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Compensatio

(709 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version]

Partus ancillae

(220 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The offspring of a slave which, according to Roman law - similar to the young of a domestic animal which belonged to the owner of the female animal - were born as slaves of the dominus of their mother. This was in accordance with the general principle that a child acquired the status of its mother (Gai. Inst. 1,81f.). No legal relationship with the father existed. Only in the time of Justinian [1] (AD 527-565) attempts were made, regarding a (freed or freeborn) father and child to allow them the legal consequences in terms of succession accorded to illegitimate offspring (

Imaginarius

(208 words)

Author(s): Schiemann, Gottfried (Tübingen)
[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 out…

Anquisitio

(149 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] is a part of Roman criminal proceedings of the republican period in crimes against the state. The comitia passed judgement on them in a iudicium publicum. The anquisitio preceded this: first of all the peoples' tribunes, as the magistrates responsible, pleaded the intended charge three times before the assembled people (  contio ). Contrary to the opinion of Mommsen [1], the

Instrumentum

(362 words)

Author(s): Schiemann, Gottfried (Tübingen)
[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 au…

Lex, leges

(2,519 words)

Author(s): Schiemann, Gottfried (Tübingen)
[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…

Institutiones

(404 words)

Author(s): Schiemann, Gottfried (Tübingen)
[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…

Notary

(88 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ( notarius). In legal cultures favouring the written record of acts of law, a notary is needed as an officially appointed scribe. This function was held, in Ptolemaic and Roman Egypt for example, by the agoranómoi , and in the Roman Imperial period and especially in Late Antiquity, the tabellio (documentary scribe). The Latin technical term notarius

Criminal procedure

(366 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] From a historical perspective it is only possible to speak of a criminal procedure (CP) in the technical sense if we can distinguish a field of criminal prosecution in the public (state) interest ( Punishment; Criminal law) from legal prosecution in the civil interest (including any civil law penalties, Lat.   poena ). The fact, for example, that private  revenge is channelled via the obligation to conduct a judicial procedure still does not constitute a CP: to protect public peace and state authority, only the …

Homicide

(422 words)

Author(s): Neumann, Hans (Berlin) | Thür, Gerhard (Graz) | Schiemann, Gottfried (Tübingen)
[German version] I. General In antiquity homicide is often not yet differentiated from other crimes of killing ( Killing, crimes of). In many ancient laws the special reprehensibility or danger of a behaviour that resulted in the death of another human being was not yet considered a reason for a respective sanction. Thus, in the case of ancient Oriental laws, it would be inappropri…

Carmen famosum

(180 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The carmen famosum (CF) (according to Paulus, Sent. 5,4,6) or malum carmen (defamatory poem) is a criminal offence like the   occentatio placed beside each other in the Tabulae duodecim (8,1). It is possible that this crime was only barely comprehensible even for ancient writers (e.g. Cic. Rep. 4,12), particularly because of the extremely severe penalty for mere defamation: probably  dea…

Litis contestatio

(653 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Term In Roman legal language, lis is the expression for a dispute, in particular when it is taken to court. Litis contestatio (LC) thus refers to the ‘witnessing’ of such a dispute (Fest. p. 34,50 L.). The instigation of a claim (action) and defence (repudiation of action) in front of witnesses determined the course of a (civil) law suit. Until the predominance of the imperial cognitio procedure around AD 300, LC was the crucial point [1. 77] in the entire proceedings. Schiemann, Gottfried (Tübingen) [German version] B. Legis actio procedure The necessity of summonin…

Vincula

(309 words)

Author(s): Schiemann, Gottfried (Tübingen)
[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 to by a statement of Ulpian (Dig. 48,19,8,7) about the carcer (gaol), according to which the detention was used not for punishment but for safe-keeping. Carcer and vincula are often used synonymously. Private vincula in this sense, however, were evidently severely limited by the Lex Poetelia (probably 326 BC). Vincula remained a private (law) measure as a punishment for slaves, however. They had to carry out their work in chains and were locked in an ergastulum for the night. Also, vincula publica (public vincula) were possible - again in connexion with imprisonment in a carcer - as a sanction for magi…

Contumacia

(299 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Derived from contemnere (to despise; this meaning of the word survives today in the contempt of court of British law). In Roman law the contumacia meant above all the defendant's failure to obey a legal summons in the exercise of extraordinaria  cognitio . No similar use of the word contumacia

Verdict

(105 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Greek and Roman Antiquity, the verdict was determined entirely by the preceding complaint or charge, e.g. in Athens by dike [2] (civil complaint) and graphe [1] (criminal charge). For a verdict to be pronounced, there then remained nothing further to be established; it was merely a question of counting the votes of the deciding committee. The function of the ‘judge’ ( iudex ) in Roman law was essentially confined to hearing evidence. The legal judgement was anticipated by the admission of the complaint ( actio [2]), in particular by the praetor . Pro…

Elogium

(352 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] [1] Roman honorary inscription for deceased men An honorary inscription placed by the Romans on the tombs of deceased men of rank, on statues and wax masks within buildings or on public places. Most of the elogia on public d…

Contract

(1,677 words)

Author(s): Hengstl, Joachim (Marburg/Lahn) | Schiemann, Gottfried (Tübingen)
[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., …

Querela non numeratae pecuniae

(189 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] 'Claim owing to failure to make monetary payment', in Roman law a development of the corresponding exception ( exceptio ). With this querela, the debtor could annul the validity of an abstract promise to pay ( stipulatio ), if he had entered into the stipulatio in the expectation of a loan payment, but the monetary payment had then not been made. The QNNP was, like the exceptio non numeratae pecuniae from the end of the 2nd cent. AD, among the easemen…
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