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Fictio

(422 words)

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

Crux

(354 words)

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

Syro-Roman law book

(350 words)

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

Suppositio Partus

(20 words)

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

Comparatio publica

(125 words)

Author(s): 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 …

Crematio

(340 words)

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

Gestio

(309 words)

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

Abolitio

(109 words)

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

Estate register

(390 words)

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

Crimen

(862 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Public criminal prosecution The legal technical category in classical Roman jurisprudence of the Principate applied to public criminal procedures ( iudicium publicum) where crimes were prosecuted based upon accusation (  accusatio ). As with civil legal forms in Roman Law, it is not a characteristic routine legal transaction but should rather be understood as a means of attack and defence in a trial (  actio ,   exceptio ). The meaning of the term crimen predominantly lies in the procedural field. Therefore, crimen appears most frequently in the sources in co…

Remancipatio

(163 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law, the actus contrarius ('reversion') of the mancipatio (formal alienation). It served, for instance, for the return of objects given for fiduciary safekeeping ( fiducia ). The remancipatio was also a constituent act in the complex ceremonies of the emancipatio (release from the family group). Above all, however, it was an important element in divorce proceedings in the old manus marriage (cf. also Marriage III): if such a marriage was to be dissolved, the wife had to be released from the special authority of the husband. This remancipatio consisted of a ce…

Intestabilis

(124 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law, legally incapable of being a witness ( testis). The Inst. Iust. (2,10,6) lists as intestabiles: women, minors, slaves, the dumb, the deaf, the mentally ill, legally incapacitated wastrels and those who had been declared improbus (dishonourable) and intestabilis by a special law. Legal arrangements of this kind result, for example, (according to Ulp. Dig. 47,10,5,9) from the lex Cornelia de iniuriis against authors or distributors of articles with offensive content or (according to Cassius Dig. 1,9,2) from the lex Iulia de repetundis against those re…

Confusio

(232 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In the confusio (the ‘merging’) the same person is both debtor and creditor or owner and holder of a limited material right, e.g. a usufruct. In Roman law confusio led to the extinction of the claim or the right. The late classic jurists (3rd cent. AD) occasionally use the term consolidatio for confusio without creating material distinctions. The effect of the confusio could not be prevented by the will of the parties. However, the Roman jurists occasionally assume a duty to refound the claim or right. The opinion of the Proculians ( Law schools) that the   noxalis actio

Mater familias

(157 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] While the word pater familias indicates a clearly defined legal status, the designation of the Roman mother of a family is a social rather than a legal one. Originally, MF was the honorary title for a married woman living in the → manus (marital control) of her husband, with whom she had children. Her social position was, in contrast with (and in compensation for) her legal status ( Manus), a high one. She had precedence over all other members of the household apart from her husband. By the time the manus marriage had fallen into disuse, the term MF - literally the mot…

Minores

(735 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (more complete: minores viginti quinque annis; singular: minor) in Roman law those under the age of 25. In a narrower (and originally technical) meaning, persons aged 15 to 24 were called minores, in a broader sense anyone who had not reached the age of majority (at least 25 in Roman law). The legal regulations for minores in the narrow sense concerned their ability to enter into contracts and other legal transactions (contractual capacity). This must be distinguished from legal capacity, that is the ability to establish and acquire r…

Translatio

(166 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] [1] see Status [1] A. see Status [1] A. Schiemann, Gottfried (Tübingen) [German version] [2] Legal expression Translatio iuris ('transfer of rights') finds expression in the famous phrase: "A person cannot transfer to another person rights greater than those he has himself" (' nemo plus iuris transferre potest quam ipse habet', Ulp. Dig. 50,17,54). This formula from the early 3rd cent. AD reflects the concept in classical Roman law that subjective rights do not emerge anew in the person receiving them -- as was assumed in the ear…

Novellae

(881 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Overview Novellae is the abbreviation for the Latin novellae leges (‘new laws’, also Greek nearaí diatáxeis). In general, it refers to the legislation of the emperors in Late Antiquity, enacted chronologically after the official collections of the Codices Theodosianus and Iustinianus ( codex II.C.). In a narrower sense, it refers to the novellae of Iustinianus [1], which in modern editions of the Corpus iuris constitute the fourth and last part of this 6th-cent. collection. In contrast to the other parts ( Institutiones Iustiniani, Digesta, Codex Iustinianus), h…

Consensus

(331 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] is the unanimous will of the parties of a contract (  contractus ). In Roman law it was the basis of the binding character of buying (  emptio venditio ), contracts of lease, work and employment (  locatio conductio ), of commission (  mandatum ) and association (  societas ). The ‘invention of’ consensus as the central element of a system of civil law is one of the ‘grandest juridical achievements, and one of the most influential for further development’ [1. 180]. The liability resulting from consensus necessitates neither a specific form nor an advance nor perfo…

Confarreatio

(182 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] According to Gai. Inst. 1,112, the term confarreatio is based on the fact that during this religious act a farreus panis (a bread made of emmer but not spelt) was sacrificed by the bridal couple to Iuppiter farreusfar ). Apart from the   coemptio and a one-year valid duration of the marriage ( usus), the confarreatio was the third option of establishing the   manus (male power) over the wife. This effect was probably an ancillary result of the confarreatio while the highly festive conclusion of the marriage probably took centre stage in the ceremony. It to…

Contractus

(352 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Gai. Inst. 3,88 contractus constitutes, with delicts, one of the two higher branches of the whole Roman law of obligations. This has led many analysts to translate contractus simply as ‘contracts’. Originally, however, contractus was really not limited to a commitment as a contract but actually meant literally only ‘to incur (an obligation)’. In the period of the principate contractus was indeed understood to be linked to an agreement ( consensus, conventio) (Dig. 2,14,1,3). Even then, however, not every agreement would necessarily lead to a contractus. As no co…
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