Search

[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,…

[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…

[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…

[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…

[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…

[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…

[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 …

[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…

[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 …

[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…

[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…

[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 …

[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…

[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…

[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…

[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…

[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 …

[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…

[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…

[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…

[German version] A command of the  praetor or provincial governor based on his   imperium (e.g. Iulianus, Dig. 43,8,7) for the purpose of quickly ending disputes, especially over   possessio (possession) and quasi possessio (Gai. Inst. 4,139). It always touched upon public interests. First signs of interdicta are found in Plautus (Stich. 696; 748-750; Asin. 504-509), Terence (Eun. 319f.) and the lex Agraria of 111 BC (l. 18); Cic. De or. 1,10,41 alludes to it. Interdicta are partly orders, e.g. exhibeas (upon presentation) or restituas (upon restitution), hence interdicta exhibitor…

[German version] (originally mancupium) initially denotes the Roman legal transaction later called mancipatio . Mancipium is one of those ‘ancient Roman legal terms of transparent clarity’ [2]; it appears to denote an act of taking something by hand. It is thus interpreted in ancient etymology (Varro, Ling. 6,85; Gai. Inst. 1,121). But another interpretation is more probable: just as aucupium (bird-trapping) derives from auceps, so mancupium derives from manceps; auceps denotes the bird-trapper ( avem capiens), manceps one who grasps domestic power ( manum capiens) rather than …

[German version] Border, particularly between properties (e.g. Celsius, Dig. 41,2,18,2). The boundary stone (  terminus ) was sacred; anyone who ploughed it out of the ground was cursed ( sacer; Paul Fest. 505,20f. L.) together with the team of oxen, according to a regulation ascribed to  Numa Pompilius. The fields were separated by a 5 feet wide ridge that according to the Twelve Tablets (tab. VII 4) could not be acquired (see   usucapio ) (Cic. Leg. 1,12,55f.). The border adjustment suit ( actio finium regundorum) was an actio in personam (personal suit) and yet it was pro vindicatione r…

[German version] ('laying claim to a thing', still ' Vindikation' in modern German legal usage). Originally the (ritual) laying of a staff on an object or a slave; in Roman law of the Principate, the claim of a Quiritarian owner (i.e. one in possession of Roman citizenship), not in possession, against the possessor for establishment of ownership, relinquishment and, where called for, pecuniary compensation. The RV superseded the ancient sacramental action in rem ( legis actio sacramento in rem) with its solemn rituals before the president of the court (king, consul, praet…

[German version] ('that which is requested'). The grant of an item until revoked (“... quod precibus petenti conceditur tamdiu, quamdiu is qui concessit patitur”, Ulp. Dig. 43,26,1 pr.) in Roman law. The origin of precarium was the loaning of land by patrician landowners to their clients. Elsewhere, for example, a pledgor could retain the pledged item as precarium (Iulianus Dig. 13,7,29), or a credit purchaser might receive the purchased item as precarium (Ulp. Dig. 43,26,20). Initially, precarium was not a legal relationship, but solely an actual grant which could be te…

[German version] The PLT ('defence with long duration') is a defence of the possessor as opposed to the owner because the latter has not claimed his right for such a long time. The introduction or recognition of the PLT are linked with a rescriptum of Septimius Severus and of Caracalla of AD 199 which continued an already existing practice. The PLT concerned provincial land that was not accessible to acquisition by prescription ( usucapio ), but it was also related to moveable objects (Mod. Dig. 44,3,3; Marcianus Dig. 44,3,9). Its precondition was ' legal commencement of possession' ( iustum…

[German version] (‘Fruits’). Objects extracted from another object (‘mother object’), such as agricultural crops and tree fruits, wood, the young of animals, hair, wool, milk (Dig. 22,1,28 pr.; 7,1,48,1). Fructi belonged to the owner of the mother object before they were separated from it (Dig. 6,1,44), and basically also afterwards. A security (  pignus ) to the mother object was basically also extended to the fructi, if after separation they became the property of the person hypothecatinging the object (Dig. 20,1,1,2; 29,1); the hypothecary right of the lessor comprised also fructi…

[German version] In Roman law, the hereditary authority to maintain a building on another's land (heritable building right). This right was at first granted by communities (cf. FIRA III no. 109), later also by private individuals. Its basis was a lease, generally of unlimited duration, or a purchase, also donations or liabilities (Leasehold). The owner of the superficies was protected against the landowner by an appeal of purchase or contract of services on the object of concern, against third parties by the relinquishment of the right of appeal to whi…

[German version] I. History In Rome, auctiones, auctions, which were carried out by a magistrate, were designated as public in order to distinguish them from private auctions where the owner willingly sold part of his property. The magistrates arranged on the one hand the sectio bonorum, the auction of the goods of those who owed debts to the public, and on the other hand, the venditio bonorum, the forced auction of the goods of other debtors. The venditio bonorum, which is documented since the 2nd cent. BC, was a forcible measure taken by a creditor against a debtor who…

[German version] is encountered in religious law (e.g. as in the announcing of the auspices by the augures ), in criminal law (as a ‘declaration’ similar to the public announcement by the denuntiator or delator), in fiscal law (as nuntiatio ad fiscum, Callistratus Dig. 49,14,1 pr.) and in civil law. Here nuntiatio denotes in particular the objection to another person's building alterations ( operis novi nuntiatio , Ulp. Dig. 39,1,pr.): a) on the basis of a right of obstruction, b) for the purpose of damage prevention or c) for the enforcement of the observanc…

[German version] Initially means home, e.g. as the object of purchase and sale (  locatio conductio ; Dig. 2,14,4; 19,2,5) or a protective object of the lex Cornelia de iniuriis (Dig. 47,10,5,5). Habitatio also means the right to live, which is founded in part on legacy (  legatum ) (Dig. 7,8,10 pr.). The relationship of the habitatio to the   usus and the   usus fructus (usufruct) was doubtful. In effect ( effectu quidem) the habitatio legata ‘almost’ ( paene) was covered by the usus legatus (Papin./Ulp. Dig. 7,8,10 pr.). The Roman jurists occupied themselves with questions lik…

(geographical/geological alluvium, alluvial). [German version] Geography Alluvia are young soils created by sediments deposited along coastlines, in low-lying marshes and valleys, particularly extensive in river flood plains and estuaries. Thus, modern inland towns such as  Pella or  Ephesus and many others in ancient times were on or near the coast. As a technical term used by lawyers and agrimensores ( Surveyors: Cic. Orat. 1,173; Cod. lust. 7,41), adluvio refers to the increase in size through these natural processes of individual owners' land ( accessio). Sauerwein, Friedr…

[German version] first occurs in Pliny (HN 9,35,117 mancupatio) in place of mancipium ( mancupium), to describe an ancient Roman civil law action establishing power over persons ( mancipium ) or objects ( dominium ). The mancipatio procedure for the 2nd cent. AD is depicted as follows (Gai. Inst. 1,119): in the presence of five witnesses and a bearer of the scales ( libripens), all of them Roman citizens of full age ( quirites ), the person receiving the object declares as follows: a) that he is the owner under Quiritary law, and: b) that he has pur…

[German version] ('Subserviency') in Roman law meant the encumbrance of a piece of land in the sense that the owner was obliged to tolerate certain impacts enacted by the encumbrancer or was not allowed to impact another piece of land in certain ways (however: there was no obligation towards positive actions, in faciendo consistere nequit). Servitus on rural tracts of land ( servitus praediorum rusticorum) included road easements ( iter), paths for driving cattle ( actus), roads for transporting goods ( via), water ducts ( aquae ductus). In the city, servitus ( servitus praediorum urban…

(ὑποθήκη; hypothḗkē). [German version] [1] Legal term Legal Schanbacher, Dietmar (Dresden) [German version] A. Greek law The hypotheke (ὑποθήκη = deposit, literally ‘place under’) is encountered in Attic law as an encumbrance upon property, houses, businesses, as security on loan provisions. Stones of hypotheke (  hóroi ) specified the mortgaged encumbrance. The hypotheke was an institution found throughout Greece, but outside Attica the designation of the mortgaged property by the hóroi is found only on a few Aegean islands. The hypotheke was enforced by foreclosure. This …

[German version] Transfer or procuration of possession ( possessio ) in Roman law. In the ius gentium (common law of the 'peoples', i.e. non-citizens) it was equivalent to the forms of reassignment of the mancipatio and in iure cessio in the ius [D.] civile (law for Roman citizens, Gai. Inst. 2,65; Dig. 41,1,9,3), which applied to res mancipi alone, while the traditio sufficed for res nec mancipi (e.g. clothing, gold, silver). It required a iusta causa (legal basis, e.g. sale, gift, Gai. Inst. 2,19 f.; Paul. Dig. 41,1,31 pr.). If a res mancipi, e.g. a piece of Italian land, was merely…

[German version] (hereditary leasehold). The technical term first appeared in an Imperial constitution of AD 386 (Gratianus/Valentinianus/Theodosius/Arcadius Cod. Iust. 11,62,7). Even earlier, the term fundus emphyteutici iuris (Cod. Iust. 11,62,1) crops up in a constitution of 315. Around that time emphyteusis appears, along with the original Roman right to ager vectigalis, as the Hellenistic form of hereditary leasehold . Ager vectigalis is communal land (  ager publicus ) that is made available, in exchange for rent ( Taxes), for cultivation in perpetuity ( in perpetuum) (D…