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Caducum

(180 words)

Author(s): Manthe, Ulrich (Passau)
[German version] The lex Papia Poppaea (AD 9), by economic pressure, indirectly forced marriage and the having of children by taking away from unmarried persons the entire capability of inheriting ( capacitas) for a bequest that fell to them in the course of an inheritance, and half the ability to work for married couples without children; married partners amongst themselves had capacitas for one tenth only ( Decuma). The bequest fell, as caducum (‘forfeited’ possessions), to those men named in the testament who had children, otherwise (since Caracalla always) to t…

Decuma

(121 words)

Author(s): Manthe, Ulrich (Passau)
[German version] (=  decima sc. pars). The law of Papia Poppaea (AD 9) limited to one-tenth of the inheritance (with additional allowances for children) the capacity ( capacitas) of spouses in manus-free marriage to inherit from the testament of another. A wife in manus- marriage was, however, sua heres entitled to inherit the entire estate [2].The limit was abolished in AD 410 (Cod. Iust. 8,57,2). Apart from inheritance law, the tithe occurs as subject of a vow (Varro, Ling. 6,54; Dig. 50,12,2,2) and as the tax on crops from provincial land [1].  Caducum Manthe, Ulrich (Passau) Bibliograp…

Intestatus

(556 words)

Author(s): Manthe, Ulrich (Passau)
[German version] A person who died without leaving a valid testament. Under Roman ius civile the estate of the deceased firstly devolved upon the   sui heredes , or else upon the agnatic relatives of the next degree ( agnati proximi). According to the Law of the Twelve Tables (5th cent. AD), s ui became heredes in the case of succession, agnati only acquired property ( familia, XII 5.4) and became successors through   usucapio ; in classical Roman law (1st-3rd cent. AD) agnates became successors through   aditio hereditatis . From the 2nd cent. BC on, agnatic relat…

Codicilli

(126 words)

Author(s): Manthe, Ulrich (Passau)
[German version] The last will and testament written down as an informal document. In a codicil, only individual instructions could be laid down, but not the appointment or removal of an heir. Codicils were valid as an amendment to a testament if their establishment was reserved in an earlier testament or confirmed in a later one ( c. testamento confirmati); non-confirmed codicils (intestate codicil) could only contain entails. A so-called codicillary clause of the content indicating that a testament should also be valid in case of formal errors, allowe…

Lex Iulia et Papia

(204 words)

Author(s): Manthe, Ulrich (Passau)
[German version] To improve conjugal morals and to combat childlessness, Augustus, through the lex Iulia de maritandis ordinibus (18 BC), forbade marriages outside one's class and ordered through the lex Papia Poppaea (AD 9) that citizens of a marriageable age had a duty to marry, with unmarried people penalized by the forfeiture ( caducum ) of assets gifted to them in wills, and childless married people with the forfeiture of half of this; on the other hand, anyone who had children was accorded numerous privileges ( ius liberorum, ‘children's privilege’). Which regulations should…

Sui heredes

(263 words)

Author(s): Manthe, Ulrich (Passau)
[German version] ('house heirs') in Roman law were the offspring subject to the power of the testator who, on his death, immediately became independent ( sui iuris) (Gai. Inst. 3,2-5), i.e. children, grandchildren, whose father predeceased them, etc., the uxor in manu ('wife in the manus', i.e. subject to the legal power of the husband), who was in inheritance law on an equal footing with a daughter of the house ( manus ), also adoptive and posthumous children ( postumus [2]), but not those released by emancipatio or from manus marriages. SH, immediately consequent upon the death of…

Immiscere, se

(132 words)

Author(s): Manthe, Ulrich (Passau)
[German version] ( alicui rei, ‘to become involved in something’). A suus heres (immediate heir,  Succession, law of III A) could not effectively disclaim a legal or testamentary legacy according to  ius civile ( semel heres semper heres), but if he declared the disclaimer before the praetor, he was treated by the praetor as if he had not become the heir (  abstentio ). However, if he had once behaved outwardly like an heir ( se immiscere), he lost the  beneficium abstinendi. Se immiscere further designates the start of the discharge of other transactions. Only from the 4th cent. AD has se immi…

Abstentio

(134 words)

Author(s): Manthe, Ulrich (Passau)
[German version] According to Roman law sui heredes acquired the inheritance due to them on succession; if a suus had not yet outwardly shown that he wanted to keep the inheritance, the praetor permitted him to abstain from it ( se abstinere). In this case the suus was still the heres, but did not receive the inheritance and was not responsible for the debts of the estate; the next in line received the bonorum possessio. An extraneus did not need an abstentio; as he did not acquire the inheritance until he came into it, he could simply relinquish it, but also declare a disclaimer ( omittere). …

Consanguinei

(66 words)

Author(s): Manthe, Ulrich (Passau)
[German version] Siblings with a common father ( uterini share the mother). According to Roman civil law consanguine sisters had a legal right of inheritance while agnatic relatives of a higher degree of relationship (aunts, nieces etc.) were excluded from intestate inheritance (Gai. Inst. 3,14; Inst. Iust. 3,2,3a).  Agnatio;  Succession, law of Manthe, Ulrich (Passau) Bibliography H. L. W. Nelson, U. Manthe, Gai Institutiones III 1-87, 1992, 65f.

Aditio hereditatis

(76 words)

Author(s): Manthe, Ulrich (Passau)
[German version] According to Roman law a suus heres acquired the inheritance left to him without any further action on his part, but an extraneus only on accession ( aditio). The aditio could take place by formal declaration of accession ( cretio) or by informal exercise of the will to accept ( pro herede gestio).  Succession, law of III B;  Abstentio Manthe, Ulrich (Passau) Bibliography 1 H. Honsell, Th. Mayer-Maly, W. Selb, Röm. Recht, 41987, 469 ff. 2 Kaser, RPR I, 715 ff.

Vacantia bona

(169 words)

Author(s): Manthe, Ulrich (Passau)
[German version] An heirless estate ( Bona ). In the Republic, the members of the gens of a deceased person had a right of acquisition (Gai. Inst. 3,17); if they did not exercise it, anybody could take possession of the estate and obtain it by usucapio ('adverse possession') (Gai. Inst. 2,52-58). If in a will ( Testamentum ) an heir was appointed, but had become unavailable, the will and all its dispositions were ineffective. From the lex Iulia et Papia (18/9 BC) onwards the VB fell as a caducum ('forfeited') to the state, which also fulfilled the provisions of t…

Minimum share

(320 words)

Author(s): Manthe, Ulrich (Passau)
[German version] As wills passing over sons were not admissible in classical Greek law ( diathḗkē B.), the question of minimum share did not arise. Even in Roman law, however, a law of minimum share for close relatives developed only slowly. At the beginning of the development there was the right of mandatory heirs ( Succession, laws of III E) to invalidate the will entirely or receive at least a part of the estate in case they were passed over ( praeteritio ). Against disinheritance ( exheredatio ) the mandatory heirs were powerless. A true right of minimum share did exist for a patronus

Cognatio

(162 words)

Author(s): Manthe, Ulrich (Passau)
[German version] According to Roman law, the kinship established by a blood relationship, which also applies to non-agnates; the degree was determined by the number of mediated procreations or births. The cognatio gained legal importance with the lex Cincia (204 BC): the cognati up to the 6th degree of relationship ( sobrini, great grandchildren from the same great-grandfather) were exempted from this law's ban on gifts. The lex Furia (beginning of the 2nd cent. BC) exempted these cognati from its restrictions, as well as in the 7th degree the children of sobrini. Later, the praetor g…

Lex Voconia

(324 words)

Author(s): Manthe, Ulrich (Passau)
[German version] A law introduced by the people's tribune Q. Voconius Saxa in 169 BC, which barred testators of the 1st census class (minimum assets of 100,000 as, Gai. Inst. 2,274) from naming a female heir in their will; this did not affect the intestate law of succession of women but following the law ( Voconiana ratione) women also had the intestate law of succession withdrawn from them from the 3rd degree of kinship (Paulus, Sent. 4,8,20). At the same time, the lex Voconia (LV) limited the maximum amount of legacies to half the inheritance (Gai. Inst. 2,226). In practice, …

Heredium

(146 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In the language of the XII Tables (7,3) the farmstead measuring two iugera (0.5 ha.; Plin. HN 19,4,50), consisting of a hortus (farm with garden, Paul Fest. 91,12 L.) and ager (agricultural land). Tradition has it that Romulus assigned to each citizen an inalienable heredium, which was passed on to the respective heir ( heres) (Varro Rust. 1,10,2); the XII Tables already allowed the entire property to be sold and inherited (6,1; 5,3), this therefore included the heredium. As a heredium was insufficient to sustain a large family with servants, Mommsen's assum…

Ademptio legati

(51 words)

Author(s): Manthe, Ulrich (Passau)
[German version] The revocation of a formal legacy, initially only by formal declaration ( non do; heres ne dato) in a will, from the 2nd cent. AD also possible by informal exercise of will (e.g. disposal of the object) (Dig. 34,4).  Legatum Manthe, Ulrich (Passau) Bibliography Kaser, RPR I, 755

Exheredatio

(241 words)

Author(s): Manthe, Ulrich (Passau)
[German version] Disinheritance. Archaic Roman law allowed the appointment of an inheritor in a will probably only when there was no suus heres (family heir). Later, it became possible to appoint one among several   sui heredes as an heir and to disinherit the rest. In the historical era there were no limits on the disinheritance of sui, but this had to be expressly stated in the will. Sons had to be disinherited by name, other sui (wife ─ uxor in manu ─, grandchildren, great-grandchildren etc. of both sexes) could be disinherited inter ceteros (as a group without stating their names); …

Substitutio

(325 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In Roman law the appointment of a substitute heir ( substitutus), so as to avoid the danger that a will might become ineffective through the potential absence of the heir appointed by it (as a consequence of prior death or refusal; Succession, laws of III. D.). Instances of the modern-day persistence of substitutio vulgaris ('common substitution') are ' gemeine Substitutio' (§ 604 Austrian ABGB) and ' Ersatzerbeinsetzung' (§ 2096 German BGB). In the case of dependent minors of either sex, a Roman testator could prepare a second will settling the su…

Agnatio

(202 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In Roman law the relationship between persons who are under the manus or patria potestas of the same pater familias or would be if he were still alive (in other words were descended from him in a purely male line, not interrupted by emancipation, Gai. Inst. 1,156). Those persons subjected to this power, who on the death of their pater familias immediately became free from power ( sui iuris), formed the narrower circle of the   sui heredes ; a particular group of agnati were the   consanguinei . The agnatic system was the basis of the civil right of intestate inheritance. Agnati pr…

Inheritance, division of

(147 words)

Author(s): Manthe, Ulrich (Passau)
[German version] Greek law   datetai . In early Roman law, co-heirs formed a joint ownership community ercto non cito (‘without division undertaken’ [2]; each co-heir was authorized to dispose alone over estate property. The division occurred by consent or by the  legis actio per arbitri postulationem (Gai. Inst. 4,17a); the   arbiter divided the individual estate assets and where applicable likewise ordered equalization payments. Since the pre-Classical period, the community of co-heirs was regarded as a community of owners ho…
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