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Orbi

(138 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The childless who, according to Roman law dating from the time of Augustus, suffered certain legal penalties: to promote a higher birthrate, women who had many children benefited through the lex Iulia de maritandis ordinibus and the lex Papia ( ius liberorum ), while on the flip-side childless people (men and women) were restricted in their capacity ( capacitas) to accept inheritances and legacies: what was left to orbi under a will, was halved (in the case of a surviving spouse reduced to a tenth). The remainder, known as the caducum (a lapsed inher…

Iustitium

(117 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Rome the suspension of judicial activity generally ordered by a magistrate (the highest present in Rome) with an edict and associated with further restrictions of transactions, e.g. the closure of the state treasury (  aerarium , Cic. Har. resp. 55) or the stores in the Forum (Liv. 9,7,8). By the late Republic this order had to be preceded by a resolution of the Senate (Liv. 3,3,6). The iustitium was not solely an emergency measure but already in the Republican period could be caused by public mourning over a military defeat (Liv. 9,7,8) or the…

Modus

(303 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] has two meanings in Roman law: one describing a ‘measure’ primarily of land, the other - according to the matter in hand - the same as the modern concept of an instruction (on a gift or testamentary benefit). M. agri (the land measure) was the subject of a well-known action from Paul. sent. 2,17,4  ( actio de modo agri): if the price of a piece of land was calculated according to its area, the purchaser could demand from the seller double the proportional price as a private penalty, if it transpired that the area was smaller than stated.…

Lex commissoria

(213 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A Roman forfeiture or cancellation agreement, it was usually a unilateral (hence: lex ) clause inserted in conditions of sale (see emptio venditio D), or a pledge ( fiducia , pignus ). Upon purchase the clause granted the vendor a right of rescission if the purchaser did not pay the purchase price - for instance, in the event of an agreement for payment in instalments or a date of payment. If the vendor exercised the right of rescission, he could request the return of the sold property by means of the actio venditi (according to the Sabinians) or by means of an actio in factum (acco…

Leasehold

(919 words)

Author(s): Neumann, Hans (Berlin) | Schiemann, Gottfried (Tübingen)
[German version] I. Mesopotamia, Egypt Leasehold in the sense of the limited taking over of the use of land used for agricultural or gardening purposes against payment of a rent, was attested in Mesopotamia from the middle of the 3rd millennium BC. Both institutional households ( Palace; Temple) as well as private individuals could function as lessors. The rent was set either at an absolute value in kind or silver, or as a part of the harvest. The one third leasehold, which meant that the lessor received 1/3 of the harvest and the leaseholder received 2/3, was typical above all for the ea…

Denuntiator

(89 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Someone who has something to announce or proclaim. In a narrower sense the term is applied to those who, whether as a private individual or on behalf of an office, report a criminal offence. Denuntiator is then very often synonymous with   delator . The excesses of the latter had a lasting effect on the public opinion on denunciation. Denuntiatores crop up in Rome even as junior officials in the role of heralds. For similar functions in Greek law   menysis ,   sykophantes . Schiemann, Gottfried (Tübingen)

Conubium

(399 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Rome being eligible to marry ( conubium) was a prerequisite for a legally valid marriage. Both partners had to have the conubium: Conubium est uxoris iure ducendae facultas. Conubium habent cives Romani cum civibus Romanis: cum Latinis autem et peregrinis ita, si concessum sit. Cum servis nullum est conubium (‘ Conubium is the legal ability to marry a woman. Roman citizens have the conubium to marry each other but, only by special dispensation, to marry Latins and other foreigners . There is no conubium with slaves’; Ulp. 5,3-5). That description omits to mentio…

Suicide

(502 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Suicide, from neo-Latin suicidium ('self-killing'), a parallel formation on homicidium , was a subject of lively intellectual debate in Greek and Roman Antiquity: in schematic comparison it can be said that the followers of and successors to Plato, as well as Aristotle [6] and Neo-Platonism, condemned suicide, whereas some Sophists, and the Cynics (Cynicism) even more, acknowledged suicide as an expression of individual freedom, even expressly endorsing it. This point of …

Lawcourt

(459 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The institution of the law court (LC) has existed from the beginning of state control in antiquity. It is no longer possible to deduce whether and where a phase of arbitration preceded it. In the documents of the Ancient Orient LCs are attested on many occasions [1; 2; 3]. The respective city prince or king was probably also the master of the court although in Mesopotamia there was also local jurisdiction (i.e. within certain groups) [2]. The scribes were suited for work as judg…

Basilics

(144 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The ‘Basilics’, after the Greek term basiliká (n.pl.: ‘imperial’; sc. law books), are a compilation in Greek of the most important parts of the   Corpus iurisDigesta and   Codex (II)Iustinianus, as well as extracts from   Institutiones and   Novellae C.) from the time of the Byzantine emperor Leo(n) [9] VI (886-912). For five-and-a-half centuries the Basilics secured the continuance of Roman law in Byzantium (I. B.3). At the same time, they are an invaluable secondary source for the survival of the Corpus iuris, above all the Digesta (A.3). The Basilics also f…

Absolutio

(227 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] in Roman court proceedings is the opposite of ‘condemnation’ (  condemnatio ). In civil proceedings the formula in which the praetors set down the programme for the iudex ends stereotypically with the judicial command ... condemnato. Si non paret, absolvito. Both absolutio and condemnatio were final and absolute, in other words the decision -- apart from the special case of   appellatio -- was irrevocable, the dispute was definitively concluded and the exceptio rei iudicatae (demurrer of legal force) stood in the way of a new action. The saying omnia iudicia absolutor…

Adfinitas

(91 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (relations by marriage). Gai. Inst. 1,63 speaks of adfinitas in connection with the statement: Item (scil. uxorem ducere non licet) eam, quae nobis quondam socrus, aut nurus, aut priuigna, aut nouerca fuit. According to this in classical Roman law (possibly since Augustus' marriage legislation) marriage to mother-in-law, daughter-in-law, stepdaughter and stepmother is forbidden. This impediment to marriage was extended in late antiquity to relations by marriage of the first degree in the collateral line (brother's wife, wife's sister) (Cod. Theod. 3,12,2). Sch…

Concussio

(159 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The Digests (Title 47,13) label cases of a forced granting of benefits to an officeholder as concussio (blackmail). Possibly, this is a further development of the reclamation procedure (  repetundarum crimen ). Punishable behaviour in office due to concussio was not prosecuted by a iudicium publicum but by extraordinaria   cognitio . Therefore, it was probably only considered an independent offence in the Imperial period (2nd cent. AD). The sources present pretending a (higher) official authority, orders of a superior and threats of an unfounded suit as means of concu…

Law [2]

(4,230 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] I. General The most important foundations of later European conceptions of law were laid in OT Judaic law, in Greek law as practical counterpart to the beginnings of philosophical reflection on justice ( Pre-Socratics; Justice), and above all in Roman law as the defining authority for the development of secular European jurisprudence since the late Middle Ages ( Reception). Law always comprises regulation on the part of a sizeable community for the settlement of conflicts between…

Surety

(967 words)

Author(s): Neumann, Hans (Berlin) | Schiemann, Gottfried (Tübingen) | Meissel, Franz-Stefan (Vienna)
[German version] A. Ancient Near East There is evidence of personal (corporal) liability through surety (especially standing surety for another, rarely for oneself) as a means of guaranteeing a contract in Mesopotamian cuneiform texts from the mid-3rd millennium BC [2. 253] into the Hellenistic period [3. 64-69], using different terminologies and in different forms. The Gestellungsbürgschaft ('surety of appearance') was common (promise of the guarantor to deliver the debtor to the creditor for enforcement). In the late Babylonian (6th-4th cents. BC) Stillesitzbürgschaft ('s…

Paelex

(65 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] From a statement by the Roman jurist, Paul (Dig. 50,16,144) the meaning of paelex (also pelex, pellex, different in Greek pallakḗ ) is that of a female partner to whom one is not married (i.e not uxor, Marriage III.C.). The legal status of paelex was treated in Roman law mainly in the context of concubinage ( concubinatus ). Schiemann, Gottfried (Tübingen)

Scriptura

(124 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (literally 'that which is written down'), in the field of law, denoted all Roman documents, and (as literacy increased) from the Principate, but esp. in late antiquity, e.g. the testament, the note of hand ( cheirógraphon ), generally the contract, but also a legal opinion or a legal ruling, provided that these were given in writing. In a narrower sense, probably arising from the fact that the Roman tax farmers ( publicani ) 'marked down' transactions of relinquishment of public pasture to private (sub-)lessees, scriptura was the payment the lessee had to make for…

Diffarreatio

(51 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The actus contrarius of a   confarreatio , which dissolved a marriage joined in this form and followed the same ceremony. At the same time it effected the termination of the (former) husband's spousal powers (  manus ). Schiemann, Gottfried (Tübingen) Bibliography 1 W. Kunkel, s.v. matrimonium, RE 14, 2277 2 Treggiari, 24.

Auctoratus, Auctoramentum

(202 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] An auctoratus is, according to Gai. Inst. 3,199, a dependent person, who is named together with the minor children and wives as well as the indentured servants ( iudicati). The position of the auctoratus probably rested on a willing subjection by oath ( auctoramentum), perhaps also on a duty of service on behalf of the   pater familias of the auctoratus to the employer. Since the end of the Republic, a free man could commit himself as auctoratus as a  gladiator, which did not protect him from the   infamia which was otherwise associated with the pos…

Concubinatus

(520 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law a permanent union between man and woman without affectio maritalis, i.e. without the intention of both parties of permanently entering a legal bond for forming a household, procreating and raising children. Since the marital laws of Augustus, the concubinatus increasingly became a form of living together if marriage was prohibited. Thus, senators and their descendants were prohibited under the l. Iulia de maritandis ordinibus from marrying a freedwoman, actress or daughter of an actor. Freeborn Romans could not enter into a marriage…
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