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Ususfructus

(411 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] The right, in Roman law, to use something that one does not own without diminishing its substance ( uti, therefore usus) and to draw yield from it ( frui, therefore fructus; Paul. Dig. 7,1,1; Just. Epit.. 2,4 pr.). Ususfructus developed as early as the 3rd cent. BC. The jurists of the Republic ( veteres) debated the issue whether a slave child ( partus ancillae ) belonged to the 'fruits' (Cic. Fin. 1,4,12; Gai. Dig. 22,1,28,1; Ulp. Dig. 7,1,68 pr.). An owner could grant ususfructus to another person by way of in iure cessio (Gai. Inst. 2,30), although,…

Submissio

(147 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] ('placing as alternative') in Roman law is found as replacement acquisition in case of usufruct, in dotal law ( dos ) and in the fideicommissum . For example, if usufruct ( ususfructus ) of a herd were bequeathed (on this in detail, Dig. 7,1,68-70), the usufructuary first had to replace dead or unfit animals with young from the herd. Otherwise, he was liable towards the owner. The ownership situation in the submissio was disputed. According to Iulianus [1] and Ulpian, it was in abeyance until the submissio, while according to Pomponius the usufructuary was initiall…

Possessio

(700 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] 'Possession', primarily the actual control over a thing, but in contrast to dominium ('ownership') as full legal power. As a technical term in Roman law, possessio has partly real, partly legal features ( possessio non tantum corporis, sed et iuris est, Papin. Dig. 41,2,49,1). For example, Ofilius and Nerva filius (Cocceius [6]) consider the acquisition of possessio to be a de facto matter ( rem facti non iuris, Dig. 41,2,1,3). Therefore, a pupillus (minor, minores ) without the agreement of a guardian ( tutoris auctoritas) and even a furiosus (mentally ill person) s…

Accessio

(242 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] (‘Addition’) means: 1. enlargement (opposite: decessio, see  Dig. 39,3,24,3), 2. accessory (opposite: res principalis, Dig. 33,8,2), which shares the legal fate of the ‘main thing’, as long as the association lasts (Dig. 6,1,23,5; also 34,2,19,13 for precious stones encased in silver and gold), 3. the possession period of a predecessor, additionally reckoned to the successor for protection of title ( interdictum utrubi) ( accessio temporis or possessionis, Gai. Inst. 4,151; Dig. 44,3,15,1), though according to sources not for usucaption (cf. Ins…

Pignus

(995 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Roman law of pledge developed considerably by virtue of credit guarantee practice. At first it was a law of forfeit: at the expiry of the guaranteed debt, the pledgee received ownership of the pledged item (which until then had been conditional subject to deferral), with the protection of the rei vindicatio (the claim to ownership). This is the form of the pignus in the formulae described by the elder Cato (Cat. Agr. 146,2,3, 149,2 and 150,2). Forfeiture (into slavery) was also, for instance, the fate of the (pledged) hostages surrendered in…

Usucapio

(683 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] (from Latin usus, 'use', and capere, 'to take in hand'), 'usucaption', the 'acquisition of ownership by use': acquisition of civil property ( dominium ) - land and other objects - on the basis of one or two years of possession in Roman law (Mod. Dig. 41,3,3; Ulp. 19,8; Boeth. ad Cic. Top. 4,23; Isid. Orig. 5,25,30). Usucapio was only available to Roman citizens (Gai. Inst. 2,65). According to the Twelve Tables ( tabulae duodecim , Tab. 8,17) usucaption of stolen goods was excluded (Gai. Inst. 2,45; 49). However, according to a lex Atinia (late 3rd cent./early 2nd cent. B…

Bona

(585 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] A person's property; the exact meaning depends on the context. In one sense, bona means the totality of goods in a person's possession, while the legal right to possession may be another matter: with naturalis appellatio bonorum, deriving etymologically from the word beare = to make happy, which is relevant for the fee-liable missio in bonis and venditio bonorum, possession is unrestricted (Ulp. Dig. 50,16,49). More tightly defined and restricted, on the other hand, is possession in terms of civilis appellatio bonorum; this means possession only as   dominium

Nuncupatio

(197 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Nuncupare ( nomen capere) was pertinently interpreted by the jurist Cincius as ‘express accurately, using the appropriate words’ (Fest. 176), and later by the jurist Gaius as ‘name overtly’. The Twelve Table Laws (tab. 6,1) and the augural formula spoken on the Citadel (Varro Ling. 7,8) indicate by lingua nuncupare the tongue as a tool for conveying thoughts in words. Verbis nuncupare in the devotional formula of P. Decius Mus (Liv. 8,9,8) is tautological, while nomen nuncupare (Varro Ling. 6,60) is a figura etymologica (Figures). The ceremonial promise of spolia at t…

Fiducia

(769 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Term for ‘fiduciary agreement’, (e.g. Paulus, Sent. 2,13,1) also for the object held in trust. Fiducia could be found in various aspects of Roman civil law: In the law of persons, there was the coemptio of women (a form of   mancipatio , Gai. Inst. 3,113), not only for the purpose of marriage ( matrimonii causa), but also in the context of the transference of property on trust ( fiduciae causa), e.g. in order to avoid one kind of guardianship (  tutela ) and to establish a different one (of a tutor fiduciarius) (Gai. Inst. 1,114; 115). The law of persons and obligations …

Occupatio

(723 words)

Author(s): Schanbacher, Dietmar (Dresden) | Gizewski, Christian (Berlin)
[German version] A. Privatrecht In Roman private law the term occupatio, as a technical term (most often in the form of a verb - occupare), meant the act of appropriation (Gai. Inst. 2,65-66).  As a noun it was almost exclusively used in the sense of occupation, holding (e.g. Ulp. Dig. 4,8,15). Occupatio was seen as a 'natural' mode of acquisition of ownership (alongside traditio ) in contrast to acquistion of ownership according to the ius civile ( ius A.; through mancipatio, in iure cessio, usucapio ). Foreigners (non-citizens; peregrinus ) could also acquire ownership by way of occupatio…

Dominium

(211 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Originally signified the domestic power of the   pater familias (Ulp. Dig. 50,16,195,2: in domo dominium). From the beginning of the Imperial period dominium occurs in the sense of property (Labeo Dig. 18,1,80,3; Sen. Benef. 7,5,1; 7,6,3). In the early period, the Roman conception of property is uniform, being understood at first solely as dominium ex iure Quiritium: property rights accessible to Roman citizens and at the limit to peregrini with   commercium . Later on, in honorary law established by the   praetor ( in bonis habere,   bona ), allowed…

Res mancipi

(133 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] In Roman law, RM were objects which (Gai. Inst. 2,22) were transferred by mancipatio to another person. RM could be slaves, cattle, horses, mules, donkeys (the latter according to the Sabinian school from birth, according to the Proculian school only from being tamed: Gai. Inst. 2,15); also Italian land (Gai. Inst. 1,120), servitutes rusticae such as via, iter, actus, aquae ductus (rights of way, right to drive cattle, water rights; Ulp. 19,1) and provincial land of the ius Italicum (Gai. Inst. 2,14a). With the disappearance of the mancipatio, the importance of the …

Alienatio

(285 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] means alienation, in some cases also the authority to alienate, but not yet sale (Dig. 50,16,67 pr.). Cicero (Top. 5.28) defines abalienatio as genus for traditio alteri nexu (i.e.   mancipatio ) and   in iure cessio . Gaius (Inst. 2.65) adds to this   usucapio ( alienareiure civili) and distinguishes from it alienare iure naturali, which includes, for instance,   traditio . The meaning of alienatio also covers awarding of a thing by miscarriage of justice (Dig. 40,7,29,1). The praetorian edict is concerned with regulations on alienatio iudicii mutandi causa (for the p…

Locus

(522 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] [1] Most undeveloped part of a country estate The mostly undeveloped part of a country estate ( fundus ). The estate itself forms an economic unit ( integrum aliquid, Dig. 50,16,60 pr.). The classification as a fundus or locus depends on the - dividing or linking - designation ( opinio, constitutio or similar) by the owner, be it by naming ( appellatio), by changing in the relationship of the previous nomenclature (Dig. 31,86,1; 33,7,20,7) or by changing in the bookkeeping (Dig. 32,91,3,), be it - for linking - in the course of an additional acquisition (Plin. Ep. 3,19). The lo…

Dominus

(367 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] ‘Master’ (generally, e.g. Cic. Leg. 2,15; Plin. Ep. 4,11,6). Domine/domina is from time immemorial the form of address used by children to their parents (Suet. Aug. 53,1; CIL X 7457 domine pater); the form also occurs between husband and wife (as in Scaevola Dig. 32,41 pr. domina uxor, Paulus Dig. 24,1,57 domine carissime), between close relatives, friends, and in commercial intercourse as well (cf. Dig. 13,5,26: to a creditor). Peculiar is the use of the word in relation to one's own children (CIL VI 11511; VI 17865; VIII 2862) or a ward (Dig. 32,37,2). In legal terms dominu…

Usus

(458 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] (lit. 'use') had several meanings in Roman law. For instance, it referred to the actual power over things and over inheritances as a condition of acquisition ( usucapio , on this also Twelve Tables, tabulae duodecim , Tab. 6,3), and the one-year preliminary stage of the legal power of the husband over the wife ( manus ), which, however, was interrupted according to the Twelve Tables (Tab. 6,4) if the wife remained outside the home for a period of three nights ( trinoctium;Cic. Flacc. 34,84; Gell. NA 3,2,12 f.; Gai. Inst. 1,111). Usus was also a right of use often founde…

Aqua et igni interdictio

(308 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] was issued in the earlier period of the Roman Republic against a fugitive Roman citizen accused of a capital crime, ruled by the magistrate in charge on the resolution of a public meeting (Liv. 25,4,9). With the acqua et igni interdictio (AII) the person concerned was denied all the essentials of life and life on Roman soil was made impossible for him. With the introduction of permanent courts of assizes (towards the end of the 2nd cent. BC, reinforced by Sulla) AII itself became the punishment for capital crime. It meant being outcast from …

Acquisitio

(170 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Not used as a noun until late (for instance Ulp. Dig. 44,4,4,31; epit. 19), formerly and more frequently acquirere, means acquisition. The development from verb to noun corresponds to a general tendency towards a substantival style, as shown by a comparison with alienatio/alienare (‘disposal’,   alienatio ). First the disposal, then the acquisitio were worded in clear terms and made into a legal question. Res (‘things’), were acquired singly ( singulae res) or as parts of a whole ( per universitatem), (Gai. Inst. 2,97). Acquisition was carried out under ius civile, e.g…

In iure cessio

(232 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] The in iure cessio of Roman law is an act of the transfer of a right in the form of a fictitious trial, the   legis actio sacramento in rem . It is - like the   mancipatio - not dependent on the existence of a cause in law ( causa), e.g. of a purchase agreement, but rather is ‘abstract’. The in iure cessio is concerned with items in which Quiritic ownership is possible (e.g. not provincial plots of land), and is only available to Roman citizens (Gai. Inst. 2,65). Some rights, like the   ususfructus , can only be transferred by in iure cessio (Gai. Inst. 2,30). The buyer takes up the…

Actus

(559 words)

Author(s): Schanbacher, Dietmar (Dresden) | Mlasowsky, Alexander (Hannover) | Zimmermann, Bernhard (Freiburg) | Nesselrath, Heinz-Günther (Göttingen)
[German version] [1] Legal action An action, especially a legal action (Dig. 49,1,12) i. a. defining characteristic of   alienatio : omnis a., per quem dominium transfertur, Cod. Iust. 5,23,1. Formal legal actions in accordance with the old   ius civile , e.g. the   mancipatio , are described as acti legitimi. Any added condition renders them ineffective. Additionally, actus can mean a utility (  servitus ), for example the right to drive draught animals and beasts of burden over a plot of land, including the right of way ( iter, Dig. 8,3,1pr.). This actus is a res mancipi, and is obtained i…
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