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(309 words)

Author(s): Gamauf, Richard (Vienna)
[German version] Under Roman law an obligation to pay damages always required guilt ( culpa, negligence, or   dolus , criminal intent). In interpreting the lex Aquilia (probably 286 BC), jurisprudence developed a distinction between the forms of guilt, dolus and culpa: culpa is the offence against an objective standard of care ( diligentia, care on the part of a diligens/ bonus pater familias). Culpa was also used to describe guilt in general. The Roman penal code knew only few crimes that were punishable also in the case of negligence. In the case of bonae fidei iudicia there initially wa…


(137 words)

Author(s): Gamauf, Richard (Vienna)
[German version] In Roman law, in cases of infringement of contract the interesse, compensation of damage, was often measured according to the interest of the claimant in its being properly complied with ( quod eius interest). In evaluating this, Roman jurists resorted neither to stringent guidelines nor to a schematic comparison of assets (so-called differential method), but estimated the interesse according to the specific circumstances of the case. These included, for example, the value of the matter not accomplished, the loss in value of a defective…


(146 words)

Author(s): Gamauf, Richard (Vienna)
[German version] ‘Scale-holder’. Several formal acts of older Roman law ( Mancipatio , Nexum , solutio per aes et libram) and legal transactions modelled on them ( Coemptio , Emancipatio , testamentum per aes et libram etc.) required the involvement of a libripens and five witnesses if they were to be valid. These had to be Roman citizens who were of age. Originally the libripens probably actually weighed the unminted copper ( aes rude ) that served as a means of payment in the cash purchase transaction ( mancipatio). Later the weighing became symbolic and ultimately was reduced to…


(224 words)

Author(s): Gamauf, Richard (Vienna)
[German version] Castration is common in many of the high cultures of antiquity. Voluntary castratio occurs inter alia from religious motives (e.g. priests of Cybele, Christian ascetics) or for therapeutic purposes (e.g. in hernia cases). Castrated slaves are attested in Greece from the end of the 5th cent. BC, in Rome from the mid 2nd cent. BC; they are mostly employed as personal servants or as catamites. At Hellenistic courts, eunuchs serve inter alia as tutors or as military commanders. They often fill highly influential positions, even at the Roman imperial cour…


(290 words)

Author(s): Gamauf, Richard (Vienna)
[German version] Much about nexum is in uncertain owing to ambivalent sources. The current opinion is that in early Roman law, nexum was a formal loan transaction concluded with copper and scales ( Mancipatio ) [4; 6; 7; 8]. Nexum was the precursor to the credit transaction. Although it did not generate claims for repayment, it enabled the lender to get hold of the borrower's person. After repayment, the personal liability was released by a transaction of the same form ( nexi liberatio, solutio per aes et libram) [6. 128-131]. If repayment was not made, enslavement (M anus iniectio

Emptio venditio

(857 words)

Author(s): Gamauf, Richard (Vienna)
The emptio venditio applied to the exchange of goods for money. The detailed interest taken by Roman jurists in this economically important contract has led to the development of many legal institutions that have left their fundamental stamp on the patterns and procedures of civil law to this day. [German version] A. The precursor: Mancipatio In the oldest form of Roman law, purchase was a cash transaction: with the   Mancipatio , the conclusion of the sale, the payment of the price and the transfer of ownership of a   Res mancipi took place as one single legal p…


(471 words)

Author(s): Gamauf, Richard (Vienna)
[German version] (in the Twelve Tables noxia; from nocere, ‘to do harm’). Originally a damaging act or injury, in the usage of the classical Roman jurists of the 1st-3rd cents. AD it designated more specifically the liability for damage by persons under the power of a father or a master (cf. Dig. 9,4) or by animals (see pauperies ). In the most ancient Roman law, the basic premise for noxal liability was the personal criminal liability of persons under the power of a father or a master. Since they were under the legal authority of others, they were immu…


(153 words)

Author(s): Gamauf, Richard (Vienna)
[German version] ( privatum) is a forbidden act whose punishment is not, as for a   crimen (e.g. high treason, murder) pursued by a state body, but is left to the injured party himself, vengeance being gradually resolved in a claim for monetary compensation (  poena ). The latter usually amounts to a multiple of the damage sustained. There is delictum in ius civile (e.g. iniuria, damnum iniuria datum, furtum) as well as praetorian delictum (e.g. dolus, metus, rapina). Obligations on the defendant's part arising from delictum are non-heritable; many culprits accept cumulative liab…


(286 words)

Author(s): Gamauf, Richard (Vienna)
[German version] Term used both for banishment and for the place of banishment. During the era of the Twelve Tablets (5th cent. BC), it was probably already permissible for the perpetrator of a capital offence to avoid the punishment (blood revenge) by voluntarily exiling himself from Roman territory. In the iudicium populi (trial in the People's Court) the accused had the option of voluntarily going into exile up to the point of sentencing; after this the magistrate responsible for enforcing the judgment could sanction the escape. There were ar…


(179 words)

Author(s): Gamauf, Richard (Vienna)
[German version] The retentio (literally 'withholding') of one's own service in order to put pressure on an opponent to perform the service he owes is encountered frequently in Roman law. In strict law actions ( ius strictum, ius C.2.), the retentio was effected with a plea of bad faith ( exceptio doli ) in bonae fidei iudicia ('actions in good faith', fides II.) through informal objection. For example, the bona fide foreman has a retentio against the owner (Cels. Dig. 6,1,38) for his expenses, as do the custodian (Mod., Collatio legum 10,2,6) and the borrower (Iulian…


(367 words)

Author(s): Gamauf, Richard (Vienna)
[German version] Generally in Latin, 'exemption' from something (e.g. of a slave from work, Columella 1,8,19), esp. 'discharge' from obligations (or a 'recompense' paid in exchange for them, Tac. Hist. 1,46). In the language of the jurists, vacatio is used e.g. for a 'dispensation' from assuming a cura [2] or tutela ('management of business for a minor/trusteeship' or 'guardianship', s. excusatio ) and 'exemption' from legal public obligations, such as the compulsory service and tributes common in Late Antiquity ( munus ), or military service. Vacatio from munera was granted for v…


(245 words)

Author(s): Gamauf, Richard (Vienna)
[German version] Pauperies (perhaps from pauper, poor; the connection is questionable) according to the Twelve Tables ( tabulae duodecim ) referred to damage caused by a four-footed animal ( quadrupes) (tab. 8,6; Ulp. Dig. 9,1,1 pr.). Although originally the cause was attributed to the animal demon, legal action was taken not against the animal itself, but against its handler. In classical Roman law, the owner of four-footed (working) animals could be held liable for endangerment through the actio de pauperie (an analogous actio utilis applied to other domestic animals), where …


(196 words)

Author(s): Gamauf, Richard (Vienna)
[German version] By praeda, Roman jurists primarily meant war booty (Labeo Dig. 49,15, 28). Under the ius gentium ( ius C 2), original acquisition of property by occupatio was possible in the case of items taken from the enemy (Gai. Dig. 41,1,5,7). Captured enemies were enslaved (Florentinus Dig. 1,5,4); conquered land was forfeit to the Roman state. Soldiers ordered to plunder were bound by oath to deliver up all praeda. This was mostly sold by commanders, and the proceeds ( manubiae) distributed among the soldiers. The commander and the aerarium (public treasury…

Lex Aquilia

(462 words)

Author(s): Gamauf, Richard (Vienna)
[German version] ‘Law proposed by Aquilius’. The lex Aquilia de damno iniuria dato (‘on unlawfully inflicted damage’) was a plebiscitum which according to ancient tradition had to be dated from 286 BC, but according to modern economic historical analyses is from around the turn of the 3rd and 2nd cents. BC. The designation lex was consistent with the fact that plebiscites had the effect of laws. The lex Aquilia had three chapters. The first and third regulated delictual compensation (cf. Dig. 9,2); the second (which soon passed out of use) gave a claim for damages against an adstipulator

Noxalis actio

(629 words)

Author(s): Gamauf, Richard (Vienna)
[German version] A. Definition, Formula Noxalis actio was an action because of a wrong done ( noxa ) by a person who was in someone else's power or because of a damage done by an animal ( pauperies ). NA was part both of the ius civile and the ius honorarium (Gai. Inst. 4,79; ius ). Because the offender was not the person who was liable, there was a special formula : The statement of claim ( intentio ) of a civil NA , which contained the conditions for condemnation, stated the injury done by the person in someone else's power, but the condemnatio , which specified the penalty…


(240 words)

Author(s): Gamauf, Richard (Vienna)
[German version] Offence against Roman morality ( boni mores, Mos maiorum ) or an immoral way of life, e.g. prostitution. In the Republic, the punishment was part of the  cura morum ('morality police') of the censores ; the praetor could also impose restrictions for turpitudo (e.g. prohibition of representing others in court, postulatio ; Ulp. Dig. 3,1,1,5). Although immorality was not equated with illegality  (Paul. Dig. 50,17,144), immoral legal actions could be denied enforcement: in formal actions the praetor refused a complaint (Pomp. Dig. 45,1,27 pr.) or granted an exceptio dol…


(683 words)

Author(s): Gamauf, Richard (Vienna)
[German version] A. Historical development The mutuum was a credit transaction (Loan). In addition to formal loans nexum ) there was also the informal mutuum, presumably from quite early on. In this, money was lent on short-term loan without charge, recallable at any time (cf. precarium ). If the recipient was not able to meet the demand for repayment, they were liable as in the case of embezzling another's money ( aes alienum, as imprecise monetary debts, particularly loan debts, were described until the Imperial period). Gamauf, Richard (Vienna) [German version] B. Term in classical…


(809 words)

Author(s): Gamauf, Richard (Vienna)
[German version] A. Meaning Originally ‘expenditure’, ‘loss of assets’; in legal usage ‘damage’. According to Roman law, only material loss can be counted as a replaceable damnum. Unlawful interference with other legal rights, e.g. insult or physical injury of a free Roman, are, to the Roman view, not assessable in monetary terms ( liberum corpus non recipit aestimationem, Gaius Dig. 9,1,3). In these cases the victim may possibly be allowed an actio iniuriarum which is not meant to provide compensation for damages but to make amends through the payment of a fine (  iniuria ). Gamauf, Rich…


(164 words)

Author(s): Gamauf, Richard (Vienna)
[German version] On the one hand, a generic term for unlawful behaviour in general and for illegality and fault in respect of the   lex Aquilia , and on the other hand the term for an offence including wilful physical injury and insult to honour. The Twelve Tables provided retaliation in kind (  talio ) for serious cases of iniuria. This was not applicable in the case of agreement over damages (  pactum ). In less serious cases there were only fines which in general ultimately supplanted the talio. The amount of the fines varied with the seriousness of the deed and the social statu…


(764 words)

Author(s): Gamauf, Richard (Vienna)
[German version] A. Concept In Roman Law a multa was a fine which was mostly imposed for non-compliance with a magistrate's orders and unlike the private poena or a reparation payment ( damnum ) was received not by an injured party but by a public fund (p opulus Romanus, municipium, temple etc.; the verb multare, by contrast, covered every form of penalty). As multae were originally paid in cattle, until the end of the Republic every multa had to be formally payable in cattle ( multa iusta, Gell. 1,11, 4), although in fact money was paid. Gamauf, Richard (Vienna) [German version] B. Republic Auto…