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Compensatio

(709 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Compensatio (charging to account) was a rather complicated institution in Roman law. The basic idea, however, is simple: when two parties involved in a court case have claims against each other, the claims are not treated separately, but are offset one against the other -- as far as the amounts cover each other. Both claims are thereby paid off, so that the complaint becomes groundless and the defendant can no longer sue for his counter-claim. The complication in Roman law resulted from the different legal procedures connected to the different reasons leading to claims. Ga…

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 ( natura…

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 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…

Dispensator

(169 words)

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

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 comitia were not just a pardoning body which decided after a   provocatio against the sentence previously passed by the magistrate. As Brecht [2] and Kunkel [3] discovered from their studies, the anqu…

Nomen

(61 words)

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

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 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…

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 designates in Late Antiquity a senior official or officer with a special imperial mission, and also the secretary of the consistorium (as tribunus et notarius). Schiemann, Gottfried (Tübingen)

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 inappropriate both with regard to the term and the matter to speak of particular offences amounting to homicide within the framework of crimes of killing. Neumann, Hans (Berlin) [German version] II. Greece In archaic Gre…

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  death penalty. It was a matter of private punishment, though, so it was barely more than a legally p…

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 t…

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 is encountered before the introduction of this procedure in the Principate and of the contumacia, probably under Claudius. Admittedly a comparable function existed in earlier civil proceedings after the XII Tables (5th cent. BC) in a judge's ruling for o…

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 display were removed by the censors of 158 BC. Most extant material dates from the Imperial period, where it was at times employed in the exalted reconstruction of times long since past. This also applies to the most important and best known examples of elogia, i.e. the inscriptions on the marble statues of the Mars temple on the Forum Augustu…

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., 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…

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 easements accorded to debtors by the Roman emperors in the proceedings of the cognitio extraordinaria (cf. Cod. …
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