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Intestabilis

(124 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law, legally incapable of being a witness ( testis). The Inst. Iust. (2,10,6) lists as intestabiles: women, minors, slaves, the dumb, the deaf, the mentally ill, legally incapacitated wastrels and those who had been declared improbus (dishonourable) and intestabilis by a special law. Legal arrangements of this kind result, for example, (according to Ulp. Dig. 47,10,5,9) from the lex Cornelia de iniuriis against authors or distributors of articles with offensive content or (according to Cassius Dig. 1,9,2) from the lex Iulia de repetundis against those re…

Confusio

(232 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In the confusio (the ‘merging’) the same person is both debtor and creditor or owner and holder of a limited material right, e.g. a usufruct. In Roman law confusio led to the extinction of the claim or the right. The late classic jurists (3rd cent. AD) occasionally use the term consolidatio for confusio without creating material distinctions. The effect of the confusio could not be prevented by the will of the parties. However, the Roman jurists occasionally assume a duty to refound the claim or right. The opinion of the Proculians ( Law schools) that the   noxalis actio

Mater familias

(157 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] While the word pater familias indicates a clearly defined legal status, the designation of the Roman mother of a family is a social rather than a legal one. Originally, MF was the honorary title for a married woman living in the → manus (marital control) of her husband, with whom she had children. Her social position was, in contrast with (and in compensation for) her legal status ( Manus), a high one. She had precedence over all other members of the household apart from her husband. By the time the manus marriage had fallen into disuse, the term MF - literally the mot…

Punishment, Criminal law

(1,758 words)

Author(s): Neumann, Hans (Berlin) | Römer, Malte (Berlin) | Schiemann, Gottfried (Tübingen)
[German version] I. Ancient Near East The Sumerian-Akkadian terminology regarding punishment and criminal law implies that in Mesopotamia, this was already understood to be a consequence of mischief [1. 77 with note 35], directed either against the divine order [2] or the (state-sanctioned) political and social structures [3]. The same is true of Egypt [4. 68]. There was no distinction between civil and criminal law in the modern sense. The relationship between private law and so-called public law (an…

Minores

(735 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (more complete: minores viginti quinque annis; singular: minor) in Roman law those under the age of 25. In a narrower (and originally technical) meaning, persons aged 15 to 24 were called minores, in a broader sense anyone who had not reached the age of majority (at least 25 in Roman law). The legal regulations for minores in the narrow sense concerned their ability to enter into contracts and other legal transactions (contractual capacity). This must be distinguished from legal capacity, that is the ability to establish and acquire r…

Classicism

(1,558 words)

Author(s): Riemer, Peter (Potsdam) | Schiemann, Gottfried (Tübingen)
I. Literary history [German version] A. General Classicism, a term formed early in the 19th cent. analogous and antithetically to ‘Romanticism’, initially means the same as the later neologism ‘classical period’: ‘highest perfection’, which was first attested in 1887 [1. 154] and in both English and French is still recognizable in the remaining ambivalence of the term classicism, especially in the contrast of ‘classicism/neo-classicism’ or ‘classicisme/néoclassicisme’ [2. 3, 5f.]. However, in the typol…

Translatio

(166 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] [1] see Status [1] A. see Status [1] A. Schiemann, Gottfried (Tübingen) [German version] [2] Legal expression Translatio iuris ('transfer of rights') finds expression in the famous phrase: "A person cannot transfer to another person rights greater than those he has himself" (' nemo plus iuris transferre potest quam ipse habet', Ulp. Dig. 50,17,54). This formula from the early 3rd cent. AD reflects the concept in classical Roman law that subjective rights do not emerge anew in the person receiving them -- as was assumed in the ear…

Novellae

(881 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Overview Novellae is the abbreviation for the Latin novellae leges (‘new laws’, also Greek nearaí diatáxeis). In general, it refers to the legislation of the emperors in Late Antiquity, enacted chronologically after the official collections of the Codices Theodosianus and Iustinianus ( codex II.C.). In a narrower sense, it refers to the novellae of Iustinianus [1], which in modern editions of the Corpus iuris constitute the fourth and last part of this 6th-cent. collection. In contrast to the other parts ( Institutiones Iustiniani, Digesta, Codex Iustinianus), h…

Consensus

(331 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] is the unanimous will of the parties of a contract (  contractus ). In Roman law it was the basis of the binding character of buying (  emptio venditio ), contracts of lease, work and employment (  locatio conductio ), of commission (  mandatum ) and association (  societas ). The ‘invention of’ consensus as the central element of a system of civil law is one of the ‘grandest juridical achievements, and one of the most influential for further development’ [1. 180]. The liability resulting from consensus necessitates neither a specific form nor an advance nor perfo…

Confarreatio

(182 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] According to Gai. Inst. 1,112, the term confarreatio is based on the fact that during this religious act a farreus panis (a bread made of emmer but not spelt) was sacrificed by the bridal couple to Iuppiter farreusfar ). Apart from the   coemptio and a one-year valid duration of the marriage ( usus), the confarreatio was the third option of establishing the   manus (male power) over the wife. This effect was probably an ancillary result of the confarreatio while the highly festive conclusion of the marriage probably took centre stage in the ceremony. It to…

Contractus

(352 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Gai. Inst. 3,88 contractus constitutes, with delicts, one of the two higher branches of the whole Roman law of obligations. This has led many analysts to translate contractus simply as ‘contracts’. Originally, however, contractus was really not limited to a commitment as a contract but actually meant literally only ‘to incur (an obligation)’. In the period of the principate contractus was indeed understood to be linked to an agreement ( consensus, conventio) (Dig. 2,14,1,3). Even then, however, not every agreement would necessarily lead to a contractus. As no co…

Signum

(297 words)

Author(s): Schiemann, Gottfried (Tübingen)
(Literally 'sign', pl. signa). [German version] [1] (Name) see Supernomen (Name) see Supernomen Schiemann, Gottfried (Tübingen) [German version] [2] (Military matters) see Ensigns; Signals (Military matters) see Ensigns; Signals Schiemann, Gottfried (Tübingen) [German version] [3] Brand mark for slaves The brand mark by which the Romans identified slaves (Slavery). It was used to prevent escape and deter theft, and for criminals in general if they were condemned to work in the mines ( in metallum), thus becoming slaves. Those who had been branded in this manner could …

Aliens, the position of

(1,324 words)

Author(s): Schiemann, Gottfried (Tübingen) | Domhardt, Yvonne (Zürich)
[German version] I. General In the states of the Near East, in Egypt and the ancient urban societies of the Mediterranean the alien, temporarily or permanently entering these societies, was in principle outside the protection of the law, in which only fully-qualified citizens of the respective state and indirectly also their slaves and dependants were included. In general aliens were not, however, left without rights, but were subject to a special law for aliens that protected them in differentiated…

Status

(1,436 words)

Author(s): Walde, Christine (Basle) | Schiemann, Gottfried (Tübingen) | Eder, Walter (Berlin)
(lit. 'standing', 'condition', 'position'). [German version] [1] In rhetoric (Rhetoric). The Latin rhetorical term status (Quint. Inst. 3,6,1; Cic. Top. 25,93) or constitutio (Quint. Inst. 3,6,2: 'ascertainment' i.e. of the point in dispute) equates to the Greek στάσις/ stásis (Quint. Inst. 3,6,3; Cic. Top. 25,93; Isid. Orig. 2,5,1). Walde, Christine (Basle) [German version] A. Definition In the rhetorical system (Rhetoric), status ('standing of the matter of dispute') was the determination, arrived at by a series of questions ( summa quaestio, 'crucial question': Quint. I…

Iurgium

(94 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A term in the Law of the Twelve Tables ( c. 450 BC,   Tabulae duodecim ). Its significance in legal history is still very disputed. Iurgium is a milder form of dispute than the litigation before court (  lis ); otherwise a general term for a dispute. It is conceivable that iurgium meant an out-of-court settlement, perhaps with the support of the pontifices. In the classical period (1st cent. BC - 3rd cent. AD) this form of resolution had long fallen out of use. Schiemann, Gottfried (Tübingen) Bibliography M. Kaser, K. Hackl, Das röm. Zivilprozeßrecht, 21997, 58).

Ius iurandum

(569 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The oath to be sworn to Roman law (  ius ) or before the court (at the praetor or iudex). The older type of oath is probably the   sacramentum , which however, from the late Republic onwards with the dying out of the legis actio sacramento, essentially described the soldier's oath. The ius iurandum was sworn by  Jupiter, all the gods or by the  genius of the emperor. The magistrates swore the existing laws with a ius iurandum in leges within five days of taking up office, and magistrates stepping down usually also swore the legitimacy of their administration …

Pledge, law of

(1,278 words)

Author(s): Renger, Johannes (Berlin) | Schiemann, Gottfried (Tübingen)
[German version] I. Ancient Orient The requesting of a surety to secure a contract is documented in the laws of the Ancient Orient to varying degrees. Requiring a pledge plays a large role in debt trials in agrarian societies. For example, if tenants were in arrears with their obligations, the forfeiting of a personal surety often led to debt-bondage [1; 2; 15. 179f.] with the resultant negative consequences for the social balance of a society ( Leasehold I.). The requesting of a pledge has been documented in cuneiform legal texts by documents of varying complexity from t…

Divisor

(157 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (‘One who apportions endowments’). From the 2nd cent. BC or earlier war spoils of the Roman state were occasionally distributed among the people of Rome. In the absence of an official ‘Body of Apportionment’ it fell to private citizens, divisores, to assume that function. By the end of the Republic this had led to a system of canvassing that has been described in detail in Cicero Planc. 48ff. Divisores promised in single   tribus a ‘reward’ to a sufficient number of tribus members in the event of a particular candidate being elected. If the tribus was won over and the cand…

Purchase

(1,351 words)

Author(s): Schiemann, Gottfried (Tübingen) | Neumann, Hans (Berlin)
[German version] I. Introduction After the supersession of the concept that the ideal economic form was an autarkic entity of production and consumption not depending upon trade (e.g. the Homeric oîkos), and after the invention of means of payment - whether in the form of unstamped precious metals or coins - purchase, i.e. the exchange of goods for money, was a self-evident element of ancient societies. In spite of its presumably general distribution, however, purchase was underdeveloped in terms of legal provision. Laws and…

Tabulae duodecim

(1,105 words)

Author(s): Schiemann, Gottfried (Tübingen)
('Twelve Tables', or, more completely, lex duodecim tabularum, 'Law of the Twelve Tables'), the most important legislation of the Roman Republic. The name originates in the tradition that they were written on twelve oak ( roboreas, as it ought to read, rather than eboreas, 'ivory', in Pompon. Dig. 1,2,2,4) tablets. However, they have not survived in epigraphic form. Text and content must be reconstructed from ancient literature. It may be assumed, in the light of accounts of the legislative process in ancient authors (esp. Liv. 3,32 ff.), that they were written around 450 BC. …
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