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Scriptura

(124 words)

Author(s): 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…

Diffarreatio

(51 words)

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

Auctoratus, Auctoramentum

(202 words)

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

Concubinatus

(520 words)

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

Decollatio

(197 words)

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

Revocatio

(161 words)

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

Tergiversatio

(193 words)

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

Nervus

(63 words)

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

Indulgentia

(284 words)

Author(s): 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. …

Synallagma

(288 words)

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

Citations, law governing

(318 words)

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

Tabulae nuptiales

(226 words)

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

Repudium

(187 words)

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

Compensatio

(709 words)

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

Partus ancillae

(220 words)

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

Imaginarius

(208 words)

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

Dispensator

(169 words)

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

Anquisitio

(149 words)

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

Nomen

(61 words)

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

Instrumentum

(362 words)

Author(s): 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…
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