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3. STATUS SLAVERY, AND CITIZENSHIP
Status lay at the heart of the law of persons. The law of persons described the various categories of status, and hot it could be acquired and lost. Legal Personality For Roman jurists, persons essentially meant human beings, but there are instances where non- human entities were recognized as acquiring rights and duties, eg collegia, churches amongst others. (for these examples read pages 85 and 86) Status 3 constituent elements of status in Roman law of persons- libertas, civitas and familia. Person of full status possessed all 3 elements: he had libertas (freedom) and thus was not a slave, he had civitas (citizenship) thus a citizen of Rome and not a foreigner, and he had familia thus belonging to a Roman household. Loss of any of these 3 resulted in capitis deminutio (a loss of status). There are 3 kinds of change of civil status: when we lose all 3... the change of civil status is the greatest (when a citizen is enslaved). But when we lose citizenship and retain freedom the change of status is in the middle (occurred mostly when a person was deported for some misdemeanour’s). If only family is changed then the change of status is the least- Paul, Sabinus, Bk 2. Freedom and the law of slavery Gaius states in the Institutes Book 1- all men are either free men or slaves. This is the primary classification in the law of persons i.e. people either have freedom or they are slaves. Thus what is freedom? Florentinus, Institutes, Book 9- Freedom is one's natural power of doing what one pleases, save insofar as it is ruled out either by coercion or by law. Therefore it recognizes that freedom is a natural condition. At the same the same jurist went on to define slavery, thus drawing a distinction between freedom and slavery. Florentinus, Institutes, Book 9: Slavery is an instituition of the ius gentium (law of nations) , whereby someone is against nature made subject to the ownership of another. Being subject to against nature is consistent with the definition of freedom, whereby freedom is natural and thus slavery must be unnatural. The description of a slave as an object of ownership is significant as slaves were regarded as property, thus be acquired, owned and disposed. However, they were a special type of property, res mancipi, which in theory necessitated that their transfer should be effected by formal methods of conveyancing. Slaves could be owned by a private individual owner, or they could be public slaves working for the roman civil service. Slaves did not have any rights, generally because they were things and things did not have any rights. Nevertheless, there are scenarios where the slave can have certain privileges or power to alter legal relation eg a slave could make a contract on behalf of his master. Slave in the Roman society In early Rome slaves were treated well, possibly because they were a few of them. Treatment of slaves deteriorated after Roman expansion plus the increase in capture of foreigners. As a result slaves were cheap and disposable. There never once was a general policy of brutality towards the slave. Slaves could only hope to improve their condition through manumission, the legal release of a person from slavery. Enslavement It could arise through the sale of children, punishment, capture or by birth. Sale of children- In early law, the paterfamilias had the right to sell children into slavery. Evetually this power was banned. It was revived in the Empire in limited circumstances: newly born children could be
sold into slavery on the grounds of poverty, but a right to redemption was reserved to the parents should their circumstance improve. When redeemed the child gained his original status. Punishment- In the event of a crime, under the twelve tables, a thief who was caught stealing became a slave of his intended victim. There were penal slaves whose sentence involved working in the mines or fighting wild beasts and were the most degraded slaves, ownerless and incapable of being manumitted. A pardon was their only hope of survival. Those who evaded the census, thus escaping the liability to be taxed or serve in the legions, could be enslaved by the state. Also debtors who failed to pay their debts could be enslaved. A freedman (ex- slave) could be re- enslaved if he showed ingratitude to his patron (former master). Selling oneself was invalid as a free person could not be the object of a contract of sale. Attempts to sell oneself were punishable by enslavement. Capture- Resulted mainly from the capture in war of foreigner prisoners and also where a foreigner was arrested on Roman territory in times of peace, not having lawful justification of his presence there. In theory these slaves belonged to the Roman people as a whole, but most of them probably became slaves in private hands. The same position was regarded for Romans captured by the enemy, suffering the greatest change of status once captured, losing all legal powers, property owned etc. What if the slave escaped or was released? He remained a slave unless he was entitled to postliminium (benefit of re-entering the borders) Pomponius states: if during the same war he returns he has postliminium, that is, all his rights are restored to him just as if he had not been captured by the enemy. For the ex captive to be entitled to the benefits of postliminium, it had to be shown that the capture had occurred in honourable circumstances and that the return to Rome (or to her allies) had been made at the first reasonable opportunity. Whether return had to be during the same war as stated above is unclear. Birth- The basic rule of ius gentium was that the child took the status of the mother at the time of the child's birth. Thus slavery of a child occurred if the mother was a slave at the time of giving birth, owned by the mothers master. If the mother was a citizen and the father a slave, the child would be born a citizen. However a number of exceptions emerged to this. S C Claudianum provided that if a female citizen cohabited with another's male slave, despite the owner's objection, any issue resulting from the union belonged to the slave's owner, who could claim the mother as well. Hadrian brought about 2 important changes- he decreed that the owner could claim the mother and the child together or neither- an attempt to avoid separation of the mother an the child. He also decreed that a child born to a slave mother was free if the mother had been free at the time of conception or at any time between conception and birth. Legal position of the slave Slaves lacked rights. Slaves were human things (the objects of rights) without legal personality owned by their masters as res mancipi. Maltreatment- Financial value of a slave would have influenced masters treatment of it. Educated slaves were expensive things that would be properly maintained by their masters to preserve their investment. In early law a master could do as he pleased with his slave. However, brutal treatment of slaves could result in disapproval from the censors, resulting in legal disgrace. In 81 BC, the unjustified killing of another's slave was made a crime. A lex Petronia penalized masters who forced their slaves to fight wild beasts in the arena without the consent of a magistrate in the 1st^ century AD. Claudius issued an edict stating that if a slave had been abandoned due to old age or sickness he would obtain freedom and the status of Junian Latin. Domitian AD 81-96 prohibited the castration of slaves. In Hadrians reign reform came about in regards to the castration above: Ulpian, Duties of Proconsul Bk 7: Should anyone act in defiance of my edict, the doctor performing the operation shall suffer a capital penalty. Hadrian also enacted measures that forbade masters from killing their slaves without consent of the magistrates. Antoninus went further to state that unjustified killing of a slave by a master constituted criminal homicide. (look at the text on page 93) This text allowed a slave to initiate a process that might lead to improvement in his
and phrased in the imperative. In later law, implied manumission was allowed by Justinian. The salve had to be clearly identified, small mistakes like misspelling could be ignored. Testators could impose conditions when freeing slaves (statuliberi). Thus such slaves remained slaves until the condition was satisfied but their position was preferable to that of ordinary slaves. The testator's heir became owner of statuliberi, including the slaves children before the satisfaction of the condition. Illegal and immoral conditions were ignored, as were impossible conditions. These conditions would simply be struck out and the slave be free unconditionally. The general rule was that the slave was freed from the moment when the heir entered upon the inheritance i.e. when he did anything characteristic of an heir. The general rule did not apply to statuliberi who were freed when the conditions were met. Informal manumission- this occurred when the master did not follow the formal methods but had a clear intention that the slave should be freed. Relevant intent could be demonstrated by letter or between friends. In the former case, the slave was freed by appropriate written words, having effect from the time of appraisal. The latter needed a declaration by the master in the presence of friends or family. In later law any witnessed act sufficed to show intent. Before reforms by Augustus this form of manumission was void, but the slave was recognised as having de facto freedom protected by the praetor should the master exercise his full rights. Manumission reforms of Augustus Lex Fufia Caninia- restricted the number of slaves that could be manumitted by will. Maximum that could be free was 100, the permitted quota varying in proportion to the number of slaves owned by the deceased. If to many slaves were named in the will, the first named (within the permitted number) were freed; and if the testator put the names in a circle, s that no clear order was ascertainable, none of the slaves were freed. Lex Junia- The statute tackled the problems of uncertain status of informally manumitted slaves by creating a new status for them, that of Junian Latin, whereby the salve acquired freedom, but not citizenship. Lex Aelia Sentia- important provisions in this statute include; establishing a council (both in Rome and the provinces) to investigate manumissions. Any manumission was deemed void if the master was under 20 years of age unless he obtained permission from the council on showing good cause. Paul, Lex Aelia Sentia, Book 1, provides an example of good cause- the slave may have aided the master in a battle, protected him against brigands, healed him in sickness, uncovered a plot... since many services can occur for which it is honourable to grant freedom by a formal decision... The statute also includes; a slave under the age of 30 cannot be manumitted except for a good cause and with permission of the council. A manumission in the breach of this rule resulted in the slave becoming Junian Latin. Certain slaves with criminal records were prohibited from becoming citizens on manumission. They were given the status of dediticii. Manumissions made to defraud creditors were deemed void. A manumission made by an insolvent master fell in this category, irrespective of his intention. Gaius comments on this, It is deemed that a man manumits to the detriment of creditors if he is insolvent at the time of manumission of would become insolvent after the grants of freedom; for men often hope that their assets are greater than they actually are. Justinians reforms He simplified the law on manumission. The status of Junian Latin and dediticii was abolished. Citizenship was acquired on informal as well as formal manumission. The old methods for informal manumission was still used, but needed to be evidenced by a document attested by 5 witnesses. The quotas for manumission by will were abolished- lex filia repealed. The rule that slaves had to be aged at least 30 years was abolished. Citizens and non- citizens Roman citizenship
Basic rights and duties The chief constitutional rights were the rights to appeal against a death sentence, to vote in assemblies, and to stand for public office. Women only had the 1st^ right mentioned above. Private law rights include: Commercium- right (of overriding importance) to participate in the process and transactions of the ius civile, including the right to make formal contracts and conveyances, and to seek legal remedies in the courts. Testamenti factio- right to participate in the making of a valid will, whether as a testator or a witness, and the capacity to be made beneficiary. Conubium- right to enter civil marriages. Since such marriages created potestas i.e. the legal power of a paterfamilias over his children it can be appreciated that conubium was the most important right. The duties include; military service in the legion was necessary at certain times. Citizens in the legions were considered as the elite troops and non citizens as the auxiliary forces. When the Roman army or the Emperor was on the move it was the duty of the Roman citizens to provide him with appropriate accommodation and sustenance. Citizens were responsible for the upkeep of roads in their communities, the provision of transport animals for the State's postal service. They owed a duty to act as guardians, judges, jurors, and were secifically subject to the payment of certain taxes. Becoming a citizen Citizenship was based predominantly on a principle of personality rather than territoriality, status depending on birth or some kind of grant. Birth- basic ius gentium rule applied under which the child normally took the status of the mother. However, the rule did not apply in the case of a Roman civil marriage: the child took the status the father had at the time of the child's conception. Lex minicia (passed probably in the late Republic) provided that if a female citizen married a non citizen without conubium, the child did not acquire citizenship. (check page 101 to clarify this). Manumission Grant- granted by the state in various circumstances e.g. as a reward for special services to Rome. Most important grant was the constitio Antoniniana- AD 212- the decree which expanded citizenship to all peoples of the Roman Empire. It applied to all free people other than dediticii, and further only applied to existing persons. Proof of citizenship Possession of 3 names, was regarded as a distinctive characteristic of Roman citizens. The clearest proof was provided by the census, which supposedly contained a list of all citizens. However things like constitio Antoniniana made the census less reliable. Consequently the lex Aelia Sentia introduced a system of birth registration for citizens and a register was also established to record citizens created by individual grant. Categories of citizenship Persons alieni iuris- those who were sui iuris (of their own law i.e. legally independent, not in potestas of a paterfamilias) and those who were alieni iuris (persons subject to potestas i.e. they were of another's law). Women- Papian states- the condition of females is inferior to that of males. This could be owed to the fact that a woman lacked potestas. She lacked some constitutional rights mentioned above. The sui iuris of a woman of full age was required to have a guardian; while the man was not. She could not act as a guardian, the male could. If she entered a manus marriage she was unable to own property or even make contracts.
Latins prisci- inhabitants in the Republic of communities neighbouring Rome and allied with her in the Latin league. They had most rights of Romans including commercium, conubium and testamenti factio, and the right to vote in Roman assemblies. Colonial Latins- inhabitants of Roman colonies that had been established at strategic points in Italy and beyond during expansion. They had commercium and could vote in assmeblies, they lacked conubium, had restricted testamenti factio and could not hold public office. Junian Latins- created by lex Junia for informally manumitted slaves and survived until the abolition by Justinian. The Junian lAtin could marry, but his marriage could not be a Roman civil marriage as he lacked conubium. They had commercium, but only a very limited amount of testamenti factio.they could not make will or benefit under them, except under a trust. Owed usual duties freedman owed their patrons. They could acquire citizenship by: Itertatio- repetition- if a defective manumission had occurred, the Junian Latin could acquire citizenship by repetition of the manumission procedure. Anniculi probatio- proof of one year old- under the lex Aelia Senetia a Junian Latin who had been incorrectly freed from slavery, while under 30, could acquire citizenship by proving to a magistrate, inter alia, he had married a citizen or a Latin before 7 witnesses and that a child born of that marriage, had attained one year of age. Citizenship was also acquired for his wife and child. Erroris causae probatio- proof of mistaken ground- occurred where a party was seeking anniculi probatio but was mistaken as to the status of their spouse, i.e. the latter proved to be a foreigner. On proof of the error citizenship would be granted provided the conditions of anniculi probatio were met. Peregrini- free persons who were neither citizens nor Latins, but subject to municipal law of their own. They lacked rights both in public and private law that went with Roman citizenship, but commercium and conubium were occasionally granted to such communities as rewards to services. They were thus outside ius civile but were not totally excluded from the Roman legal system because the rules of ius gentium applied to them. Eg they were able to acquire ownership pver property through ius gentium modes of acquisition. They later became integrated with the Roman system due to the development of the formulary system and the peregrine praetor.
- The Roman Family Basic Notions Basic concept that each family had a paterfamilias (head of household). He was the eldest living male ancestor of a specific family. He had in his power (potestas) all descendants traced through the male line. The paterfamilias was sui iuris i.e. legally independent- he could not be in anyone's power. Ulpian stated- Heads of household are those who are in their own power (potestas) whether they are over or under the age of puberty... A child became sui iuris on the father's death, assuming the father was the paterfamilias. The form of relationship called agnatio was one where everyone who was in the power of a paterfamilias was related to him and to one another. (read page 110 for clarification). The agnates remained in this relationship even if the paterfamilias died. The test of agnatio was subjection to a common potestas i.e. all those who were in the power of the paterfamilias, or even have been if he had been alive, were agnatically related. Most agnates were blood relations (i.e. cognates) but there were some exceptional circumstances. Potestas As a general rule, all legitimate descendants (as well as wives in manu) were in the power of the paterfamilias, whatever their age. A paterfamilias did not have power over a daughter who had become a vestal virgin- who were legally independent subject to the discipline of the chief pointiff. If a Vestal retired after the compulsory 30 year service, she would return to the potestas of the paterfamilias or if he was dead she would require a Gaurdian. The various powers that were comprised in potestas: Rights over the person:
Exposure- the paterfamilias had the right in early law to expose newborns if he wished t reject them. Exposure entailed abandoning them to their fate. Such a child would normally be reared as a slave although in theory it remained free. Exposure was prohibited in AD 374. Power of life and death- a child was subject to the general power of life and death the paterfamilias held over them. The twelve tables described the power as absolute0 right to flog, imprison etc. when death was imposed, it was for a serious misconduct. The lex Julia de adulteriis 18 BC allowed a father to kill his married daughter if she was found committing adultery. Both the seducer and the daughter had to be killed or else the father would be committing homicide. This power gradually curtailed. Killing a child even with a cause came to incur serious consequences. In the 2nd^ century AD it was stated by Ulpian- A father cannot kill his son without giving him a hearing but must accuse him before the prefect or the provincial governor. Sale surrender and recovery- In early law the paterfamilias could sell his children into slavery, which became obsolete during the Republic. There was also the power to place children or sell them into civil bondage. This means that children belonged to paterfamilias- if a child was stolen it was regarded as stolen and thus the father could recover it by vindicatio and sue for damages under the action of theft. Praetors even granted the interdict to compel the production of a child- in- power. Marriage and divorce- Originally he could compel his child to marry , becoming obsolete during the Republic. The paterfamilias retained the right to refuse consent to marry as Paul states- Marriage cannot take place unless everyone involved consents. Consent could be disputed if it was refused without a good cause- Augustus allowed this. A paterfamilias had the power also to compel his child to terminate a marriage through divorce. If the paterfamilias was a granddad he was entitled to the children of the son's marriage on the divorce of the son. If the husband was sui iuris, and thus a paterfamilias, he retained potestas over the children of the marriage on his divorce. General rule, the wife did not have rights of custody to the child. Rights over property: Anything a child acquired eventually belonged to their paterfamilias- i.e. they could not own property. Institutes, Gai 2.87. Anything received by children in our potestas or our slaves... is acquired for us, because a person in potestas can have nothing of his own. Children were however entitled to a peculium as like that of slaves. Augustus allowed sons legal rights in property when acquired during military service i.e. the peculium castrense- Pomponius states- It is agreed that nothing is owned to fathers from the military property of their sons. The son in power could dispose of it inter vivos or by will, although before Hadrian the son had to make the will while on military service. Costantine extended the category of property in which a son could have rights. It included; earnings acquired in State service, and the sons position was the same as the one in military property (they could only dispose of it by will after Justinian reformed this area). Second, gifts or legacies acquired by sons or daughters on their mother's death should be regarded as a separate fund that the paterfamilias did not own but could use, retaining any resulting profits (i.e. entitled to the profits or income of the fund but not the capital), the child could not dispose of the property whilst the paterfamilias was still alive. If the child was emancipated (for this case) the father could retain a third of the property, and after Justinian the father could retain half. Contracts: A child in power could make contracts on reaching the age of puberty. Benefits under these contracts passed on to the paterfamilias, but not the liabilities. The other party could not sue the son until he became sui iuris, even though the son was bound by it. Even then, the contract was only enforceable to the extent of the son's assets. If the child was allowed to a peculium or made contracts with the paterfamilias's authorization, the paterfamilias was liable under the same actions that the praetor allowed against the master to enforce contracts made by slaves. Emancipation: Formal release of a child in power from potestas by the paterfamilias, making the child sui iuris, moreover, breaking the agnatic ties between the child and its natural family. The child would retain the peculium if there was entitlement to it (like the peculium castrence). The virtual presumption being the child could also keep the peculium given to him by the paterfamilias.
Adoption- adopted became illegal to marry. Gaius states- When the relationship of brother and sister arises because of adoption it is impediment to marriage while the adoption lasts. So I will be able to marry a girl whom my father adopted and then emancipated. Types of marriage Marriage in manus- form- the importance of this form diminished during the Republic. It could be created in the following ways: Coemptio- (purchase) a form of bride purchase, effected through formal conveyance per aes et liabrium in the prescence of a witness. The husbnad bought the bride in a manner similar to some purchase of property, the bride selling herself with the permission of the paterfamilias, if she was sui iuris, the permission of the guardian. Confarreatio (sharing of bread)- religious ceremony before witnesses and the chief pointiff, requiring, inter alia, the eating of special bread by the couple. Significance lay in the fact that it provided a means of entry to the highest echelons of priesthood. Usus- if a man and a woman cohabited for a year with affectio maritalis i.e. regarding themselves as man and wife, a manus marriage was created, even if the parties had not undegone any form of wedding ceremony. The required marital intent would normally be presumed from the fact of cohabitation. Manus would not arise if the woman absented herself for 3 nights in each year as per the 12 tables. If this occurred it would be a free marriage see below. Legal consequences- the husband exercised a power and control over the wife comparable to the potestas of a dad over his child. She would be regarded as her husband's daughter, eg under the intestacy law. She could not own property except for personal belongings. Property owned by her before the marriage passed to the husband or the paterfamilias, subject to the rules on dowry, as did anything she acquired during the marriage. She could not make binding contracts without the permission of the husband, and generally was not allowed to participate in litigation and the process of the law. It also cut off her former agnatic ties: she exchanged one family for another and left the power of her paterfamilias. A wife could be released form manus by a procedure similar to the emancipation of a daughter. The husband did not have power of life and death over his wife, nor could he sell her into slavery or surrender her noxally or give her into adoption (being different position to that of a child in potestats). Free marriage- in the sense that the wife was legally independent- the husband did not hold legal power over her. Form- created by cohabiting parties, provided that they regarded themselves as man and wife. Intent being necessary. Ulpian found intent more necessary then the fact of cohabitation. The parties would have undergone the ceremonies customary in Roman weddings, which served as intent. Betrothal and giving of dowry also proved the same. Legal consequences- wife did not exchange families- she remained an agnate of her original family. She remained in the power of her paterfamilias and if she was sui iuris, she remained under the guardianship of her tutor. Her property remained her own and she could keep whatever property she acquired during the marriage. The wife could make contracts and generally could participate in the legal process. The possibility that wives could be tricked out of their property by their husbands resulted in a ban on inter vivos gifts between husbands and wives. Ulpian states- as a matter of custom, we hold that gifts between husbands and wife are not valid. The exception to this rule was that inexpensive anniversary gifts were allowed, as were gifts that did not enrich the donee. Divorce Not judicially controlled. It could be as an act of one of the parties to the marriage or as to the insistence of the paterfamilias of the husband or the wife. Divorce in manus marriage- if the husband divorced his wife without good cause, it could result in infamia. Good grounds of divorce include- poisoning of children, theft of keys, and the imbibing of wine. Not clear whether a wife could divorce the husband. In the early Empire it seems that she could end the marriage unilaterally by repudium. The procedure required to terminate the marriage was largely a variation of the ceremonies required to create the marriage, since the wife had to be transferred back to the authority of her family. Eg a ceremonial resale of the
wife terminated the marriage by coemptio. By the end of the Republic, divorce could be carried out in the same way as that of a free marriage. Divorce in free marriage- no grounds were necessary, but a causeless divorce could incur the anger of the censor, as in the case of a manus marriage. Paul states- a true divorce does not take place unless an intention to remain apart permanently is present. So things said and done in anegr are not effective until the parties show by their persistence that they are indication of their considered opinion. In essence all that was required was one party to cease the intention to be married. Parties could divorce by mutual consent or unilaterally (repudium). The former required that the parties should intentionally cease living together. Repudium occurred where only one of the spouse wished to end the marriage- normally to notify the other party by letter or messenger. Augustus required the presence of 7 witnesses for the sending of a notification of repudium. Lex Julia de adulteriis- it was designed by Augustus to improve moral standards by making adultery by a wife a criminal offence- triable by special adultery courts. The wife would be banned from remarrying her lover after divorce, she suffered reduction of her rights in property, half of her dowry entitlement and confiscation of a third of her separate estate, and she could lose her citizenship and be relegated to an island. A husband who knew of his wife's adultery was placed under a duty to divorce and prosecute his wife. If he failed to act within the required time, he was guilty of the crime of lenocinium i.e. acting like a pimp, punishable in the similar manner to adultery. The wife had to be prosecuted within 60 days of the divorce. Her paterfamilias could prosecute her within that period but the husband had precedence. If neither took action, anyone had the right to prosecute within the next four months i.e. upto 6 months from the divorce. This law applied to all forms of marriages. The lover was subject to prosecution and a penal consequence- forfeiture of half of his property and possible relegation; or sentencing to hard labour. He could be killed in certain circumstances by the paterfamilias of the woman. The husband too had the right to kill if he caught the lover committing adultery in his home, provided the lover was of a lower status. The husband could also detain the lover for 20 hours, for the purpose of testifying to the matter. Dowry It consisted of property (or some other contribution) given to the husband by the wife or her paterfamilias or others (like clients of the paterfamilias) on her behalf. Normally given on marriage, but could be given before or after it. The dowry was regarded as the wife's contribution to the running of the matrimonial home. On a manus marriage the husband acquried the property of the wife if she was sui iuris, in the late Republic this property was regarded as dowry. If she was not sui iuris the paterfamilias of the wife was expected to provide a dowry. The husband did not have a right to dowry unless it was specifically promised. Rights in the dowry- the general position in early Roman law was that the husband became the absolute owner of the dowry. He could do as he pleased with it, did not have to return it or any part of it on the termination of the marriage. It became practice for the donor to insist on a formal promise by the husband to return the dowry when the marriage ended, or to dispose of it in the agreed manner. This dowry was known as dos receptitia (returnable dowry), the husbands promise enforceable by the actio ex stipulatu (contractual remedy). An alternative practice- dowry to be valued (dos aestimata), the husband agreeing to pay the agreed valuation on the termination of the marriage. He could as he wished with the property. He did not have to return the capital; his only duty was to pay back the valuation. He did take the risk of deterioration or damage to the property. Praetors introduced the action for the wife's property in an attempt to protect wives, particularly as regards dowries that were not valued or returnable. Under the action the divorced wife could recover whatever the judge thought was a fair share of the dowry, subject to allowing the husband to make reasonable deductions. The husband as a result came to be regarded as owing a duty of care in respect of the dowry. Javolenus states- According to servius, a husband is responsible for fraud and negligence in connection with all property in the dowry apart from money. Paul also states- In matters relating to dowry, the husband... must exercise the same diligence as he shows in his own affairs. Reforms of Augustus- His aim was to improve the position of the wife. The husband was banned from selling dotal immovables (dowry consisting land) without the consent of his wife. In addition mortgages
Res publicae- things belonging to the state. Most important of all was provincial land i.e. land in the provinces outside italy. A distinction was drawn between senatorial and imperial provinces. The former were regarded as belonging to the Roman people, but the latter were classified as Imperial property- acquired quite recently. Although provincial land could not be owned, one could have proprietary interests in it. Res universitatis- things intended for public use, owned by corporate public bodies like municipalities. Eg streets, buildings, parks etc. Res nullius- things belonging to no one, including wild animals, abandoned property. They could be subject to human or divine law. Res sanctae- things considerd to be protected by the gods eg city walls. Anyone in violatiion of these were subject to heavy criminal sanctions. Res religiosae- tombs, canotaphs and land used for burials. Res sacrae- things formally dedicated to the gods eg temples, shrines etc. The seashore- this lacked clarity as to which it belonged to either public or private. One text by Neratius states- shores are public, not in the sense that they belong to the community as such but that they are initially provided by nature and have hitherto become no one's property. Another text describes it as being open to all or common to all- Celsus states- the shores... I consider belong to the Roman people. Movables and immovables This was a distinction between land and anything else that could be owned privately. Land itself was classified as Italic land (res mancipi) or provincial land i.e. outside Italy. Fungibles and non- fungibles Fungibles were things regarded as existing primarily in quantities (e.g. money, grain) rather than separate entities. They are normally consumed through use. Non fungibles were things which had a separate identity and a degree of permanence eg a book. Important distinction due to contracts as the contract of mutuum was concerned specifically with the loan of fungibles. Sale of fungibles could only take place by stipulatio whereas non fungibles could be sold by using emptio venditio. Res mancipi and Res nec mancipi Classification of property, abolished by Justinian. Its significance lay in the conveyance of property. Full title (dominium) over res mancipi could be transferred only through formal modes of conveyance- mancipatio and cessio. Res mancipi according to Gaius were slaves, beasts of burden, Italic land, houses on such land, and rustic praedial servitudes. As regards to animals, there was a juristic dispute about the moment as to when the beasts became res mancipi. Defining res mancipi- those things which had to be conveyed by mancipatio or cessio in order for dominium to pass. It can also be described as things useful or essential to the household in early Roman society: the most important means of production of a peasant economy. All other things were classified as res nec mancipi and did not need to be conveyed by formal modes, simple delivery (traditio) sufficed to pass full title. Ownership Essentials of dominium (ownership) In order for a person to have dominium, he would have to have commercium (general rule that the law of a community was for the members of that community only, and that the stranger was without rights, see earlier notes), the property had to be privately owned, and the property must be acquired by an appropriate mode of acquisition. Commercium- only Romans and foreigners who had been gramnted commercium could have dominium. Foreigners could not own things under Roman law, as it appears. The law permitted a different type of ownership for foreigners- peregrine ownership, which seems to be protected by a modified form of
vindicatio. Peregrine ownership could be obtained by the ius gentium modes of acquisition (discussed below) but not through ius civile modes of ownership. Property capable of private ownership- property outside of private ownership could not be owned i.e. provincial land among others, though this land could be rented out on a specific lease. The holders of this lease lacked dominium, but had interests in the land, they were protected by modified vindicatio and it was transferable by ius gentium modes of transfer like delivery. Appropriate mode of acquisition- Dominium over res mancipi could not be acquired unless such property had been transferred by mancipatio or cessio. What happened if these modes had not been used? Mancipatio and cessio were formal conveyances, the former requiring several witnesses and strict adherence to ceremony, while the latter necessitated the presence of a magistrate. Later to ease up trade barriers, delivery was used to transfer res mancipi, and the transferee's interest were protected by the development of the concept of bonitary ownership. The nature of ownership Land- general rule, a land owner owned everything above and below the ground. Ownership could be divided vertically but not horizontally e.g. a farmer could divide a field by splitting half and that is vertical. In flats, the owners of upper stories could not be owners, but simply tenants with contractual rights. Restrictions on owners- under the 12 tables, there had to be a space of at least 5 feet between neighbouring properties, and owners could not plant trees within 5 feet of the boundary line (9 for olive trees). There were rules dealing with trespass, private nuisance and ryland v fletcher. It also restricted the demolition of houses. As for damage caused by a neighbour, from the neighbour's defective state of the property, the praetor, on application by the offended neighbour, ask the other party to promise security in the event of damage. If the owner of a piece of land suffered damage as a result of new building on an adjacent piece of land, the Praetor could prevent the construction from continuing with an operis novi nuntiatio ( ‘declaration of a new work.’ It civil law, the phrase is used to refer to an objection, warning or protest against a new work undertaken by another person to one’s detriment.) Where construction work was done forcibly, the praetor could also grant an interdictum quod vi aut calm (“interdict because of force or stealth”. It refers to an interdict issued against a person who forcibly or secretly changed a claimant’s property. ) to prevent further damages. The neighbour whose property was threatened by these actions could sue with the actio aquae pluviae arcendae for the removal of the structure as well as compensation, but could be brought against a neighbour who has altered the flow of water. As Ulpian states- This action is appropriate whenever water is likely to cause damage to a field as a result of a man made construction, i.e. whenever someone causes water to flow elsewhere than its normal and natural course. There was a need to show respect for the neighbour's enjoyment of his property, which can be illustrated by the rules protecting the enjoyment of light and views. It was possible to create a servitude allowing the building of the property beyond a reasonable height. Marcellus claims- The light should not be blocked out entirely, but as much should remain as is sufficient for reasonable daily use of the property by the inhabitants. A right to view is evident in classical law. A person could be stopped from building if this obstructed his neighbour's view. A servitude could also be created here, allowing the view to be blocked. Only views of seas or mountains seems to be protected. Servitudes A proprietary right involving the use- such as the right of way- of the property of another person. Sucha property can be described as the servient thing, as it was subject to the burden in favour of the holder of the servitude. Incorporeal thing that could only exist over corporeal things. They could be personal or praedial. General principles- no servitude over your own property- a person could not be the benficiary of a servitude over his own property. If the holder of a servitude acquired the land in which he held a servitude, would lead to his servitude being ceased, as per Gaius. Servitudes could not be possessed- this is because they were incorporeal. They could be enjoyed, and were protected by interdicts.
Use of property- usufructuary entitled to occupy and control the property but, due to the duty to return the property unimpaired, he had to maintain it in the state in which it was given to him. He could not use the property in an unauthorised manner, nor could he alter its character, even if he improved it. Ulpian claimed the usufructuary can improve what he finds (by so called painting the walls of the building) so long as he does not change the character of the house (i.e. by dividing rooms of the house). This is surely confusing. Naratius denies even the right to make what appear as basic improvements stated by Ulpian. The duty to maintain the property differed from the type of property, i.e. if it was agricultural property it had to be kept in cultivation. The standard of care the usufructuary was expected to show was that of a bonus paterfamilias- high duty- being liable for any deterioration of property caused by his negligence, however slight. He was entitled to hire out or sell the enjoyment of the usufruct as per Ulpian. He could not transfer the usufruct itslef as it was non-transferable. Fruits- right to take and own the fruits of the property subjected to the usufruct. Fruits can be classified as civil or natural. The former consisted of the income from hiring out property comprised in the usufruct e.g. earnings of a slave. The latter comprised the ordinary natural produce of the property. Ulpian states- The question was raised... whether the offspring of a female slave belonged to the usufructuary... the rules of usufructuary are not applicable in this case. This could be due to the economic reality, being that the slave was far too valuable. If a slave acquired property during the course of the usufruct, it was generally presumed to be that of the master (owner), unless it was acquired on behalf of the usufructuary. As regards to inter vovis gifts made to the slave, Ulpian says- if something was left or given to the slave out of consideration for the usufructuary, the slave will acquire for him.... and vice versa. In order to become the owner of natural fruits the usufructuary had to gather or collect them. As for civil fruits they were acquired on delivery, i.e. on their receipt. Quasi- usufruct- over what property could usufruct be created? Corporeal things and somehting that could not be consumed through use (due to the duty of restoration above). Not possible to have usufruct on perishables like money. As a result quasi usufruct were allowed on such things, the donee in effect becoming the owner of the property, with a duty to restore the equivalent value on the termination of the usufruct. A fraction of ownership- a usufructuary did not have possession, but would seem as owner, having limited interdictal protection for his enjoyment of the property and a right to own fruits. Usus- Ulpian says- A man to whom a right of use if left is entitled to use but not to take the fruits. It was a lesser right to use property. The rule concerning fruits was eventually relaxed: it seems the usuary was entitled to keep as much of the produce so as to maintain his household. He could not sell or hire out the enjoyment of the property, or allow anyone else to occupy it in his place. He could take paying guests and keep the proceeds. If the usus comprised of the use of a house, the usuary's family was entitled to reside there. He also gave security, applying the same principles of usufruct. Habitatio- right to occupy a house for life. Created only by will. The person entitled to habitatio could let out the house. Services of slaves and animals- created only by will. Creation, protection and termination of servitudes Creation- praedial servitudes created by mancipatio, cessio (used to create all praedial servitudes including res mancipi), deductio (occurred if on the conveyance of land by mancipatio or cessio, the tarnsferor reserved for himself a servitude over the transferred land in favour of the land that he retained), will (leave land by will subject to a servitude in favour of an adjacent owner), adiudicatio (creation of praedial servitude if a judge in deciding on the division of common property held that a servitude should run in favour of part of the land), Pact and stipulation (used normally in relationship to provincial land. The pact consisted of an agreement between the parties, breach would result in payment of a penalty fixed by stipulation. Created contractual rights only. Prateors were prepared to treat such arrangements ascreating rights in rem), long enjoyment (by long possession- check book page 167/8) Protection- chief remedy was actio confessoria (An affirmative petitory action for the recognition and enforcement of a servitude) As for a tenement owner, he could bring the actio negatoria (An action, brought to repel a claim of the defendant to a servitude in the plaintiff’s land) if he specifically wished to disapprove the existence of a servitude. Praetorian interdicts were available to protect the person who was exercising the servitude.
Termination- Ending praedial servitudes: Destruction- if the dominant tenement or the servient was destroyed, or the latter underwent fundamental change, or the subject matter of the servitude ceased to exist. Non use- lost if the servitude was not exercised for 2 years. As regards to rustic servitudes, mere non use sufficed. If the dominant tenement owner failed to object for 2 years, the servitude extinguished. Justinian extended the period to 10 years if both parties resided in the same province and 20 if they did not. Merger- if the dominant and servient tenement were acquired by the same owner. Cessio- right to a servitude lost if it was formally ceded by the dominant tenement owner. Abandonment- it could constitute non use. Nothing changed if the servient tenement abandoned his property: the property remained burdened even thought here was no one against whom the servitude could be enforced. A dominant tenement owner could enter into the servient tenement's property and carry out repairs. Termination- ending personal servitudes: Death- attached to a person thus ended by death of the holder. Affirmed by Ulpian. Expiry of term Loss of status In addition personal servitudes could be ended in ways similar to praedial servitudes, e.g. cessio could be used to cede a personal servitude to the owner, so did destruction or fundamental change. Contractual proprietary interests Contracts could only give rise to rights in personam and not proprietary rights (rights in rem). There were some exceptions to this: Emphyteusis- originated as a perpetual or long lease of land (belonging to the state or city) to a private individual in return for ground rent. The tenant was eventually given protection by proprietary remedies, providing he did not default in payment of the rent. Paul says- Its accepted that those who take a lease of land from a municipality, to be enjoyed in perpetuity, although they do not become owners, yet have an action in rem against anyone who has taken possession... so long as they pay the rent charge. The tenant could sell the land, but the owner had the right of first refusal. If the latter chose not to buy, he was entitled to 2% of the purchase price. The tenant could deal freely with the land, create servitudes, leave it to his heirs, and was entitled to the fruits. He was given modified vindicatio to protect his interests. He had a duty to return the property substantially unimpaired in the event of termination of interest. Superficies- Originated in grants by the state or municipalities of land for building purposes. When the tenant buolt upon the land he didnt become owner as the buildings were attached to the land. Tenants were however given special interdict by the praetor. Later they became full proprietary right in rem, being in a similar position as above Emphyteusis. Possession Ulpian says- Ownership has nothing in common with possession... this was regarded as physical control of the sort that was protected by possessory interdicts, whereas ownership was the ultimate entitlement to property. In practice most owners have possession. Possession can be regarded as some evidence of ownership. It could also be an important factor in obtaining ownership, and several modes of obtaining dominium were based on possession. There were 3 different types of degrees of possession. Interdictal (legal) possession, protected by possessory interdicts. Civil possession i.e. the possession that could ripen into ownership over time. Natural possession, which consisted of being in physical control or custody of a thing. Acquisition of possession Safest to describe Roman possession as such physical control over property as was protected by possessory interdicts. Paul states- we take possession both physically and mentally. i.e. asserting physical control and mental intent.
vi armata (recovery of possession without the limitation of a year, and even if the evicted person had previously held the land by force, stealth or permission as against the evictor- only if armed force had been used) for immoveable.
- Acquiring Ownership Methods of acquiring ownership can be classified in various ways- original, where the acquisition of ownership did not depend on there being a prior owner. Derivative, where ownership was derived from a prior owner. Some methods were formal while others casual. For the former case, ownership passed because of the use of a particular form and ceremony, whereas in the latter case, ownership depended on the ground or cause of the acquisition. Gaius says- Of some things we acquire ownership under the laws of nations which is observed, by natural reason, among all men generally, of others under the civil law which is peculiar to our city... necessary to treat the former of it first. Justinian followed the basic distinction between ius civile and ius gentium modes. The importnace being that ius civile modes were confined to those with commercium i.e. Romans, whereas ius gentium modes applied to acquisition by citizens and non- citizens. Derivative modes of acquisition Mancipatio Originated from the 12 tables, and was the primary ius civile mode of transferring res mancipi until the late empire. Formal requirements- Gaius refers to mancipatio as an imaginary sale, a description that gives some insight to the required procedure. A sale being the most important causa for the conveyance. According to Gaius, the sale required the presence of the transferor and the transferee, the property to be transferred, at least 5 witnesses, and a libripens i.e. a person holding scales. The witnesses and the libripens had to be citizens of age with commercium. The transferee grasped the property, asserted his ownership with set words, and struck the scales with a piece of bronze which he then handed over to the transferor. On the completion of this the transferee became dominus outright. In the case of moveables, it seems that only as much as could be conveyed by one mancipatio as could be grasped. However, as regards to a flock of animals, one representative animal sufficed. As for land, a symbolic sod of earth or piece of turf was grasped: it need not to have been from the actual land being mancipated. Thus, absent land could be mancipated- the ceremony did not have to take place on the land or in it's vicinity. The set words comprised of an assertion of title to the property- same used in a vindicatio- followed by a declaration of the purchase of the thing. The piece of bronze often constituted the actual price before the use of coinage became widespread. The scales were used to weigh the bronze. Later it became usual for the transferee to say the actual price at the end of the set of words. Legal effects- mancipatio of res mancipi transferred ownership to the transferee, unconditionally (except the transferor could reserve a servitude over the property) and immediately- could not be postponed to rake effect at a later time. As for res nec mancipi, it was not clear whether use of mancipatio had the same effect, but the person definitely became owner by the use traditio- the mancipation ceremony provided enough proof for intention and would constitute a sufficient delivery. If mancipatio consisted of a sale, however, ownership normally passed only when the price was paid. If mancipatio was properly performed, the conveyance could not be impugned on the grounds such as fraud or duress- thus passing ownership irrespective of such conditions. If it lacked title, the transferee could not acquire what the transferor did not have. However, in such a case the transferee could become owner through usucapio, for the required length of time. If he was evicted before the expiry of the period, he was entitled to double the price under an action allowed by the 12 tables- the action concerning legal title. If the size of mancipated land was overstated, an action lay against the transferor for double the amount by which the price was excessive. By the empire, the mancipatio would be written down in a document, and could be relied on as conclusive evidence of mancipation, even if the ceremony had not actually taken place (record sufficed). Mancipatio was abolished by Justinian. Cessio in iure
Similar to mancipatio. Originated from the 12 tables, highly formal. Gaius tells us that cessio was performed before a magistrate, such as the praetor, with the transferor and the transferee being present, together with the property to be transferred (same as above- symbolic also for land etc.), the transferee grasped the property and utter the same set of words as in mancipatio, the praetor then asked the transferor whether he claimed the thing, if the latter stayed silent, he was taken as having ceded his rights, whereupon the praetor awarded the property to the transferee. This mode could be used to transfer res mancipi and res nec mancipi. The chief use of cessio was in relation to incorporeal things e.g. creating servitudes. It was also used in a procedural role in the law of persons, especially adoption, emancipation and manumission. It passed ownership at once and unconditionally, subject to the possibility that a servitude could be reserved for the transferor. There is no clear remedy available to the transferee if the transferor lacked title. Delivery- Traditio transfer of ownership of a thing through delivery pursuant to a causa. Widely applicable ius gentium mode and the standard way of conveying res nec mancipi. Used to transfer moveables or land, although the traditio of res mancipi did not give dominium to the transferee, only bonitary ownership. Bonitary ownership was protected and would convert to dominium after the required period of prescription. When justinian abolished the distinction between res mancipi and res nec manicipi, traditio was recognised as conferring dominium over all property. There had to be intent and delivery. Delivery- the essence being that the transferee is put in the possession of the property- actual physical transfer, but the transferee did not have to be involved, it could be made to his slave. Traditio longa manu- where the property was indicated or pointed t, providing that it was within sight of the parties and capable of being taken at once into the transferee's control. Pual says- there is no need for actual physical contact in order that possession may be taken; but it can be done by sight and intent is demonstrated in the case of those things which, because of their greater weight, cannot be moved... for they regarded ad delivered, if the parties agree on their transfer in the presence of the thing. Traditio brevi manu- authorization by the transferor that the transferee could keep as his own thing over which the transferee already had control. Delivery consisted of words of authorization and they provided existence of required intentions. Gaius says- for although I did not place the thing with you for that reason, now the fact that I allow you to remain with it on the ground of sale makes it yours. Constitutum possessorium- if the transferor agreed to pass ownership of the thing to the transferee, but the former retained temporary control. Agreement to pass on ownership constituted delivery as it was regarded as vesting possession and effective control of the thing in the transferee. It was used to facilitate leaseback agreements whereby by the vendor became a tenant of the property with detentio. It avoided the need for actual delivery of the property between the parties. Symbolic delivery- late empire recognised a type of delivery that can be best described as symbolic e.g. a document drawn up recording the transfer of property. Intention and iusta causa- both parties had to intend that ownership should be transferred by the delivery. Evidence of this was provided by iusta causa (lawful cause) i.e. a legal ground that was the reason for the delivery of the thing, and by which ownership normally passes (a sale). Sources suggest that iusta causa was not necessary in every valid traditio. Paul says- bare delivery of itself never transfers ownership, but only when there is a prior sale or other ground on account of which the delivery follows. If the parties were mistaken as to iusta causa, the general rule was that, mistakes were not fatal to a valid traditio provided that each party had the required intention- to pass and receive ownership. Julian says- When we indeed agree on the thing delivered but differ over the grounds of delivery, I see no reason why the delivery should not be effective... acceptance is no barrier to the transfer of ownership to you. Mistakes could occur as to the identity of the property being transferred. If material it could prevent the traditio. As to property, the crucial issue was whether there was an intention that ownership should pass of the thing actually delivered- if there was, traditio was valid. As for identity, it appears that a traditio is invalid if the transferee was not the person to whom the transferor intended to pass ownership.
