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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] An old Roman legal rule deals with ignorantia, also ignoratio (ignorance). According to Paulus (3rd cent. AD, Dig. 22,6,9 pr.) it reads: iuris ignorantia nocet, facti vero ignorantia non nocet (‘ignorance of the law is harmful, but not ignorance of the facts’). The preferred term since the Middle Ages is error. For the Romans error and ignorantia were probably synonymous. Error in law neither prevents responsibility for individual behaviour (under criminal and civil law), nor the effectiveness of the   consensus in legal transactions inter vivos or in declarations…

[German version] The word petitio ('request') referred to a specific form of action used in the Roman formulary procedure ( formula ), for example for the actio (action), which arose out of a specific object or a specific sum of money (Dig. 12,1), or the action of the true heir against the possessor of an inheritance ( hereditatis petitio, Dig. 5,3; Cod. Iust. 3,31). Besides these, claims arising from the cognitio procedure ( cognitio ) were mostly referred to as petitio. A strong conceptual distinction between actio, petitio and persecutio (prosecution) did not exist in Roman legal…

[German version] The PP, which continued to exist as paternal power in the German Civil Code was only replaced in Germany following an interim stage of parental power with effect from 1.1.1980 by paternal care, in Rome referred to the extensive right of control which the pater familias exerted over the family. Originally the PP, like the manus over the wife (Marriage III.C.), probably had no legal boundaries, but merely moral and religious ones. The transgression of these could, for example lead to a loss of honour or an exclusion from the nobility or the equites. In Imperial times the PP…

[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. Overview International law (IL) was established as a field in its own right during the early modern period (especially by Hugo Grotius, 1583-1645). The term   ius (A.2.) gentium, which originated in Roman law, established itself as its name. However, in antiquity this term did not mean IL but those concepts of  law in general that were assumed to be common to all peoples. This also included principles that belong to IL in its narrow sense such as the inviolability of diplomatic representatives (Dig. 50,7,18). Antiquity did not have a term for IL per se. However, ancient …

[German version] Expression describing an educational measure, as can be inferred from the meaning of the word ( castum agere, ‘to make pure’). The person carrying out the punishment is often excluded from liability for the consequences of castigatio upon the punished: thus the master punishing his apprentice (e.g. Dig. 9,2,5,3). The same goes for the paterfamilias with regard to his children and the master to his slaves (Dig. 7,1,23,1; 48,19,16,2). Castigatio as a policing or juridical measure is partly linked to such private authority-based relationships: by the …

[German version] In Roman law the thief who obtains his loot through break and entry. According to Dig. 47,18 he commits a criminal act that is prosecuted as a   crimen ( publicum). In the Republic it was still a civil offence. An escapee was called an effractor ( carceris) and was also prosecuted as the perpetrator of a crimen in a   cognitio extra ordinem . Schiemann, Gottfried (Tübingen)

[German version] In the Republican period in Rome the records (also   commentarii ) that a magistrate made or had made regarding the orders decreed by him (  acta ). They were personally archived by the magistrate after the end of his period in office (Cic. Sull. 42). From the 3rd cent. AD the term gesta superseded the expression commentarii for the official records. Apart from gesta the word cottidiana occurs in the same sense . With this meaning gesta can be found in all levels of the administration of late antiquity. Ultimately the recording of official files and negotiations by gesta was tr…

[German version] Latin expression and Roman legal term for widow (II.). Schiemann, Gottfried (Tübingen)

[German version] In classical Roman law, the deliberate, groundless and bullying filing of suits and charges. In the regulatory procedure for disputes amongst private individuals, the Praetor awarded a special iudicium calumniae decimae partis, i.e. a penalty for failure to observe correct procedure of 1/10 of the value of the claim (Gai. Inst. 4,175). In the case of manumission or status claims the sanction against the fiduciary claimant (  adsertor in libertatem ) amounted to as much as 1/3 of the value of the slave. The person affected could demand four times the value ( quadruplum) wi…

[German version] A discussor (Greek logothétēs, etym. from discutere in the meaning of ‘to check, investigate’) was an official of the late antique Roman state, to whom article 10,30 of the Cod. lust. was dedicated. The main tasks of the discussores lay in tax administration. In that context, they apparently carried out external audits of the tax bases set by the   census through self-assessment ( professio). They also appear as auditors for customs, public building projects, and state regulated prices. Administrative acts issued by the discussores were called   sententiae …

[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] 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…

[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)

[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…

[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 …

[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…

[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 iuris (  Digesta 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…

[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…

[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…

[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] 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…

[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)

[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…

[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.

[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…

[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…

[German version] In Roman law the ‘simple’ death penalty by decapitation (whence also: capitis amputatio), as opposed to being burned alive (  crematio ) and crucifixion (  crux ). All three methods of execution appear in Paulus, Sent. 5,17,2 as summa supplicia (most severe punishments). Certainly from the time of Caligula capital punishment by damnatio ad bestias (animal combat in the arena) was also current practice. Decollatio was typically reserved for higher-status freemen (  honestiores ), while crematio and crux were carried out on ordinary freemen (  humiliores ) and slaves. D…

[German version] ('Revocation') occurs in two special senses in Roman law: (1) as revocatio in servitutem (' revocatio into slavery'), the revocation of manumission, probably only current in Late Antiquity (cf. Cod. Iust. 6,7,2 pr.); (2) in civil actions. There, the convicted party, having already paid, could demand retrial ( restitutio ) only with the risk of being compelled to pay the claimant for the litigation a second time by revocatio in duplum (' revocatio for double the value') if the restitution failed. This applied for the formula procedure ( formula ) and…

[German version] (literally 'to turn your back'). In Roman law, the term refers to the turning away of the private accuser in a criminal trial ( accusatio , delatio nominis ) from the case he had brought against the defendant. Beginning with the SC Turpillianum (AD 61), the tergiversatio led to a case against the accuser himself. When the withdrawal was unjustified, the tergiversatio was punished with a fine (Dig. 47,15,3,3). Beyond that, the private accuser lost his right to hold an office as well as his civic honour ( infamia , Dig. 48,16,2). The defendant who had…

[German version] An iron chain used to tether a debtor's feet  ( ferreum vinculum, quo pedes impediuntur, Fest. 162,1-2). According to the Twelve Tables (Lex XII tab. 3,3),  a creditor was apparently permitted to use the nervus to take the debtor into a kind of coercive detention, if the latter did not pay his debts despite having been sentenced.  Schiemann, Gottfried (Tübingen)

[German version] The technical term from the beginning of the 3rd cent. AD for a criminal law pardon by the Roman emperor (e.g. Cod. Just. 9,23,5 of the year 225). However there had long been pardons in Rome. They could happen during criminal proceedings (e.g. Mod. Dig. 48,16,17) as well as after them in order to lift the sanction imposed, and even before the initiation of any prosecution. In this way, Julius Caesar ordered the people's tribune M. Antonius to arrange a plebiscite to pardon those condemned according to Pompey's law on electoral fraud (  ambitus ) (Caes. …

[German version] (συνάλλαγμα/ synállagma, literally: 'mutual exchange'). Greek expression for a (business) transaction, sometimes for any type of legal obligation regardless of its creation, be it an offence or a contract. It did not have a precise juridicial meaning. Nevertheless, the Roman jurists M. Antistius [II 3] Labeo (about the time of the birth of Christ) and Titius Aristo (late 1st cent. AD) adopted the Greek word synallagma in Latin to refer to agreements that resulted in obligations for both parties. These might be so-called innominate contracts th…

[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] (lit. 'marriage tablets'). Marriage contracts in Roman law, set out in documents from the Imperial period onwards (cf. Tac. Ann. 6,45,5 on Messalina [2] and Silius in AD 48). In Roman law, marriage itself was not a (formal) contract, it was sexual communion with the intention of living a married life ( affectio maritalis). The subject of the TN, by contrast, were question of property connected with marriage, primarily the pledging of a dowry ( Dos ) to the husband for the wife's maintenance, in Late Antiquity probably also the husband's…

[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] 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…

[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…

[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] ( 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] 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…

[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)

[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] 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] ‘To indicate the name (of a suspect)’ is originally only the very first step in initiating a public prosecution in Rome. Plaut. Aul. 416 uses the expression in this way regarding the campaign conducted by the   tresviri capitales against underclass criminality. In proceedings before these magistrates, a kind of police-court justice, the meaning of delatio nominis ─ entirely in the sense of a modern complaint to the police ─ is evidently confined to the sole process of reporting a criminal act [1. 60, 78]. In the 3rd and above all the 2nd cents. BC, alongside the …

[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] 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] The word aequitas has several meanings. There is a particularly fluid transition to iustum. The latter usually tends to refer to fidelity to positive law, aequitas to justice characterizing and penetrating the whole of law. Linguistic kinship to the horizontal points to equality in the sense of the corollary of performance and counter-performance, misconduct and sanction. Additionally aequitas includes the meaning of proper appropriation of facts as equal or unequal to the cases already decided in positive law. Going still further at th…

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