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[German version] An ampliatio (continuation of the case at another date) happened in Roman criminal proceedings if part of the jury (e.g. according to the l. Acilia it had to be a third) by special declaration or withdrawing of vote in the question of guilt made it clear that they did not yet regard the case as ripe for judgement ( non liquet). Ampliatio should be distinguished from   comperendinatio , legally prescribed in certain cases. Republican legislation had, it seemed, already tried to oppose the proliferating use of ampliatio by threatening fines against the judges in the c…

[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…

[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…

[German version] The law known in modern literature as the law governing citations is an order by the Roman emperor declaring which jurists from earlier centuries should be drawn on and cited in legal decisions. With the crisis of the Roman empire in the mid 3rd cent. AD even Roman jurisprudence (  iuris prudentia ) lost the political, social and economical conditions for productive continuation. Legal literature from the 1st cent. BC, the beginning of its ‘classical’ period, therefore changed from being a fund for a discourse o…

[German version] (pl. nomina). In Roman law, the term for debts. Gai. Inst. 128-133 distinguishes between ‘cash debts’ ( nomina arcaria), which arose e.g. from loans ( mutuum , see also condictio ), and ‘ledger debts’ ( nomina transscripticia), which arose by an entry in the ‘ledger’ of the creditor as an obligation from a litterarum obligatio . Schiemann, Gottfried (Tübingen)

('subscription, signature'). [German version] I. Ancient legal documents The 'subscription/signature' (Gk. ὑπογραφή/ hypographḗ, Lat. subscriptio.) is an element of ancient documents. From the 2nd cent. BC onwards, private documents on papyrus in Egypt were given a signature ( hypographḗ). This probably not only consisted of the mark or full written name, but also contained a brief recapitulation of the most important content of the document, e.g. the admission of owing a certain amount of money. Thus the debtor indicated his awareness of the obligation assumed. However, the subsc…

[German version] [1] Guardianship (Latin 'guardianship', from tueri, 'to protect'). Schiemann, Gottfried (Tübingen) [German version] I. Basis and typology of guardianship Tutela occurred in Roman law as tutela over those not yet of age ( impuberes) and women ( tutela mulierum), and concerned those who were not subject to the personal power of the 'father of the family' ( pater familias ) or the husband ( manus ), and were thus persons 'in their own right' ( sui iuris). The Twelve Tables ( tabulae duodecim ; tab. 5,6, c. 450 BC) prescribed the nearest mal…

[German version] (perhaps from peregre, 'outside the fields', namely the territory of Rome) was the most important technical term of Roman law referring to foreigners (Aliens, the position of), who did not belong to the community of rights of the Roman citizens ( civitas ) but who was nevertheless an enemy or completely without rights. The dediticii , who as members of communities subjected by Rome had been given neither Roman nor Latin citizen law (Latin law), were sometimes partially distinguished from peregrini, and sometimes treated as a special group of peregrini In the time of t…

[German version] I. General points A contract is an agreement between two or more persons (possibly implicit) for the purpose of a legal result (e.g., a purchase as exchange of goods against money). Relative to the purpose of the transaction, contracts that in legal terms directly refer to the purpose, the ‘abstract’ legal transaction, which is independent of it, and the ‘ ad hoc legal transaction’ must be differentiated. A legal procedure is abstract if the legal effect is legally not linked to the result that the parties are attempting to achieve (e.g., r…

[German version] is the ownership of land - perhaps better described as ‘soldiers' tenure’ - to which military obligations were attached: whether armed service by the owner or the recruiting and equipping of soldiers (as representatives of the owner, so to speak). Military tenure (MT) in this sense occurred particularly in the Ancient Orient. It is relatively well recorded for the Persian empire of the Achaemenidae [2] (6th-4th cents. BC) and the Hittite empire ( Ḫattusa II.); Egyptian military co…

[German version] In Roman criminal law, a type of criminal association, e.g. between thieves and publicans, as mentioned by Ulpia (Dig. 4,9,1,1), but in particular, the punishable election alliance (a defined case of election fraud,   ambitus ). Election alliances between candidates were probably regarded as harmless as long as only personal relationships, friendships and clientele connections were combined for common success in an election. Distinctly different was the joint bribing of electors on a large scale, against which the lex Licinia by Crassus (55 BC) was directed,…

[German version] Probably the usual type of arrangement for setting up a marriage in which the   manus power relationship applied to the woman. Coemptio cannot simply be interpreted as the purchase of a bride (even as a practice in a very early phase of development) because it is connected to the formal transaction of the   mancipatio , which, at a very early stage separated the actual procedure from that of the conceptual image the term evokes. One can assume that originally, the bride's father ‘transferred’ the power over his daugh…

[German version] According to Varro, Ling. 5,151, the term carcer, i.e. a place for individual detention, is derived from coercere; it is thus linked to the magistracy's powers of   coercitio for the direct enforcement of its authority, and not the punishment of criminal misconduct. ‘The carcer has to be maintained for the detention, not the punishment of people’: carcer enim ad continendos homines, non ad puniendos haberi debet (Ulp. Dig. 48,19,8,7). Civil law offences and other obligations, for which the obligator was liable in person, were regulated by the XI…

[German version] In contrast to the  land register that existed ─ probably based on an Old Egyptian model [1] ─ in Ptolemaic and Roman Egypt (and, in antiquity, possibly only there) as a safeguard for private property transactions, the primary purpose of estate registers (ER) and similar registers was the levy of land taxes as well as the administration of state leases. Thus, almost inevitably, they were just as widespread as those very forms of state income. A prerequisite for starting up archive…

[German version] (literally 'chains'). In legal provisions as early as the Twelve Tablets (Tab. 3,3; Tabulae Duodecim ) a creditor could place a debtor in vincula for the purpose of legal enforcement. In this way a culpability was established. Initially its goal was to force the payment of a debt by the debtor himself or a third party, but was also a transitional stage in taking control, after the expiry of a deadline, of the person of the debtor in order to sell him e.g into slavery or to have him work off the amount he was convicted of in bonded labour. This former function of vincula is alluded t…

[German version] Manus is used in Roman law in the sense of the ‘controlling and protecting hand’, expressing the family law concept of a relationship based on domination. Originally, manus may have described the hegemony of the head of the family ( pater familias ) not merely over his children ( patria potestas ) but also over his wife. Already in the Law of the Twelve Tables (5th cent. BC), however, paternal power is treated separately. The meaning of manus is accordingly restricted to the husband's relationship of power over his wife. Our best source for manus are the ‘Institutions’ of …

[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 farreus (  far ). 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…

[German version] The services (more precisely: the daily duties) Roman ex-slaves were obliged to perform for their patron ( p atronus ) after their manumission. The phenomenon of servitude for freed people is also known from other ancient slave-holder societies ( paramonḗ ). OL did not result from the slave-patron relationship itself. Rather, freed men and -women were obliged by oath to their manumitters and repeated the obligation after being set free either in the same form or by  stipulatio . Only by means of this repetition could undertaking of OL bec…

[German version] A. Concept Lex (‘law’, pl. leges) in Roman law denotes stipulation by a private individual, an office-bearer or a legislative body. The etymology is obscure. A derivation from legere (‘to read out’), referring to the method of stipulation by way of a ceremonial formula (cf. B. below on nuncupatio) remains speculative. Crucial to the lex is its mandatory character. On the other hand, in the original use of the term it lacks the ‘abstract’ (claiming general validity) and ‘general’ (directed at a large number of people) character of mod…

[German version] The term instrumentum (an object that has been ‘erected’ or ‘set up’) has widely differing meanings in Roman legal terminology: 1. in the Imperial period, especially in late antiquity, instrumentum was the document recorded by a document writer (  Tabellio ) concerning a civil legal transaction or (as instrumentum publicum) by an authority regarding a private or public matter. The instrumentum publicum and the instrumentum of the document writer, which was attested as authentic by three witnesses and also by the tabellio in writing, had full status as proof in…

[German version] Libel was prosecuted as serious injury to the character in both Greek (Attic) and Roman law. In Athens, libel may have come under kakēgoría (cf. also loidoría ) and have led to a fine in a private suit. In Roman law, libel was likewise a civil offence as a form of iniuria (a wrongful act). Possibly related to libel was the carmen famosum (‘defamatory poem’) of the Twelve Tables ( tabulae duodecim ). An aggravated form of libel was the Roman calumnia (false accusation), which could lead to harsh punishments. 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…

[German version] (also gesta). Generally an expression for transactions relevant to business (not necessarily legal transactions). In Roman civil law the following are significant: (1) the pro herede gestio (behaviour as an heir), informal behaviour (e.g. taking possession) as an expression of the desire to come into an inheritance ( Succession, law of). (2) the negotiorum gestio (modern law: conducting business without a commission). In Roman law it concerns all affairs in the conduct of someone else's transactions that are not commissioned (  mandatum ) or…

[German version] (the 'appraisal') in the Roman formula process was the upper limit to which the iudex ('judge') could set the sentence sum on conviction ( condemnatio ), by instruction of the praetor. The taxatio typically occurred in cases of (1) liability of the master for the property ( peculium ) of the slave or filiusfamilias from the actio de peculio or the actio de in rem verso, in respect of asset gains made by the action of such individuals under his power ( patria potestas ), (2) an exception sought by the debtor because of distress ( beneficium competentiae) and (3) an appeal for iniur…

[German version] (the 'reply letter') is one of the most important sources for Roman imperial law. In Gai. Inst. 1,5, the rescriptum is simply called epistula ('letter'), but classed as belonging to the constitutiones ('imperial laws'). Already in the Principate, the emperor received queries and proposals from officials and private persons on every matter imaginable. The emperor replied commensurate with the preparation in the chancellery ab epistulis with a rescriptum, a draft of which was archived. Starting with Hadrian (beginning of the 2nd cent. AD), the rescripta more and mo…

[German version] The expression for  mental illness in Roman law. The person affected by this, the furiosus, according to the Twelve Tables ( c. 450 BC), found himself in a special relationship of authority and dependence (foster-care, cura furiosi). The agnate (  agnatio ) and, when needed, in early times the gentile (  gens ) were entitled to the office of the curator (Cic. Inv. 2,148; Rhet. Her. 1,23). The position of the curator, similar to that of a trustee, corresponded to a great extent to that of a guardian (  tutela ) and was valid not only for the person but also for the property of the furi…

[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…

[German version] In Roman legal history critique of interpolation specifically refers to the examination of the transmitted version of the texts of the Corpus Iuris for falsifications compared with the original. This is of particular relevance to the fragments from the writings of the classical jurists (1st cent. BC - 3rd cent. AD) in the  Digesta , but also to the  Institutiones in comparison to their models and even to the older imperial pronouncements collected in the  Codex Iustinianus . With regard to the Digesta, emperor Justinian himself had already given an express…

[German version] (literally: ‘imaginary’) in Roman law the term for a legal transaction which expressed something other than what the parties actually intended. The most graphic example is the  mancipatio nummo uno, a transfer against, and by payment of, a merely symbolic copper coin ( aes). Its outward appearance was that of a cash purchase; its actual effect, however, was to enable transfer for any purpose, it could thus be ‘abstract’ - an imaginaria venditio (Gai. Inst. 1,113). In early Roman law, surety meant subjugation to the power of seizure vested in the creditor. Release ( solutio…

[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…

[German version] ('right to return home', more common in the combination ius postliminii) is explained in Just. Epit. 1,12,5 as deriving from limen (threshold), and this was supposed to have been metaphorically transferred to the boundary of Roman state territory, so that a prisoner of war, who on his return would be crossing back from beyond ( post) the 'threshold' into the Roman state, would have the right to return to his earlier position before being taken prisoner. On being taken captive by enemies (Prisoners of war), a Roman citizen would become…

[German version] A. Overview Furtum is the offence against property in Roman law. At least in the classical period (1st-3rd cents. AD) the term furtum includes not only theft and embezzlement, but also the mere use of items that are not one's own ( furti usus), the removal of one's own property, e.g. from a collateral creditor ( furtum possessionis, possession theft), fraud, receiving stolen goods and aiding and abetting the perpetrator of a furtum. The object of furtum could in addition to res corporales be slaves and persons under paternal authority. In the classical period, …

[German version] The Romans used the word capitale whenever the  death penalty (also poena capitis) was concerned: for the crime itself, the legal process, as well as in passing and executing a sentence, but also for the loss of personal freedom or citizenship (  deminutio capitis ) and particularly with reference to exile (  exilium ), when -- from the late Republican period -- this indeed replaced the death penalty for Roman citizens. Schiemann, Gottfried (Tübingen) Bibliography E. Cantarella, I supplizi capitali in Grecia e a Roma, 1991.

[German version] The Latin term for Manumission (C.), the freeing of slaves. Schiemann, Gottfried (Tübingen)

(μόρα; mόra). [German version] [1] Division of the Spartan army In the Spartan army no later than from 403 to 371 BC mora was the usual term for the six largest divisions of the infantry and cavalry assigned to it (Xen. Lac. pol. 11,4; Xen. Hell. 2,4,31; 4,5,3-19; Diod. 15,32,1). Each mora was commanded by a polémarchos   (Xen. hell. 4,4,7; 5,4,51), had a required strength of more than 1,000 men and was organised into lochoi ( lóchos). Burckhardt, Leonhard (Basle) Bibliography 1 J.F. Lazenby, The Spartan Army, 1985, 5ff. [German version] [2] Default in Roman law Default in Roman law. Schiemann…

[German version] The technical term in Roman law for ‘jettison’, the unloading of goods at sea from a ship in distress. The so-called lex Rhodia de iactu held that in these cases a community of endangerment of all involved existed: between the damaged party, the mariner ( nauta) and the owners of the salvaged load. In fact, this lex was a customary law throughout the Hellenistic world. Specifically, the damaged party could demand his share of compensation from the mariner in a service contract suit ( actio locati), while the mariner could in turn demand a compensation from the oth…

[German version] [1] Masks see Masks Schiemann, Gottfried (Tübingen) [German version] [2] Legal In modern parlance, persona is indeed a loan word received from Latin; however, persona in Latin certainly did not have the central meaning that it now conveys in modern legal culture based on rational law (cf. Person). In Ulp. Dig. 50,17,22 pr., Ulpian does indeed mention a persona servilis, that is, the personality (even) of a slave. However, this is in connection with the conclusion that slaves are not entitled to any legal claims. Rather, the slave was -- a…

[German version] The Roman jurists were probably the first who derived institutiones as a title for elementary textbooks from the term institutio (teaching course) in the 2nd cent. The significance of this Roman genre for European legal history extends far beyond what one might expect of ancient introductory didactic works: when the work of codifying Roman juristic law in the form of the  Digesta had advanced to a point that their success seemed certain, in AD 533 emperor Justinian commissioned his minister of justice  Tribonianus as well as the Byzantine l…

[German version] ( ab aere pendendo, Varro, Ling. 5,183). In earlier times the dispensator would presumably weigh unminted precious metals for his master or the state. The post developed into that of bookkeeper, cashier and steward, much like the Greek oikonómos. It is frequently encountered in Roman inscriptions. Many dispensatores were slaves or freedmen. In Gaius Inst. 1,122 they are distinguished as a special type of slaves: servi, quibus permittitur administratio pecuniae, dispensatores appellati sunt (‘slaves entrusted with the management of money are called dispensatores…

[German version]  Adultery ( a.) in Roman law according to the l. Iulia de adulteriis coercendis was a matter for public criminal proceedings ( iudicium publicum). The factual proximity of this ruling to Augustus' other marriage legislation suggests that the law on adultery originates from the same year as the l. de maritandis ordinibus (18 BC). According to a report by Paulus (Coll. 4,2,2), from the late classical period, several earlier laws were rescinded by the l. Iulia. So adulterium must already have been prosecuted at the time of the Republic, probably by the holder of authority ( pat…

[German version] In Roman law, initially the unilateral repudiation of a wife by her husband. From the literal sense (from pudor, 'shame', 'chastity'), repudium would have had serious misconduct (especially adultery, adulterium ) by the wife as a prerequisite. According to the Twelve Tables, as reported by Gai. Dig. 24,2,2,1, for repudium, the man had to call upon the woman to leave ( baete foras) and to take her things with her ( tuas res tibi habeto). As early as the 3rd cent. BC, repudium was possible without any fault committed by the woman (cf. Gell. NA 4,3,1 f.); no late…

[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…

[German version] The hangman, who in Roman society as in virtually every place and time fulfilled a despised function, to be performed beyond the pale of civic life. Execution of  capital punishment by the carnifices was supervised under the Roman Republic by the   tresviri capitales . Whether they were state slaves, as was generally supposed in the past, is entirely uncertain. In Cumae and Puteoli it was the independent undertakers, during the imperial age soldiers too, who fulfilled the duties of the carnifex. Schiemann, Gottfried (Tübingen) Bibliography W. Kunkel, Staatsordnung …

[German version] The technical term legacy in modern law is a literal translation of the Roman legatum . In the testamentary settlement of the succession of property rights after death, Roman law differentiated between the appointment of the fully valid legal successor as heir ( heres, for this see Succession, law of III.) - or several heirs - and the allocation of individual objects as legacies. Other ancient laws contain no comparable construction. Fideicommissum; Testament [2] IV. Schiemann, Gottfried (Tübingen)

[German version] The poll-tax of the late Roman Imperial Age from Diocletian (AD 297). As capitatio plebeia, it was probably levied on the urban population. With regard to the taxation of the rural population, it is disputed whether the capitatio was raised independently or was -- as an indicator of income -- only an important unit in the calculation of the land-tax ( iugatio). Widows and orphans, soldiers and veterans were entirely or partly exempted from the capitatio.  Annona;  Iugum Schiemann, Gottfried (Tübingen) Bibliography W. Goffart, Caput and Colonate: Towards a Histo…

[German version] was probably not a technical term at first (therefore also c. venalitium, c. specierum). It referred to the public purchases of provisions for the Roman State, primarily concerning military equipment and public grain supplies ( Logistics,   cura annonae ). Comparatio publica (CP) did not become a legal category until the Cod. Theod. (under headings 11,15). There, it is designated as a highly regulated type of business including sales obligations (in modern law: contract obligations) and exact price …

[German version] A. Type of suit in the ius civile Sentencing to a particular payment could be achieved with the   legis actio per condictionem after the 3rd cent. BC: certa pecunia based on a lex Silia, other certae res based on a lex Calpurnia (cf. Gai. Inst. 4,17 b-19). The condictio (‘announcement’) is merely a procedural designation: the court date was not granted immediately but only after the expiry of an ‘announced’ term of 30 days to allow the debtor the option of compliance without court procedure. The certum in this suit is, in the first place, a payback guarantee for an …

[German version] I. General Robbery is the appropriation of a moveable object belonging to another with violence against that person or by the use of threats with present danger to life and limb and with intent to appropriate the object in contravention of the law (§ 249 German Criminal Code). In law, robbery is a combination of theft and duress. In the popular mind of today, robbery is regarded as a more serious offence than simple theft. However, in ancient legal systems and until the Middle Ages, theft (by stealth) was seen as worse than (public and violent) dispossession. Hengstl, Joachi…

[German version] Technical term for the listing of sources at the beginning of the fragments of the digests (  Digesta ) and of the constitutions in the Codex Iustinianus ( Codex II C). The Digesta list the author from the Classical period (e.g. Ulpian), his work (e.g. ad edictum = edict commentary), and the number of the ‘book’ (e.g. libro quinto for 5th bk.); the Codex Iustinianus - as already the Codex Theodosianus - lists the emperor who enacted the respective constitution and the addressee. The inscriptiones in the Digesta were the most important sources for reconstructing the…

[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…