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Mancipium

(290 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] (originally mancupium) initially denotes the Roman legal transaction later called mancipatio . Mancipium is one of those ‘ancient Roman legal terms of transparent clarity’ [2]; it appears to denote an act of taking something by hand. It is thus interpreted in ancient etymology (Varro, Ling. 6,85; Gai. Inst. 1,121). But another interpretation is more probable: just as aucupium (bird-trapping) derives from auceps, so mancupium derives from manceps; auceps denotes the bird-trapper ( avem capiens), manceps one who grasps domestic power ( manum capiens) rather than …

Fin­is

(356 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Border, particularly between properties (e.g. Celsius, Dig. 41,2,18,2). The boundary stone (  terminus ) was sacred; anyone who ploughed it out of the ground was cursed ( sacer; Paul Fest. 505,20f. L.) together with the team of oxen, according to a regulation ascribed to  Numa Pompilius. The fields were separated by a 5 feet wide ridge that according to the Twelve Tablets (tab. VII 4) could not be acquired (see   usucapio ) (Cic. Leg. 1,12,55f.). The border adjustment suit ( actio finium regundorum) was an actio in personam (personal suit) and yet it was pro vindicatione r…

Rei vindicatio

(691 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] ('laying claim to a thing', still ' Vindikation' in modern German legal usage). Originally the (ritual) laying of a staff on an object or a slave; in Roman law of the Principate, the claim of a Quiritarian owner (i.e. one in possession of Roman citizenship), not in possession, against the possessor for establishment of ownership, relinquishment and, where called for, pecuniary compensation. The RV superseded the ancient sacramental action in rem ( legis actio sacramento in rem) with its solemn rituals before the president of the court (king, consul, praet…

Precarium

(310 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] ('that which is requested'). The grant of an item until revoked (“... quod precibus petenti conceditur tamdiu, quamdiu is qui concessit patitur”, Ulp. Dig. 43,26,1 pr.) in Roman law. The origin of precarium was the loaning of land by patrician landowners to their clients. Elsewhere, for example, a pledgor could retain the pledged item as precarium (Iulianus Dig. 13,7,29), or a credit purchaser might receive the purchased item as precarium (Ulp. Dig. 43,26,20). Initially, precarium was not a legal relationship, but solely an actual grant which could be te…

Submissio

(147 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] ('placing as alternative') in Roman law is found as replacement acquisition in case of usufruct, in dotal law ( dos ) and in the fideicommissum . For example, if usufruct ( ususfructus ) of a herd were bequeathed (on this in detail, Dig. 7,1,68-70), the usufructuary first had to replace dead or unfit animals with young from the herd. Otherwise, he was liable towards the owner. The ownership situation in the submissio was disputed. Accord…

Possessio

(700 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] 'Possession', primarily the actual control over a thing, but in contrast to dominium ('ownership') as full legal power. As a technical term in Roman law, possessio has partly real, partly legal features ( possessio non tantum corporis, sed et iuris est, Papin. Dig. 41,2,49,1). For example, Ofilius and Nerva filius (Cocceius [6]) consider the acquisition of possessio to be a de facto matter ( rem facti non iuris, Dig. 41,2,1,3). Therefore, a pupillus (minor, minores ) without the agreement of a guardian ( tutoris auctoritas) and even a furiosus (mentally ill person) s…

Accessio

(242 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] (‘Addition’) means: 1. enlargement (opposite: decessio, see  Dig. 39,3,24,3), 2. accessory (opposite: res principalis, Dig. 33,8,2), which shares the legal fate of the ‘main thing’, as long as the association lasts (Dig. 6,1,23,5; also 34,2,19,13 for precious stones encased in silver and gold), 3. the possession period of a predecessor, additionally reckoned to the successor for protection of title ( interdictum utrubi) ( accessio temporis or possessionis, Gai. Inst. 4,151; Dig. 44,3,15,1), though according to sources not for usucaption (cf. Ins…

Pignus

(995 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Roman law of pledge developed considerably by virtue of credit guarantee practice. At first it was a law of forfeit: at the expiry of the guaranteed debt, the pledgee received ownership of the pledged item (which until then had been conditional subject to deferral), with the protection of the rei vindicatio (the claim to ownership). This is the form of the pignus in the formulae described by the elder Cato (Cat. Agr. 146,2,3, 149,2 and 150,2). Forfeiture (into slavery) was also, for instance, the fate of the (pledged) hostages surrendered in…

Usucapio

(683 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] (from Latin usus, 'use', and capere, 'to take in hand'), 'usucaption', the 'acquisition of ownership by use': acquisition of civil property ( dominium ) - land and other objects - on the basis of one or two years of possession in Roman law (Mod. Dig. 41,3,3; Ulp. 19,8; Boeth. ad Cic. Top. 4,23; Isid. Orig. 5,25,30). Usucapio was only available to Roman citizens (Gai. Inst. 2,65). According to the Twelve Tables ( tabulae duodecim , Tab. 8,17) usucaption of stolen goods was excluded (Gai. Inst. 2,45; 49). However, according to a lex Atinia (late 3rd cent./early 2nd cent. B…

Bona

(585 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] A person's property; the exact meaning depends on the context. In one sense, bona means the totality of goods in a person's possession, while the legal right to possession may be another matter: with naturalis appellatio bonorum, deriving etymologically from the word beare = to make happy, which is relevant for the fee-liable missio in bonis and venditio bonorum, possession is unrestricted (Ulp. Dig. 50,16,49). More tightly defined and restricted, on the other hand, is possession in terms of civilis appellatio bonorum; this means possession only as   dominium (Ulp. loc. cit.). As

Fructus

(384 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] (‘Fruits’). Objects extracted from another object (‘mother object’), such as agricultural crops and tree fruits, wood, the young of animals, hair, wool, milk (Dig. 22,1,28 pr.; 7,1,48,1). Fructi belonged to the owner of the mother object before they were separated from it (Dig. 6,1,44), and basically also afterwards. A security (  pignus ) to the mother object was basically also extended to the fructi, if after separation they became the property of the person hypothecatinging the object (Dig. 20,1,1,2; 29,1); the hypothecary right of the lessor comprised also fructi…

Superficies

(320 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] In Roman law, the hereditary authority to maintain a building on another's land (heritable building right). …

Nuncupatio

(197 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Nuncupare ( nomen capere) was pertinently interpreted by the jurist Cincius as ‘express accurately, using the appropriate words’ (Fest. 176), and later by the jurist Gaius as ‘name overtly’. The Twelve Table Laws (tab. 6,1) and the augural formula spoken on the Citadel (Varro Ling. 7,8) indicate by lingua nuncupare the tongue as a tool for conveying thoughts in words. Verbis nuncupare in the devotional formula of P. Decius Mus (Liv. 8,9,8) is ta…

Fiducia

(769 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Term for ‘fiduciary agreement’, (e.g. Paulus, Sent. 2,13,1) also for the object held in trust. Fiducia could be found in various aspects of Roman civil law: In the law of persons, there was the coemptio of women (a form of   mancipatio , Gai. Inst. 3,113), not only for the purpose of marriage ( matrimonii causa), but also in the context of the transference of property on trust ( fiduciae causa), e.g. in order to avoid one kind of guardianship (  tutela ) and to establish a different one (of a tutor fiduciarius) (Gai. Inst. 1,114; 115). The law of persons and obligations …

Dominium

(211 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Originally signified the domestic power of the   pater familias (Ulp. Dig. 50,16,195,2: in domo dominium). From the beginning of the Imperial period dominium occurs in the sense of property (Labeo Dig. 18,1,80,3; Sen. Benef. 7,5,1; 7,6,3). In the early period, the Roman conception of property is uniform, being understood at first solely as dominium ex iure Quiritium: property rights accessible to Roman citizens and at the limit to peregrini with   commercium . Later on, in honorary law established by the   praetor ( in bonis habere,   bona ), allowed…

Res mancipi

(133 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] In Roman law, RM were objects which (Gai. Inst. 2,22) were transferred by mancipatio to another person. RM could be slaves, cattle, horses, mules, donkeys (the latter according to the Sabinian school from birth, according to the Proculian school only from being tamed: Gai. Inst. 2,15); also Italian land (Gai. Inst. 1,120), servitutes rusticae such as via, iter, actus, aquae ductus (rights of way, right to drive cattle, water rights; Ulp. 19,1) and provincial land of the ius Italicum (Gai. Inst. 2,14a). With the disappearance of the mancipatio, the importance of the …

Acquisitio

(170 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Not used as a noun until late (for instance Ulp. Dig. 44,4,4,31; epit. 19), formerly and more frequently acquirere, means acquisition. The development from verb to noun corresponds to a general tendency towards a substantival style, as shown by a comparison with alienatio/alienare (‘disposal’,   alienatio ). First the disposal, then the acquisitio were worded in clear terms and made into a legal question. Res (‘things’), were acquired singly ( singulae res) or as parts of a whole ( per universitatem), (Gai. Inst. 2,97). Acquisition was carried out under ius civile, e.g…

In iure cessio

(232 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] The in iure cessio of Roman law is an act of the transfer of a right in the form of a fictitious trial, the   legis actio sacramento in rem . It is - like the   mancipatio - not dependent on the existence of a cause in law ( causa), e.g. of a purchase agreement, but rather is ‘abstract’. The in iure cessio is concerned with items in which Quiritic ownership is possible (e.g. not provincial plots of land), and is only available to Roman citizens (Gai. Inst. 2,65). Some rights, like the   ususfructus , can only be transferred by in iure cessio (Gai. Inst. 2,30). The buyer takes up the…
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