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[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)

[German version] Tutelage played an important part in both Athenian (cf. epitropos [2]) and Roman law (cf. tutela [1]). It applied not only in respect of infants and impubes ('those under the age of discretion') not under the patria postestas ('paternal power'), but also in a wider context as a gender-based tutelage in respect of women ( Kyrios [II], Tutela, [1 III]). Schiemann, Gottfried (Tübingen)

[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 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]  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] (pl. plebiscita). The resolutions of the assembly of the Roman plebs ( concilium ; plebs ). From the lex Hortensia (287 BC) onwards, these resolutions were equated with leges (laws, lex ) ( legibus exaequata sunt, Gai. Inst. 1,3) and were also so called. It can now be regarded as disproved that there existed any earlier general binding character to the plebiscitum (summary in [1. 61f.]). Over the following three cents., the plebiscitum formed the core of the entire Roman legislative process. This may partly have been because the convocation of a concilium plebis by the pe…

[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] Abbreviation of the all-inclusive designation N(umerius) N(egidius), which in Roman jurisprudence is used to describe the defendant; analogous to A.A. Schiemann, Gottfried (Tübingen)

[German version] ('liquidation of assets') is the model for the Roman collection of debts ( missio in possessionem ) executed against debtors in Roman law. If someone, esp. a tax collector ( publicani ), owed money to the state, all his assets were liquidated. The buyer had to assume the debt. The purchase price went to the treasury ( aerarium ). Guarantors ( praedes) whom the state debtor often had to procure were subject to SB as well. Debt Schiemann, Gottfried (Tübingen) Bibliography M. Kaser, K. Hackl, Das römische Zivilprozeßrecht 21996, 389 f.

[German version] In Graeco-Roman Antiquity banishment largely replaced the death penalty for members of the upper class, but also existed as an independent  punishment, as in the Attic ostrakismós . For details for Greece, particularly Athens, see phygḗ , aeiphygía , apeniautismós , for Rome see exilium , deportatio , relegatio . Schiemann, Gottfried (Tübingen)

[German version] Under Roman law the   pater familias generally held paternal authority over his children for as long as he lived. Releasing sons from the control of the pater was possible only by means of a formal and complicated legal process: the emancipatio. It was linked to formal alienation by   mancipatio , by which not only a dominus could sell his slaves but also a father his sons. By means of this ‘sale’ a father gave his sons into servitude with another pater. Even in the period of the Twelve Tablets (5th cent. BC) no suitable business practice other than the ‘sale’ …

[German version] according to the Digest title 48,2 is the charge in Roman criminal proceedings. The bearer of the accusatio is in that case a private person. This person first laid a charge (  delatio nominis ). In the later imperial period in an extra ordinem judicial criminal prosecution it was often the case that this was the sum total of the private share in the course of procedure. In the republican procedure (  quaestio ), on the other hand, the delator was always and, even later still regularly, a party after admission of the accusatio by the court magistrate ( receptio nominis) -- simil…

[German version] Roman freedmen, whose manumission ( Manumissio ) was deficient. For this reason the freedman did not receive citizenship and in general had an inferior legal status compared to other freedmen. The term Latini Iuniani ( LI) is derived from a lex Iunia ( Norbana?), probably of AD 19. It legally equated certain groups of freedmen with Latini coloniarii (holders of citizenship in a Latin colony). Therefore, they had no political rights (especially no voting rights) but were able to take part in legal transactions with Roman citizens because they had the commercium …

[German version] A couple's engagement in Roman law. The term appears to have derived from the fact that marriage in earlier times had been promised mutually through an official stipulatio (or through sponsio ) of the couple's fathers. In the late Republic and in the Principate, the sponsalia could be revoked freely and it was no longer possible to file a suit for marriage. Indirect commitments (e.g. contract penalties, Dig. 45,1,134 pr.) were abolished as well. Schiemann, Gottfried (Tübingen) Bibliography Honsell/Mayer-Maly/Selb, 392 f.  Treggiari, 145-160.

[German version] Under Roman law a unilateral promise to provide a dowry (  Dos ). Proculus (Dig. 50,16,125) gives the form of words used to make the promise: dotis filiae meae tibi erunt aurei centum (‘as dowry for my daughter you will have 100 gold pieces’). The words were said by the father or another male ancestor of the bride, or by herself, or by someone in her debt designated by her (such as a previous husband forced to return the dowry he himself had once received, following an actio rei uxoriae, a divorce). Despite its one-sided declaration the dictio dotis was considered a settlement…

[German version] The PS, the substituted child, played a considerable part in Roman legislation and legal science. This could be easily explained in view of the consequences of legitimate birth in terms of status, civil law and succession. Until the early Imperial period (1st cent. AD) it seems that the problem of dubious birth was mostly resolved within the family: The father, as part of his paternal power ( patria potestas ), had the right to expose newborn children (Exposure of children). Whether an explicit acceptance by the father of the child was required by picking up the child ( toller…

[German version] In Roman law, thesaurus refers to a treasure found by someone (Just. Epit.. 2,1,39). The Late Classical jurist Iulius [IV 16] Paulus (early 3rd cent. AD) uses the term thensaurus, which he defined as "money that was put away so far back in the past that no memory of it exists and it therefore no longer has an owner" ( vetus quaedam depositio pecuniae, cuius non existat memoria, ut iam dominium non habeat, Dig. 41,1,31,1). However, not only money but any type of valuable object was regarded as a thesaurus. Why a Greek loan-word was used for this can no longer be deter…

[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 dissolution of marriage through divorce appears to have been possible everywhere in antiquity from Mesopotamia to Rome, of course not always in the same way for men and women. Thus in Egypt in the 1st millennium BC it was possible for women as well as men to make a declaration of divorce; in ancient Jewish law, as probably also in Mesopotamia, on the other hand, the repudiation was only declared by the husband. In any case, Jewish law also linked the dissolution of the marriag…

[German version] in antiquity is both the subject of pragmatic politics ( Law, codification) and theoretical reflection (political science and legal philosophy). The latter was first discussed by the Greeks (as nomothesía) and immediately reached an intellectual high point, especially in Plato's [1] late work on laws ( Nómoi). Plato's opinion of lawgiving, as is also related by Cicero in his theory of lawgiving ( De legibus), had a sustained effect on Roman Imperial lawgiving and, therefore, on European legal science after the reception of Roman law beginning …

[German version] ('Punishment') is used in Roman law similarly to poena , but confined to 'public' punishment (Penal Law) and more specifically the death penalty. One can only speculate on how supplicium (originally probably a plea for forgiveness) came to acquire the meaning of a punishment. The Twelve Tables (5th cent. BC) do recognize the death penalty in some cases, but primarily as a private punishment; it is not called supplicium in reports on the law. A supplicium more maiorum ('punishment according to the tradition of the forefathers') is mentioned several times i…

[German version] The term iuridicus (‘person employed in law’) appears in sources of the Roman Imperial period with very different meanings. 1. From Hadrian, perhaps even Vespasian, iuridici provinciae, more frequently called legati iuridici, appear in imperial provinces. They are representatives of the provincial governor's jurisdiction, sometimes for the whole province, sometimes only for districts. It is disputed whether the juridical powers of the iuridicus were merely derived from the governor (e.g. [1. 1149]) or were genuine imperial powers (as in [2]). 2. The iuridicus …

[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] The origin of the ancient law of war, like that of international law, cannot be attributed to a particular event or treaty. Already before the Greek and Roman periods there were concepts and customs that may retrospectively be understood as part of a law of war. Thus, in ancient Mesopotamia and Homeric Greece, taking spoils was considered legitimate, and a particularly important part of the spoils was the enslavement of prisoners of war and subjugated peoples ( War booty). The OT …

[German version] (from divertere, to turn away) is divorce in Roman law. Its basis is clearly set out in a rescript of Alexander Severus in AD 223 (Cod. Iust. 8,38,2): libera matrimonia esse antiquitus placuit (it was recognized of old that marriage is free). Whether this was true of marriages in the early times that were celebrated with special rites is doubtful. But even here extant sources mention that provision was made for a form of divorce (  diffarreatio ). The ‘freedom’ of marriage meant in particular that no grounds were required for its dissolu…

[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 law the crime of forgery. Gell. NA 20,1,53 calls the false bearing of a witness, which according to the XII Tables was punishable with death, testimonium falsum. However this probably had nothing to do with the criminal acts for which Sulla (probably in 81 BC) introduced a public suit ( quaestio de falso) in the lex Cornelia testamentaria nummaria (Dig. 48,10). The jurisprudence of the Imperial period dealt not just with the forging of wills and the counterfeiting of coins as Sulla's law but also for example with the bribing of wi…

[German version] Besides nuptiae the Roman term for marriage. Matrimonium (‘motherhood’) was associated with the root mater (‘mother’), from which the word is derived. Linguistically, a woman was led or given into matrimonium, and a man had a woman in matrimonio. In law, too, matrimonium was primarily significant because of motherhood: iustum (recognised by law) or legitimum (lawful) matrimonium is a marriage between Roman citizens or between a Roman and a woman who was entitled to conubium . The children of such a marriage were Roman citizens, and their status followed the ius civile, …

[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] Fictio, rooted in Roman jurisprudence, describes a technique still used in modern legal practice in order to arrange sanctions for different circumstances from those originally addressed by the law through working on the assumption that both sets of circumstances are identical, even though in reality they are not. This concept developed from the religious rule stating simulacra pro veris accipiuntur (‘images are accepted as reality’): Priests as the first legal experts in Rome's early history transferred the concept expressed in this reli…

[German version] Little is known about the origin and spread of crucifixion in ancient legal systems. There is probably no evidence for it in classical Greece [1]. Herodotus (1,128; 4,43; 202) reports on it as a form of execution among the barbarians, Polybius (1,24,6) among the Phoenicians. Little likely is the idea of the Romans adopting it directly from the Phoenicians [2] (differing views in [3; 4]). Crucifixion however does come to be used as capital punishment among the Romans from about 200 BC (cf. Plaut. Mil. 359). The   tresviri capitales probably introduce…

[German version] The SRLB is a juristic collection of Late Antiquity which survives in several Syriac, Arabic and Armenian versions of differing scope. It was widespread in the territory of the Oriental churches, but contained secular Roman law. The interest in imperial law in the eastern provinces makes itself felt in terms of the history of transmission, first in the Sententiae Syriacae, a paraphrase of imperial laws, esp. from the reign of Diocletian and primarily from the years AD 293/4. The translation into Syriac was not directly from the (lost) Lat…

[German version] In Roman law the punishable act of substituting children, partus suppositus . Schiemann, Gottfried (Tübingen)

[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] (Burning at the stake) was a form of Roman capital punishment. The execution may originally have been left to the injured party and his agnates (  agnatio ) in a kind of ‘channelled’ private revenge. In that case, the criminal proceedings served only to establish the prosecutor's right to carry out the private punishment. This is probably how we should understand Gaius' report in his comm. on the Twelve Tables (Dig. 47,9,9), which states that this law (pl. 8,10) ordered execution by fire for premeditated arsons: igni necari iubetur (interpretation according to [1], b…

[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 abolitio, which has come down to us in the Digest title 48,16, is in Roman law discontinuation of criminal proceedings, often with the effect of a pardon (  indulgentia ), but mainly with the possibility of renewing the charge, as with the abolitio publica, ordered by the Senate or in exceptional cases by the emperor, and the abolitio privata, pronounced by the judge at the request of a private prosecutor. The abolitio ex lege, for example, takes effect on the death of the prosecutor. In any event this first appears under the designation abolitio in the imperial period…

[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…