- depositum to get the thing back at the end of the loan is the borrower’s main obligation Roman Law 16  custodiam praestare: duty to custody borrower’s liability beyond culpa and omne periculum, except vis maior Depositum: someone agreed to accept a specific object for sfekeeping for a specified period time the deposit is liable only for dolus Pignus (Pledge) form of security in which the debtor meianed owner of the preperty he was pledging…… FİDUCA CUM AMICO/FIDUCA CUM CREDITORE fiduca: trust 05.10.2023 LITERAL CONTRACTS (contractus litteris) only written conttract. but not for the oroof. it was in the book keeping system. Gaius 3.128-134 two kinds: from a thing to person- from a person to person CONTRACTS-CONSENSU all bilateral-obligational expect mandate was imperfectly bilateral the agrrement is the consent and essence of the conclusion of the agreement Emptio venditio, locatio conductio-hire, mandatum, societas we have different types of needs therefore we shared interests each party is an obligor to its own promise. 09.10.2023 UNILATERAL CONTRACTS bir tarafın fiili karşı tarafı edime sürükler. there is no promise until the action is completed. Unperfectly bilerateral contract: Roman Law 17  normally there are 2 obligations. in this case two of the actions are strictly bounded each other and if one party does not perform his action, the other part does not fulfill his obligation. EMPTIO VENDITIO-SALE esssentials: consent, object, price its a bonae fidei- good faith contract judge can iterpet thr contract according to the good faith CONSENSUS, INTER ABSENTES no form of words or writing is rewuiered, but the nere consent of hte parties is sufficient. obligation in verbal contract is not possible in inter absentes. CONSENSUS, INTER ABSENTES, IURIS GENTIUM because its ius gentium contract….. if you are foreigner because you dont have ius comercium, the contract will not be valid and protected. CONSENSUAL CONTRACTS all the consensual contract are bilateral and good faşth contracts. fairness and equality bilateral contracr imposes obligations on both parties bilateratility- expect: exceptio non adimpleti contractus ı can wait to fulfill my obligation because you did not fulfill yours they are interconnected actions PRINCIPLES OF ROMAN LAW Nature of obligation: obligation is incorporalis. you have right on a object, not a person. jus in personam: right to availbale against a specific person Classification ob obligatiosnd: Roman Law 18  Civil and Praetorian/Honorary: Civil obligations are created by statues or at least approved by civil law Praetorian obligations created by praetors in exercise of his jurisdiction. Civil and Natural Natural: only imperfectly protected by law. not enforcable. Third category: BASIC IDEAS RELATING TO CONTRACT Unilateral v Bilaterale Stricti iuris v bonae fidei binding the promiser to the very thing he has pormised (unilateral) the jusde ca change the agreement within interpretation of the parties.- bilateral Formal v Informal the form makes the contract depends on the intention of the parties Abstract v Causal the reason why ı do the contract is not important. if formality is satisfied the cause of the contract is not important. the reason behind promise becomes relevant FORMATION OF CONTRACT the same agreement by both parties: consensus ad idem (mutual agreement) if the parties do not intend to be bound, the law will not bind them. a real intention. an object which is possible and lawful apt to create a legal obligation between the parties WHAT IS NECESSARY FOR INITIAL VALIDITY: Made between competent persons must not be voidable by: -dolus -metus -vis Roman Law 19  OPERATION OF CONTRACT a contract affects the parties to it and no one else. “Law of contracts” not law of contract. OBLIGATION ARISING FROM CONTRACT agreement were not actionable if the are not one from the 4 groups: res litteris consensu verbis Verbal contract: Dotis Dictio, Jusjurandaum liberti ( promise to free someone), stipulatio pignus GOOD FAITH CONTRACT Bona fides- contrary to any fraud in general you are liable just what you agreed on and the duries naturally connected in the scope of action. -consensus revisited consensus and the price: arrha (earnest money) the deposit is not necessary for the validity of the contract. its just a merely evidence of the completion of the contract the contract of purchase and sale is complete immdeadialty the price is agreed upon and even before the price or as uch as any easrnest is paid -consensus and res Dissensus. error, mistake every object can be owned also servitudes and rights arising fro Res futurae- emptio rei speratae- conditional sale future produce and offspring are validly purchased. obligation is suspended. conditional obligation.the contract is already valid. but in general rule, there can be no valid sale of a freedman. in case he will lose his freedom in the future. Roman Law 20  by a chance or by a future object UNCONDITIONAL SALE oblgations are not suspended. by a chance. there is no condition, you are just waiting. LOCATIO-CONDUCTIO all of them consesual contracts -lOCATİO REI -locatio operis the task is completing a piece of work (eser sözleşmesi) the risk is on the locator -locatio operarum. letting of services labour contract aynı zamanda eser sözleşmesi (?) the determination of a fixed rpice or sum of money şs an essential part of the contract. emptio et veditio- lacatio et conductio satış ile bir şeyi kullandırmak veya olmayan bir şeyi var eederek bir eser eydana geitmrke birbirinden farklı. iki sözleşme arasındaki temel fark da buradan geliyor. 10.10.2023 Two cognition sources: -CIC: Digest and Littera Florentina LAW OF ACTIONS AND CIVIL PROCEDURE action: claim carried out in front of the public authority in order to get the legal protection of what claimant supposes to be his right. D.44.7.51. Roman Law 21  action is nothing different than the right of pursuing by judicial means what is due the link between substantive law and laf of action. subtsantive rules turns into action when the contorversy brought in front of the pubic authority. 12.10.2023 Law of Actions and Civil Procedure -Cognisance stage -execution stage Roman trial change through the years. mainly 3 types. each type reflected social needs and values of roman society. 1. legis actiones most ancient form. they were based on statutes. legal actions. they were charactarized by solemnity and formality actions of the statues: legis actiones. a speech with binding effect. parties had to pronunce fixed and solemn speechs. based on formalizm and ritualism. formalism: the validity of procedure is depend on the compliance with predetermined and invariable schemes of behaviour. ius dicere: law is produced by saying it classifications of legal actiones: specific v general congisance vs executive LEGIS ACTIONES FOR EXECUTION legis actio per manus iniectionem ritualised vengeance. before the 12 tables, it was the form of self help. after the regulation of 12 tables became control form execution of previous judgement addictus: someopne who is under the power of creditor Roman Law 22  legis actio per pignoris capionem not suitable for all credits but specific kind of credits. it did nor presupposed a previous decision. its simple and aimed at patrimonial restration. no affiction, no vengeance. haciz gibi. COGNISANCE LEGIS ACTIONES Legis actiones sacramento the form of action based on sacramentum (oath) is the oldest among cognisance legis actiones. the succumbing party had eventually to give a certain amount of beasts for sacrifice. there must be a material respresenting of a thing. each party claims the ownership on the same thing. each party challenge the other the oath (sacramentum) that his assertion is true. legis actiones per iudicis arbitrisve postulationem applied on specific legal situations. a formal request to have an appointment with a judge or abitrator. legis actio per condictionem form of action is specific but abstract certa pecunia: a certain amount of money certa res: a certain specific thing was appliable regardless the source of obligation: abstract abstract notion of obligation. agere per sponsionem roman jurists introduced a new form of action for the protection of real rights namely the right of ownership by means of interpretatio. Roman Law 23  the claimant would make the defendant promise that t the goal was reached by transforming the real right into a personal right through a sponsio praeiudicailis 1. formulary trial every formality is based on gestures and speech. formality of this actions designed in order to express clearly what was going on. 1. cognitio extra ordinem established by the principate. 16.10.2023 FORMULARY TRIAL The system based on legis actiones the system had 3 major limits: Formalism: the forms of action were based on solemn and unchangeable schemes that could not be applied to new legal situation nor adapted to different circumstances. Ius civile: therefore the system could only protect legal siituations based on the ancient ius civile. it was the only source for legal situation that protected by legis actiones. however, the roman economy was rapidly envolving. Roman citizen: ius civile was only applicable for roman citizensthe trial per legis actiones was only sutiable for roman citizens. if one of the party was a peregrinus (foreigner), the trial was not applicable. LEGIS ACTIONES : THE DAWN OF THE SYSTEM written insturctions:formulas legis actiones were gradually (pulatim) replaced by a new procedure formulary trial. involving foreigners, concerning ius gentium. praetor peregrinus: established in 242 bc, as a magistature having jurisdiction over controversies involving peregirini and concerning ius gentium within his Roman Law 24  jurisdction he developed a new procedure, less formal-understanable by foreigners. legis actiones: partially used by pretor urbanus (ius civile) formulary trial: used by preator peregrinus and partially by praetor urbanus (for legal situations non grounded on ius civile) The praetor was a magistrate provided both with imperium and iurisdictio: he had judicial magistrate and political power praetordhip was annual. preaetor would isse and edictum that is binding statement intent concerning the criteria to be followed in the exercise jurisdiction, the kind of actions that would be granted (the legal claims that the Praetor was going to protect) it did not only contain the general indication of jurisdictional policy but also the models of formulae to be used in the formulary procedure. edicta trnaslaticia during the principate the edict was consolidated and issues in a definitve an inchangable ofrm: edictum perpetuum Constitutio Tanta: after this moment there was no more changes in the content of edict. THE STRUCTURE OF THE TRIAL Ius Vocatio (calling before the court: Summons) the plaintiff has to inform the denefant party about his intention to sue him. In Iure (phane in the Court, in front of the Praetor) Preliminary hearing in front of the court the claimant present his request and legal claims to the Praetor, Praetor evaluating the controversy of claim and cotorcklaim in abstract, he did not assest the controversy as the matter of fact. he did not jusge whether the facts alleged by the cliamant and defendant are true. after the hearing, the praetor decide whether the legal claim of the claimant should be pursued or disallowed. Roman Law 25  -degenare actionem: disallow the claim iudicium dare: allow the judgement——— edictio actionis: setting of the action, composition of the formula FORMULA composition of the formula is praetor’s main goal. its a written document.contained the logical scheme accrding to which the controversy had to be judge the programme of litigation that had to be followed by the judge in order to settle the dispute. model on pre-determined schemes included in the edict….. the formula was composed as an hypothetical speech. it posed different conditionals that could bring the condemnation of the defendant conditionals: affirmative: intentio (if it appears that possitive affriative conditional. it will lead CONDEMNATIO: the judge must must give the…. claim of the plaintiff in legal term negative: exceptio the defendant’s defences. expressed a legal issues that would defeat the plaintiff’s claim if it was upheld. RESULTS: Condemnatio: always expressed in monetary terms. the defendant was eventually condemned to pay sum of money. condemination could be limited by the praetor via taxatio. taxatio: quiritary law is synonym of cic Roman Law 26  LITIS CONTESTATIO (ACCEPTANCE OF THE FORMULA) after the preliminary hearing and the compostion of the formula. the psrties will be bound to accept and will not establish a new legal issue. APUD IUDICEM (phase in front of the judge) EXECUTION 17.10.2023 THE STRUCTURE OF THE TRIAL Execution had full patrimonial nature. -bonorum venditio: sale of the assests the crediotor could size all the infamia: legal shame or disgrace. social and legal consequence -cessio bonorum:voluntray surrender of the assets not the whole propert sold out. only the assets that cover the damage ? the debtor would not be subjected to infamia. Complementary Praetorian Remedies CLASSIFICATION OF ACTIONES IN ROMAN LAW Typicality of actiones in roman law: numerus clausus Roman legal order was trial orieted. unlike modern civil law in roman law a substantive legal claim can only be protected only if amd to the specific cause of action concerning that claim existed. matcing conditions of predetermined cause of action. In the legis actiones: a subtsantive claim could be protected only if the parties express their claims by performing certain procedural steps In the formulary trial: the model of formula provided in the edict could be partiakki adapted by the….. The system of writs in mediveal common law: Roman Law 27  protection based on the english kingship and it is similar to calssic system of wrtis. quite similar to ancient formulary trial. instruction about judging. how to behave how to based on writ. which are written documents that king addressed his local sheriff in order to solve the dipsute. king addressing to someone who is in charge of judging. Actio certae crediate pecuniae* action for recovering a certain amount of money in both systems sominated by the typicallity of actşons and judicial remedies. the number and content of the actiones are pre-determined. Justinian’s intitutions provide several different classifications of actions according to different criteria: characterşstşc of the intentio intentio: part of the formula that th eplaintiff -real actions -personal actions: obligations sources: -ius civile -ius honorarium characteristics of the condemnatio: penal, restroative and hybrid actions the parts of the formula ficticiae ….. concerning the powers of the judge actiones bonae fidei vs actiones stricti iuris Roman Law 28  CVILIAN (IUS CIVILE) ACTIONS VS PRAETORIAN (US HONORARIUM) the praetorian law şs that which the praestors introduced for the purpose of aiding, supplementing or amending the civil law civilian actions are grounded on ius civile. praetorians actions did not grounded on ius civile. prateors actions around ius civile would not solve a particular problem or would not produce a staisfactory result the claim in the intentio was expressed by referring to rights belonging to ius civile (in ius concepta) among civil actions concerning obligations: -actions of good faith the judge has much wider discreation -actions of strict law the judge must strictly follow the instructions in the formula Praetorian Actions: among praetorian actions one can distinguish between: -actiones in factum (actions on the cases) ***actio doli: action against the fraud) -actiones utiles (utility based actions): indirect reference to ius civile. the praetor extent the applicability of existing actions based on ius civile to hypitisis oiginially not coveer the actions. via: fictio(fiction): Praetor would follow a civil action but ewoul order the judge ro admit to suppose one of the requierements posed by the civilian action as existent even if its not. actio ad exemplum (actions by example): actions drafted Ex. Actiones ad exemplum legis Aquiliae (actions on the exemple of lex Aquilia) PENAL,ESTROATIVE AND MIXED Roman Law 29  in roman law criminal law and penal law are completely different. penal law is part of private law. which conserns delicta. penal actions: the plaintif will obtain some money, greater amount tha the loss. 19.10.2023 -TRANSACTIONS INTER VIVOS (among living persons) / acts mortis causa (transactions after a party died) -unilateral / bilateral / multilateral -formal / not formal transactions whose validity depends on described formalities -causal / abstract transactions their validity is depen on appreciable economic exchange (causa); valid regardless of the existence of a valuable substantial bargain -legal transactions with real effects / transactions with binding effects LEGAL TRANSACTIONS IN GENERAL in English law for a contract to be recognized as binding one of these requierements had to be fulfilled: doctrine of consideration (wirt of assumpsit can be used only to enforce promises with a bargain) : CAUSA contracts under seal In roman law contracts are never never never have the effect to transfer ownership if we want to transfer an ownership of ours,there are 2 phases: 1.we should agree on contract of sale -the parties only agree on the general conditions of the sale. its not enough for the transaction 2.legal act for transferring ownership this seperation principle in german is trennungprinzip Roman Law 30  abstract: its validity does not depend from a underlyting subtantive bargain among parties. its validity is rely on specfic formalities essental: and accidental: could be present in the trnascation but not Essential Elements of Transactions: -will -forma -causa (legal ground) -subjects entitled to transact the correspondent legal position- legitimatio ad actum INCONSISTENCY BETWEEN INNDER WILL (INTENTION) AND THE EXPRESSION OF THE WILL 1There are peope whose will is not considered genuine and thus reliable: furiosi, impuberi 2.in exceptional hypothesis a subject can voluntarily express a will not corresponding to his inner will. 3.discrepancy between intetion and declaration due to a mistake (error) 4.discrepancy between intention and declaration can be caused by another illicit behaviour. aiming or forcingor distorting somenone else’s will: those are the hypothesis of duress (metus) and fraud (dolus) Dolus (Fraud) dolus has two fuctions: -a standard to evaluate the misperformance by the debtor and thus his contractual liability -a criterion to evaluate the behavior of the parties at the moment of hte negotiation and thus the validity 23.10.2023 LEGAL TRANSACTIONS I GENERAL In French and Italian code, you only need a contract in order to transfer your ownership. Roman Law 31  In the moveable assets such as a house or flat, you have to sign 2 documents. Reliminary contract: Instead of the distinction contract of sale Preliminary contract: which you binding yourself to perform the second contract. Error, Dolus, Metus: Defects of consent METUS (DURESS): even more than fraud. threatining to harm other party seriously expectio not only against the party who actully threatened me but also against the third parties that took advantage in this position. İts not possbily with actio doli stipulatio is one legal transaction with binfing effects. it can be used in every form. creditor will have to give the topic of stipulatio only the matter of time in deadline cases.: conditio: certain future event when deadline is based on av event that not to be sured will it happenedd: dies CONDICIO uncertain 1. suspensive condition: uncertain future event is the condition for the debtor’s duty to arise. the validity of transcation has been suspended until the future event takes place. 2. resolutive condition: my duty to pay my debt is already there since the very momoent of the transaction. the future will cause to terminate the duty. (every month i will give you this money until Marc comes from Rome) DIES Certain future event. we dont know exactly when but sure that il will happen there are two forms: 1. Dies ad quo. the moment from which. Roman Law 32  there is a specific date to perfrom the obligation. before that date the debtor cant be forced 2. dies ad quem: the moment of the legal transaction will be terminated. MODUS normally is an ex mortis causa. kind of condition but its less legaly binding. its more based on socail liability intead of legal bind. OBLIGATIO pr: beginning of the paragrap obligation is a legal tie, chain to do soemthing in favour of the someone else. Debtor has to perform something anything the money can value to the creditor. accordint ot the rules of our country every civil trial in roman legal order would eventually a combination of a sum of money. OBLIGATIO VS. REAL RIGHTS 24.10.2023 Legal Transactions in General -Obligatio- iuris vinculum: legal boud to tie debtor and creditor OBLIGATIO VS REAL RIGHTS the essence of the obligation şs not make some things or servitudes our, but to enforce a second party to give us someting to prvodie us with a service real rights in general consist of claiming something is ours. but obligatio is pushing someone to give or do something to us. the economics of property and obligations obligations and owenerhsip were two main legal mechanisms that regulates the access to goods, enjoyment of the goods from the economical point of view. the legal ground to ask individauls ecenomical goods can be either a real right or contractual rights. Roman Law 33  property and liability rule: Calabresi Melamed In the roman law tradition real rights are called iura in re. (rights over things) they do not define a relation between persons but rather betweem a person and a thing. obligations are called iura in personam (rights constitued upon a person) because they define the legal power of someone Roman jurists focused on the distinction between actio in rem and actiones in personam rather than on the difference between ownerhsip and obligations since a person was entitled to proceed with a specific action for pursuing his interest, than he was considered to have a right give something, to do something or to perform some service: a personal action usus, fructus, abusus: a real action The formula of the rei vindicatio petitoria iure quiritium: synonym of ius civile (?) the legal claim of the plaintiff in a real action, does not depends on the behaviour of someonelse. - ERGA OMNES arbitrary clause: only interted in real actions and it was kind of a last chance for the defendant to voluntraily restore the property before the condemnation. The formula of the actio incerti ex stipulatu legal ground of my action did not depend on my right, obligations can only be instituted assume the person who promised Comparison between remedies aiming at claiming the restitution of something from someone grounded on a real right and on a personal right perspectively rei vindicatio: on the ground of the right of ownership the correspondent right is available against everyone clausola arbitraria condictio certae rei / actio ex stipulatu: on the ground of a specific duty of restitution (obligation of restitution) Roman Law 34  Intentio: dare oportere - in personam (the correspondent right is available against a specific person) no clausola arbitraria SOURCES OF OBLIGATIONS I ROMAN LAW Institutiones of Gaius Gai Res Cottidianae Justinian’s Intitutiones Contractus Contractus Contractus Delictum Delictum Delictum Variae causarum Quasi Contractus figurae (ie. undue Quasi Delictum payment or sulutio indebiti) SOURCES OF OBLIGATIONS IN ROMAN LAW two wills of the parties converted in the same path. unjust enrichment payment of the undue. the party who gives intentionally ujust enrichment is not a contract in the model sense of agreement. contract in the view of gaius is any licit legal act that arrives from an obligation. daily stuff: golden books variis causarium figuris: every kind of ……. gaius used two different classficiation for the sources: -because he changed his mind by cınsidering the better situation -because whereas intitutiones were handbook for student so basic introduction. the other work is more advanced work of his the pacts are not typical compared the contract. there is no agreement without consent the agreement may take the form of delivering of something or by the use of certain words. Roman Law 35  the existence of pacts was softer, the difference is only contracts were protected via typical actions. pacta was only protectable via excepcio. pacta is legal actions that you can add legal conditions to another act. Justinian’s Intitutiones Quasi Contracts: anything was not in the contract concept. THE OBJECT OF OBLIGATIONS AND THE CONTENT OF PERFORMANCE The essence of the obligation is not make something or servitude ours, but to force a second party to give us something or to provide us with a service possible contenct of the obligations: dare-to give something facere-to provide someone with a service praestare-the guarantee an obligation Object of obligations: possible physiscally and legally (there is o obligation in respect of impossible things - impossibilium nulla obligatio est) NOBODY IS BOUND TO DO SOMETHING IMPOSSIBLE in accordance with the law in accordance with the mores (customs) sufficiently precise does not mean at it must be assesable. it is possible to have criteria economically valuable Classification of Obligations: ALTERNATIVE OBLIGATION (Servum Stichum aut decem) the choice of the performance to provide could be delegated to the creditor or the debtor: electio Roman Law 36  normally the choice is delagted to the debtor. the creditor cannot sue the debtor if he does not perform the other option. when one the performance become impossible: if the choice was delegated to the debtor: the obligation becomes simple if the choice was delegated to the creditor: -and the impossibility is fortious -and the debtor is liable for the impossibility. the debtor must pay the aestimatio GENERIC OBLIGATIONS: concerning an object in its generic characteristic. nothing as agreed exclusively between the parties. the debtor must perform his duty in the generics. the legacy with binding effects neither the best nor the worst. if the parties did not agree on. NATURAL OBLIGATIONS (obligaitones naturales) Concern the relations between the master and slave or son. slaves and sons cannot be holder of rights because they are alieni iuris. but on the other hand, they had capacity to act. their ability to perform valid legal acts. they could validly seal a contract with third parties; but they could not hold set of rights. if the slave seal a contract as creditor, the creditor is intented to the master. its automatically transfered to the master. when slave is the debtor, the transfer to the master does not take place. the counter party in contract slave became the debtor, the counterpart had no actions to the slave (principle in the ancient ius civile). Theories regarding this principle: -despite actiones adiescticiae qualitatis: the counter party can sue the master of the slave. -soluti retentio vs indebiti solutio: roman jurist stated that when slave become debtor; even though the 3rd party could not sue neither the slave nor the master but what provided spontaneously by the slave could be legally held by the 3rd party. neither the slave or master can sue the counterparty for the Roman Law 37  reunstitaion:indebiti solutio if the performance is groundless that can be considered as unjust enrichment. in that case the debtor can sue the third party received the groundless payment by the slave, solutio retentio: eksik borç, you cannot go to the tribunal and ask for the debt. there is no valid obligation arisen from the contract. its against the customary law LIABILITY IN PRIVATE LAW obligation is a legal bind between creditor and debtor to be expected to do something. expect: it may not be happen. Modern scholars distingusih between contractual and delictual or aquilian liability (liability arisesig from the infringenment of the generic duty ‘neminem laedere’) 1. Contractual Liability Duty to proivde what agreed in the contract (Schuld) —— Breach of the contract (Failuare in eaxctly the primary duty to provide what stipulated turns into the secondary duty to refund the creditor ehrn the original performance becomes impossible: physical or legal impossibility occurring after the conclusion of the contract does not extinct the obligation: PERPETUATIO OBLGATIONIS impossibility attributable to the impossiblity cannot attributed to the culpa or negligent of the debtor, it terminates the contract. ———— Duty to compansate the creditor (Haftung) Standards of behaviors that the debtor will be evaluated. when debtor breach these behaviors, will be liable to breach his contractual obligation: Dolus: intentional wrongdoing on the part of the debtor, that is the debtor does not perform his obligation voluntarily. Culpa: negligence, the unintentional malperformance or non performance of conractual obligations; for measuring the negligence, reference is made to the Roman Law 38  Custodia: objective liability, the debtor is resposible even in the absence of dolus and culpa, such as in the contract of commodatum. these obligations are applicable for different contracts. every kind of contract designates different type of liability, according to the benefits each party get from the contract: the principle of the utility 31.10.2023 TYPES OF CONTRACTS In roman law differently from modern law, only typified contracts were protected by means (typified) actio. will and consent can do anything and a legal order cannot restrain human will by imposing only few typyfied contract: italian and french codice civile only a few contracts could be eforceable with actiones Innominate Contracts: agrrement that where protected in two conditions: -synallagmmatic (bilateral): do ut facias, do ut des; facio ut dacias; facio ut des ex.permutatio (barter, exchange of properties): dşd not considered typical. -one party should had perform his duty roman jurisprudence decided two remedies in this case: whe one of the party claiming the performance the service providing: actio praescriptis verbis(to claim the performance of a facere) the counter party spontenously perform his duty and ı refuse to give him the money (condictio causa data causa non secuta - to claim the performace of a dare) condictio: general action for recovering something from someone that took without any reason stipulatio: formal and abstract contract the first mechanism that indicates ….. PACTS Agreements attached to other contracts, in order to specify hte content of these latters are called pacta adiecta. they could be agreed for the benefit of Roman Law 39  the creditor or for the benefit of the creditor or for the benefit of the debtor. they were not protected by per se actions but useful to be adapted in each contract. the party which benefits from a pactum can require the Praetor an exceptio (in the base of contractus striicti iuris) or the iudex to enforce it (in the case of contractus bonae fidei) not interest to be included in the typical contract of mutuum, we can attach pactum to include these interests Classification of Contracts: actio and according to the way they and REAL CONSENSUAL LITERAL VERBAL CONTRACTS Stipulatio- Verbal Contracts the most archaic legal contracts are utuum and stipulatio. coming from the “sponsio”. parties requiered to use specific word, in stipulatio the same words. in the imperial era=no correspondence between question and answer requiered question and answer. the future debtor (promissor) protection of stipulatio: actio ex stipulato REAL CONTRACTS constituted by the delivery of property. (the will to stipulate the contract must be manifested by delivering the object of the contract) Real Cotracts-Mutuum the object of the contract would parished in the execution of the contract. obligation of the debtor did not regards the same things delievered by the debtor but rather the same amount and the same amount of thing. Roman Law 40  COMMODATUM DAMNUM there were 2 different communiities. Plebs and Patricians during the 3rd succession, plebian assemblies enacted two different statutes: … and lex Aquilia instead of plebicitum, its called lex beacuse of lex hortensia lex acquilia (the part of ius civile) was taking by the praetor. the praetor implemented judicial remedies to the people who suffered legal damages. model shaped the lex acquilia on the purpose of of widening the field of application. there were remedies and actions which the paretor modified and applied the ius civile to the new situations lex aquilia - introduced general regulation for damages, for the first time there was a general regulation. it contained 3 chapters: damages (the most important chapter) 3- all hyopotsesis of damages to the property the damages in theory could be sanctioned only burning, breaking and injury- smashing the property. the jursits of late republic started to interprate the word rumpere (samsihng9 in the sence of corrumpere which means spoiling, making worse. deals specific kinds of damages: killing a slave or an animal chapter 1 since killing is worse than damaging the sanction is higher. 2nd chapter (will come back on it later) only damages you can find material touch bwteen the damage and the harmul act could be santiconed according to the Gaius. 3 elements of the lex aquilia damage behavior Roman Law 41  iniuria:lex aquilia only sanctioned intentional damages. iniuria meannt in the original context that “without lawful justification”. self defence, necessity consent: is not suable for the damages.- objectively justified in the şater republic age, inuria interpreted as negligent or intentional behavior. objevtive meaning ——— referred the subjective appch of the author damnum damnum is delict. action penalem——requieres fine not compensation. damages area calculatesd according to the highest value of the property eas in the preceden 30 days. considered only economic and non-sentimental factors. Actio Legis Aquiliae as mixed action: condemnation coud bring an award exceeding the value of the damaged property, but were ….. subject to the same rules as penal actions. in particular, it could not be instituted together with a restroative action. Praetor impacted of damages by granting 2 types of actions: -utiem -in factum contract of service: Locatio operis —- the relationship between the patient and doctor if doctor acts negligently (the debtor), he has contractual liability. besides that he caused the damage of my property. he is also liable under lex aquilia. why? because he acted negligently produced damage to my property, he did it with his body to body, performed corrumpere. in this positions we have to choose between to claim for restoration of the damage on the basis of contractual obligation or lex aquilia liability. contractal is better because of the burden of proof. you only have to proof that you suffered damage, the defendant has to proof that your suffer is not caused by him. the only reason to choose lex aquilia is the compensation is higher than the actual value of the property. Roman Law 42  13.11.2023 ROMAN LAW OF PROPERTY ALL THE REGULATİONS CONCERNİNG THE POWERS ON THİNGS law of property in general meaning: acquisition and exercise of proporitery rights: they claim the immdeaditae power on property propertiery rights could be legal or factual legal: ownership and limited real rights factual:possessionnfactual rights were protected by roman law Possessio: Possession to have right of ownership is you can prove that you have the title over the propery. it means the owbership is consitituted over your thright over something, you can prove modern acquistion you can prove that something happened constituted the ownership of your to have possessi: you can prove your material control on something. not only material control of property, controlling the extension the legitimate power over a thing Labeo says, posession comes from the idea of sitting over something. you sit on something whe you want to control and communicate over something we know now the posessio coming from from the word connected the power. it is an attitude of power in normal cases the owner is also the possessor. but either the owner could not prove the ownerhsip what happens if the owner losses his possessio over the property? real actions and rei vindicatio aims to recover the physical control over the property rei vindicatio: is a mean to recover the physical control on a thing the practical function of ownership indeed dislpays wheb the owner şs not the possessor. its the time when real actions has the goal Requierement of Possession: Roman Law 43  possession it not mere the physical control over something. it is not enough. also the intention to keep a thing as my own is requiered: possidere corpore et animo the intention to keep the thing as my own: animus res sibi habendi Forms of posessio şn order to acquiere possission physical and spiritual elements are requiered corpore at animo: res derelicta: someone completely abondining his possession. very exceptional. therefore the roman jurist wanted to be so sure about the possessor’s intention solo animo: possessor-detenttor, i lose possession dk.33 Cases of lack of animus possidendi.: when someone has the material posses for someone else’s sake: pro alieno besetz: posssession 46.dk. interdicta. possession protected by inderdictas. after ı find the horse, ı wpuld not become the owner immediately. but i would become owner of the propterty after 1 year in roman. after 10 years, although the previos owner could prove his acquisiton of his ownership, in the meanwhile i can prove my ownership via adversed possession: possession into the right of ownership. usu captio 3rd scenario: i got the possession of wild beast. which was not in the ownereship of someonelse. in that case ı wiould become immediaelty the owner. occupatio: possessio was a matter of fact and not rights bt ir is a matter of fact which display praetorian lae and ius civile. different forms of possessions protected by them. possession grounded on material and spiritual control. there is anouther 3rd element: in order to protect possession, it should entailed causa or titulus: lawful legal reason to keep the possession. 55.dk. Roman Law 44  Legal effects of pos then possession grounded on titulus, the protection is stronger. interdicta: recovery possession on the objects titulus: legal affects also in the field of ius civile before the expiring of time 59.dk.. factual situtation turns into the legal situation PROTECTION OF POSSESSION: POSSESSIO AD INTERDICTA possession which entitle to interdicts Interdicta-Interdicts the main judicial remedies. they are issued by the prateor to prohibit a person from acting or perserving with n act, ot demanded that the performs certain act. they were considered to be admisintrative acts: magis imperii wua iurisdictionis Interdicta possessoria: the praetor prohibited the disturbance of the de facto physical control of a thing. regardless any inquiere over the holder of the ownership, the owner 01.05.dk. furthermore, they laid against anyone who violated the stage of pact (possession) whether he had or not the correspondent right to own Interdicts and rei vindicatio the damin of real rgihts is so conservative here the syste says, if ypu want to change the factual situations you had to bear a burden that you have an abstract title. the idea is: only abstract title can be protected: that makes the idea so controversy the defendant could not defend himself asserting and proving that he was the owner, the interdicts were grated only if the plaintiff did not obtain his possession by force, secretly or by grant at will. he could defend himself Roman Law 45  asserting that the plaintiff himself had earlier acquiered the possession by means of violence caessenia publius dolabella 14.11.2023 the onlu judicial remedy L use is the contractual action arising from the contract of lease with A. A-L: Actio Locati L can sue A due to the breach of contract A can sue J due to rei indicatio or interdicts for restoring possession or actio furti Roman law of rpoperty: real vs personal actions I can only chage tha factual situations by rei indicatio. otherwise, 12.dk. possession cannot be changed unless we indicate rei vindicatio REI VINDICATIO Action which protected ownership. the most important among the real actions. defendant had to be the possessor of the thing. 26.dk. for defedant its sufficient to proof 29.dk. the formula of the rei vindicatio 1.the intentio: 19.dk. a positive condition for the condemination. the defendant is condemned when the plaintiff proofs what is wirtten in the intentio is true. if the plaintiff want to the defendant to be condmenden, he has to rpoof his right to ownership. 2.clausa arbitraria 21.dk. Roman Law 46  3.condemnatio you can prove that in the past one of the legal facts to which the legal order constituted right to ownerhips occured. possession is protected, you cannot go through the possession without rei vindicatio in German BGB it considered to be the priciple in the constitutional rank Natural law and civil law a Original and drivative modes of acquisition 46.dk. devils’s proof: probatio diabolica usucapio and duty to warrant auctoritas: solutions beacuse its almost impossbile to fulfill the burden of proof the seller will be obliged to warrant autoritas of the buyer: if the buyer sued by a third party due to the ownerhip, the selller has to join the trial and defend the position of the buyer. 3 main hypotheis of derivative modes of acquisition: 1. Mancipatio the most ancinet form of transferring ownership. could be only used to concert res mancipi: particularly valuable for the roman economy (slaves, estates in italy, animals for agricultural purposes: all the animals can be domesticated by the neck) only res mancipi transfer via mancipatio. ius civile institutes mancipatio therefore only roman citizens could take place in the ceremony of mancipatio there was no real exchange of money in the ritual they were exchanging bronze. the price is the ritual was theorotical, the parties exhanges oney after the ritual. effects of mancipatio: transferring ownership Roman Law 47  create binding effect 2. In iure cessio private legal transcation for transferring ownership between mancipi and res mancipi (?) 3. Traditio 01.08.dk. legal transactions between inter vivos. first two models were formal and abstract. the validation of transfer is not based on the validity of the contract because there is a ritual. traditio is informal but causal. the act itself is consisted the transfer of possession. legal effect of transfership based on causa. traditio: delivery 01.10.dk. 01.16.dk. traditio only for res nec mancipi Original modes of acquisition of ownership USUCAPIO: uyuşmazlık konusu şeyin önceki sahiplerini kanıtlama yükümlülüğüne kaşrı getirilen bir çözüm existence of my ownerhsip rather than the derivative modes of acquisition 01.19.dk. requierements: res habilis: not everything was cavaple for acquiere of usucapio (ie. public or religious goods,etc.) in commercio and not furtiva: stolen things uninterrupted possession for a prescribed period of time: the institute could be used more easily and commonly iusta causa: possession grounded on a title (possession civilis) Roman Law 48  bona fides: the acquision of possession must take place in a good faith the possesser had to be in good faith when the possession started: mala fides superveniens non nocet 16.11.2023 Original modes of acquisition of ownership: 1) descending from the take of possession of a thing -occupatio and inventio -usucapio 2) Accessio movable to immovable Inaedificatio Implantalio immovable to immovable Occupatio and inventio: Inventio: invetio occurs when someone take possession of something which had an owner who hided them and forgot. paulus points that — Possessio Civilis: when the possession, besides physical control and intention to keep the thing, was also grounded on a legal title for possession (iusta causa possessiones) it had in specific circumstances the legal effect of making the possessor owner according to ius civile Traditio: possession grounded on iusta causa usucapio: possession of something belong to another person for a certain,prescribded period converted the possessor into owner according Roman Law 49  to ius civile. Actio publiciana (for recovering possession civilis) and exceptio rei venditae ac traditae (for defending possession civilis) Actio Publicana: Actio publiciana was an actio in rem granted by the praetor to the possessor ad usucapionem. Originally, it was granted in two specific hypotheses of possession with iusta causa empti: I gain possessio of something within contract of sale, but in these hypothesis the delivery of object is not enough immediately to have right of ownership: 1. traditio res mancipi: The quiritary owner of a res mancipi sold it to A and conveyed to him by traditio; B was now merely possessor but he might acquire quiritary ownership by usucapio; before the end of tempus usucapionis B lost possession; rei vindicatio is not available to B, since he’s not owner according to ius civile; 2. conveyance by non-dominus. When someone gets the possession through traditio and on the ground of a valid agreement of a thing which was not property of the transferor. delivery of a thing from someone who is not the owner of the property It was an actio ficticia as it was based on the fiction that the period prescribed for usucapio already expired and that the bonitary owner had already become dominus ex iure Quiritium by means of usucapio. 1. Aquilius iudex esto. Si quem hominem A. Agerius emit et is ei traditus est anno possedisset, tum si eum hominem de quo agitur ex iure Quiritium euis esse pareret, is ea res arbitrio C. Aquilii iudicis A. Agerio non restituetur, quanti ea res erit tnatam pecuniam C. Aquilius iudes N. Negidium A. Agerio Condemnato, si non paret absolvito 2. Aquilius shall be judge. If A. Agerius would acquire the Quiritary ownership on this man (that he bought and who was delivered to him) , and this property will not be restored [by the defendant, the judge must condemn the defendant to pay as much money as the property is worth. If it does not so appear, then he must absolve the defendant. Roman Law 50  in the case that he would possess this man for one year 1) The quiritary owner of a res mancipi sold and delivered it (by means of mere traditio). As the seller remained owner, he might sue B with rei vindicatio. The praetor though accorded this exceptio. 2) A non-owner A sold and delivered a res mancipi or nec mancipi to B. If someone sue B with rei vindicatio, B can allege the exceptio rei venditae ac traditae, unless the plaintiff was the real owner wich in good faith ignored the sale. In this case, the plaintiff would respond to the exceptio rei venditae ac traditae with replicatio domini.: 20.11.2023 Limited (subordinated) Real Rights IURA IN RE ALIENA (real rights on someone else’s property) these are the real rights established by the owner of a property in favour of the holder of the relevant right. limitation could only be empossed by means of an agreement between the owner and the holder: general principle they are protected by the in rem actions. two main kinds of iura in re aliena: the right of enjoyment over someonelse’s property: praedial (servitude of pass or drive,etc.) and personal servitudes (ususfructus) securement of credits: real securities these rights are distinguished from the right of ownership. right of own. is autonomous and unlimited (traditionally called); however, these rights are limited, unautonomous and subordinated. the right of ownership indicates a general power over something. unlimited in time and content.: general principle (exception:usucapio) as real rights, they are sanctioned and protected by in rem actions: they were institutable erga omnes.: the right could be instituted against anyone who infringed or violated the right included the owner of the right. Roman Law 51  19.dk. vindicatio servitutis/usufructus (actio confessoria) was the affirmative in rem action for the recognition and enforcement of a servitude (personal ie. usufruct or praedial) interdicta de servitutibus e interdictu quem usufructum as real rights, they could never be established by virtue of a mere contract. Contracts in Roman law could never have the effect to transfer or establish a real right. The agreement between the parties could not a such constitute a servitude but ofcourse normally furnished -in iure cessio -mancipatio or in iure cessio deducto usufructu/deducta servitute -testamentum/legatum per vindicationem -adiudicatio usucapio explicitly prohibited for praedial servitudes; as for the usufruct, is difficult to imagine possession as usufructuary as different from possession as owner. LIMITED REAL RIGHTS OF ENJOYMENT: SERVITUDES Marcianus invented this classification servitudes are either personal, as use and usufruct: or real, as the servitudes of rustic and urban estates. Servitudes: modes of termination the right consitituted for a specific person, when he dies the right terminates:personal servitudes servitutes praediorum: one can especially appreciate this difference in the modes of termination of the two categories of servitudes. termination of servitudes: -confusio or consolidatio: when the owner of servitude become the owner of the thing upon the which right was constituted. constituted for the benefit of estate’s itself. because they were considered pu the benefits of estate instead of person Roman Law 52  -non usus: if I don’t use my right, i will lose it. a valid way to terminate servitude -only personal servitudes (namely usufruct): death or capitis deminutio of the holder; expiration of the time established holder of the praediorum servitudes are changing. the holder is the estate itself. Numerus clausus principle: there was a fixed number of servitudes with an established, typical content. In roman law, contrary to ancient german law from which the feudal system developed. PRAEDIAL SERVITUDES They were the burdens imposed on an estate (immovable property) for the benefit of a neighbor estate in order to objectively facilitate its use they are adhered to land rather than to persons. holder of the right is the changer of the owner of the estate. requierememts: 1.utilias praedii: utility of the estate. objective utility for the exercise of ownership of a specific estate 2.vicinitas: vicinity. content: the content could only consist in a pati (toleration by the owner of the praeditum serviens of an acitivity on his property by the owner of the praedium dominans-so called possitive servitudes) or in a nonfacere (that is the duty of the owner of the praedium dominans to abstain from specific activities virtually Iura praediorum rusticoru (rural praedial servitudes) Iura praediorum urbanorum (urban praedial servitudes): they were considered as res nec mancipi. most of them concerned a non facere (negative servitudes) Roman Law 53  -servitus altius non tollendi- the right to forbid a neighbor (the owner of the servient estate) to raise the height of his building -servitus ne luminibus, prospectui officiatur- the right to forbd a neighbor form erectşng anything which could cut off the light failling into the dominant estate or that might obstruct the view from the dominant estate -servitus oneris ferendi- the righr to raise…. Personal Servitudes: they are usufructs. were design for the benefit of the holder’s individual capacity. the holder of a personal servitude did not have to be the owner of land. therefore, they had limited duration and were terminated by the death of the holder. usufruct is nor limited in the content. however, personal servitude is limited in time. 21.11.2023 ROMAN LAW OF SUCCESSION: General Features the death of a person which was entitled with rights (or charged with obligaitons) poses the question of their destination. Virtually, the legal system could establish the termination ıf every legal relation pertaining to the dead person (legal roman term: de cuius) In fact, roman…. Institutes of Law of Succession 1. the legal order identified signle legal person and all the legal conclusions based on that person: (universal) succession-hereditas. this could be achieved with 3 mechanism: will of the cuius (testament): testamentary sucession default rules : ab intestate succession: succession of someone who died without a testament peremptory rules: succession contra tabulas: if the testament dont consider the closest amount members of the family of cuius, the testament Roman Law 54  could be overruled and legal order can replace the cuiu’s testament. succession against tabulas, testament heres: the guy who is changer of the situation of cuius 2. legacies-legata cuius transfer at least something from someone different than the heres. that thing will not be included in the universal succession. its particular succession; a specific right 3. trusts-fideicommissa (the notions are not the same. both of the are the transfer of ownership.) In roman law only used for succession. before i die i transfer all my assets to someone i trust so after my death he can transfer the assets to someone we agreed on. - PROBLEMS UNIVERSAL SUCCESSİON testamentary succession: author of the document coukd not provide us the real interpreation of the document because he is dead. the point is, finding the genuine will of the cuius. ab intestato succession: closest family members try to figure it out what the cuius want on some matters contra tabulas succession (peremptory rules;ius cogens): should the testator be entitled to allocate the whole familiar patrimony outside the circle of the closest relatives by testament? can his freedom to institute heir be limited? - HISTORICAL DEVELOPMENT Ancient ius civile: there were only 2 ways: testamentally succession and without testament highlights: formalism, family as political and economical unity Roman Law 55  Ius honorarium: the universal successor, would not become owner according to the ius civile. the praetor could not fully overrule ius civile. therefore the heir could not become fully owner of the everything according to ius civile. instead of that they had strong praetorium protection of possession. bonorum possessio vested with praetorian protection - usucapio hereditatis- heres according to ius civile. highlights: informal, family as community of individuals Roman law of succession. the impact of ius honorarium the praetor was not the authportiy to overrule ius civile. its always formally