13roman Law

Trnavská univerzita v Trnave, Právnická fakulta
Inovatívne formy vzdelávania

v transformujúcom sa univerzitnom vzdelávaní
§
Matúš Nemec, Vojtech Vladár
ROMAN PRIVATE LAW
Operačný program: Vzdelávanie • Programové obdobie: 2007-2013 • Názov inštitúcie: Trnavská univerzita v Trnave, Právnická fakulta
• Názov projektu: Inovatívne formy vzdelávania v transformujúcom sa univerzitnom vzdelávaní • ITMS projektu: 26110230028
Matúš Nemec, Vojtech Vladár
ROMAN PRIVATE LAW

Roman Private Law
Authors:
© Doc. JUDr. Matúš Nemec, PhD.
© JUDr. Vojtech Vladár, PhD.
Reviewers:
Doc. JUDr. Miloš Lacko, PhD., JUDr. Dagmar Lantajová, PhD.
Published by:
© Trnavská univerzita v Trnave, Právnická fakulta, 2013
ISBN: 978-80-8082-708-3
Content
Chapter I
THE CONCEPT AND SOURCES OF ROMAN LAW................................................10
1. Law in objective meaning.......................................................................................................10
2. Law in subjective meaning.....................................................................................................11
3. Sources of Roman law..............................................................................................................11
3.1. Types of sources of Roman law.......................................................................................12
3. 2. Justinian´s codification.....................................................................................................14
a) Justinian´s code..................................................................................................................15
b) The Digest............................................................................................................................15
c) Institutes of Justinian........................................................................................................15
Chapter II
THE DIVISION OF ROMAN LAW..........................................................................16
1. Public Law.....................................................................................................................................16
1. 1. Public Law – the concept ................................................................................................16
1. 2. Branches of Roman public law......................................................................................17
1. 3. Attributes of public law....................................................................................................17
a) The precedence of all-society interest...........................................................................17
b) The coercive character of the norms of public law....................................................17
c) Subordination of subjects of public law relationship................................................18
d) Strict interpretation of the norms of public law.........................................................18
e) Prohibition of analogia....................................................................................................18
f) Public relationship is not subject to judicial jurisdiction..........................................18
2. Private law....................................................................................................................................19
2. 1. The Concept.........................................................................................................................19
2. 2. The characters of private law and its norms.............................................................19
a) Protection of the private interests..................................................................................19
b) Dispositive norms............................................................................................................. 20
c) Equal position of the subjects of the relationship..................................................... 20
d) Extensive interpretation of the private law norms .................................................. 20
e) Analogia (analogy) in private law.................................................................................21
f) Private relationships are subject to the judicial power (jurisdiction).................... 22
2. 3. Branches of private law................................................................................................... 22
a) Civil law (ius civile)............................................................................................................ 23
b) Pretorian or honorary law (ius honorarium)............................................................. 24
c) Law of nations (ius gentium).......................................................................................... 26
d) Natural law (ius naturale)............................................................................................... 29
Chapter III
JURIDICAL ACTS..................................................................................................32
1. Terminology................................................................................................................................ 32
1. 1. The concept of the juridical act.................................................................................... 33
1. 2. Conceptual characteristics of juridical act................................................................ 34
2. Legal facts................................................................................................................................... 34
2. 1. Subjective and objective legal facts........................................................................... 34
a) Subjective legal facts....................................................................................................... 34
b) Objective legal facts......................................................................................................... 35
2. 2. Effects of the legal acts................................................................................................... 35
3. Types of juridical acts.............................................................................................................. 35
a) Act of property law and act of family law.................................................................. 35
b) Unilateral and bilateral acts........................................................................................... 35
c) Formal act and informal act.......................................................................................... 36
d) Juridical acts inter vivos and juridical acts mortis causa........................................ 36
e) Ungratuitous acts and gratuitous acts........................................................................ 36
f) Abstract acts and causal acts......................................................................................... 36
g) Juridical acts in the field of civil law and honorary law.......................................... 36
4. Essentials of a valid juridical act........................................................................................... 37
4. 1. Capacity to make juridical acts..................................................................................... 37
4. 2. Expression of will............................................................................................................... 38
4. 3. Correspondency of will and its expression.............................................................. 39
4. 3. 1. Disharmony of will and its expression................................................................ 39
a) Error...................................................................................................................................... 39
b) Mental reservation............................................................................................................41
c) Simulation and dissimulation.........................................................................................41
d) In fraudem legis agere..................................................................................................... 42
5. The contents of juridical act.................................................................................................. 43
5. 1. Essential components of juridical act......................................................................... 44
5. 2. Natural components of juridical act........................................................................... 44
5. 3. Accidental components of juridical act..................................................................... 44
Chapter IV
LAW OF PERSONS...............................................................................................46
1. Natural persons......................................................................................................................... 46
2. Legal personality....................................................................................................................... 46
3. Law of the family....................................................................................................................... 48
3. 1. Status familiae.................................................................................................................... 48
a) Patria potestas................................................................................................................... 49
b) Manus...................................................................................................................................51
c) Mancipium......................................................................................................................... 52
d) Dominica potestas........................................................................................................... 52
3. 2. Status libertatis.................................................................................................................. 53
a) The Legal position of the slaves..................................................................................... 53
3.3. Status civitatis...................................................................................................................... 58
a) Roman citizens.................................................................................................................. 58
b) Foreigners (peregrini)....................................................................................................... 59
4. Marriage in Roman law........................................................................................................... 60
4. 1. Marriage as a private matter with legal consequences........................................ 60
4. 2. Formal requirements of marriage................................................................................61
a) Certain age..........................................................................................................................61
b) Conubium............................................................................................................................61
c) Consent ................................................................................................................................61
4. 3. Impediments of marriage................................................................................................61
a) Status....................................................................................................................................61
b) Religious reasons.............................................................................................................. 62
c) Consanguinity.................................................................................................................... 62
d) Other impediments of marriage................................................................................... 62
4. 3. Legal effects of marriage................................................................................................ 63
4. 4. Divorce of a marriage....................................................................................................... 64
a) Reasons for divorce.......................................................................................................... 64
b) Legal ban of divorce concerning the “flamen Dialis”............................................... 64
c) Divorce as a will of both parties.................................................................................... 64
d) Unilateral divorce.............................................................................................................. 65
e) Legal consequences of divorce...................................................................................... 65
Chapter V
THE LAW OF THINGS..........................................................................................67
1. Concept........................................................................................................................................ 67
1.1. Subject of the Law of Things........................................................................................... 67
1.2. System of the Law of Things........................................................................................... 67
1.3. Actio in rem.......................................................................................................................... 68
2. The term „thing“........................................................................................................................ 68
2.1. Component of a thing....................................................................................................... 69
a) A singular thing................................................................................................................. 69
b) A compound thing........................................................................................................... 69
2.2. A collective thing............................................................................................................... 70
2.3. Accessory.............................................................................................................................. 70
2.4. Fruits....................................................................................................................................... 70
a) Natural fruits (fructus naturales)................................................................................... 71
b) Civil fruits (fructus civiles)................................................................................................ 71
2.5. Fungible and infungible things..................................................................................... 71
2.6. Mancipable and non-mancipable things................................................................... 71
2.7. Divisible and non-divisible things................................................................................. 72
2.8. Consumable and non-consumable things................................................................ 73
3. Ownership................................................................................................................................... 73
3.1. The term “ownership”....................................................................................................... 73
a) Direct dominion over the thing..................................................................................... 73
b) Exclusivity of ownership...................................................................................................74
c) Unlimitedness (universality) of ownership...................................................................74
3.2. Subject of ownership.........................................................................................................74
3.3. Object of ownership......................................................................................................... 75
3.4. Types of ownership............................................................................................................ 75
a) Ownership ex iure Quiritium.......................................................................................... 75
b) Praetorial (bonitary) ownership.................................................................................... 75
c) Provincial ownership.........................................................................................................76
c) Ownership of foreigners ..................................................................................................76
3.5. Acquisition of ownership..................................................................................................76
3.5.1. Original mode of acquisition of ownership......................................................... 77
a) Occupation......................................................................................................................... 77
b) Discovery of a treasure.................................................................................................... 78
c) Fusion .................................................................................................................................. 79
d) Commingling/commixtion.............................................................................................81
e) Mingling.............................................................................................................................. 83
f) Processing............................................................................................................................ 83
3.5.2. Derivative mode of acquisition of ownership.................................................... 85
a) Mancipation...................................................................................................................... 85
b) In iure cessio....................................................................................................................... 86
c) Delivery (tradition)............................................................................................................ 87
3.5.3. Acquisitive Prescription (Usucapio)....................................................................... 88
4. Possessio...................................................................................................................................... 89
4. 1. The term............................................................................................................................... 89
4. 2. Types of possession.......................................................................................................... 89
a) Civil possession ................................................................................................................. 90
b) Natural possession (detention)...................................................................................... 90
c) Possession in good faith.................................................................................................. 90
d) Possession in bad faith.................................................................................................... 90
e) Lawful possession..............................................................................................................91
f) Interdictal possession........................................................................................................91
4. 3. Protection of possession..................................................................................................91
4. 4. Acquirement of possession............................................................................................91
4. 5. Termination of possession............................................................................................. 92
Chapter VI
LAW OF OBLIGATIONS........................................................................................95
1. The term “obligation”.............................................................................................................. 95
2. Elements of an obligation relationship............................................................................. 95
a) Subjects............................................................................................................................... 95
b) Content................................................................................................................................ 95
c) Legal protection................................................................................................................ 96
3. Division of obligations............................................................................................................ 96
3. 1. Categories of obligations according to the reason (source) of
their creation............................................................................................................................... 96
a) Contracts............................................................................................................................. 96
b) Delicts.................................................................................................................................. 96
c) Quasi-contracts................................................................................................................. 97
d) Quasi-delicts...................................................................................................................... 98
e) Other reasons of creation of an obligation................................................................ 98
3. 2. Division of obligations according to distribution of rights and
duties between the parties..................................................................................................... 99
3. 3. Division of obligations according to participation of subjects on
part of creditor or debtor........................................................................................................ 99
a) Solidary obligations.......................................................................................................100
b) Cumulative obligations................................................................................................. 101
4. Natural obligation................................................................................................................... 101
5. Alternative obligation............................................................................................................ 101
6. Object (content) of obligation............................................................................................ 102
6. 1. Performance – the term and its elements.............................................................. 102
6. 2. Types of performance.................................................................................................... 103
a) Generic and individual performance......................................................................... 103
b) Severable and non-severable performance............................................................. 103
c) Certain and uncertain performance.......................................................................... 104
d) Alternative possibility of performance...................................................................... 104
7. Termination of obligations................................................................................................... 105
7. 1. Satisfaction......................................................................................................................... 105
7. 2. Informal release................................................................................................................ 105
7. 3. Novation and delegation.............................................................................................. 106
7. 4. Compensation.................................................................................................................. 106
7. 5. Other reasons of termination of obligation............................................................ 107
8. Liability for failure to perform the obligation............................................................... 107
8. 1. Fault..................................................................................................................................... 108
8. 2. Principle of utility............................................................................................................ 108
8. 3. Chance................................................................................................................................ 109
8. 4. Payment for damages................................................................................................... 109
9. Contractual obligations........................................................................................................ 109
9. 1. Consensual contracts......................................................................................................110
9. 1. 1. Contract of sale..........................................................................................................110
9. 1. 2. Lease.............................................................................................................................112
a) Lease of a thing (locatio conductio rei)......................................................................112
b) Contract of employment (locatio conductio operarum).......................................112
c) Contract for a work done (locatio conductio operis)...............................................112
9. 1. 3. Contract of mandate (mandatum).......................................................................113
9. 1. 4. Contract of association (societas).........................................................................114
9. 2. Real contracts.................................................................................................................115
9. 2. 1. Loan (mutuum)...........................................................................................................115
9. 2. 2. Borrowing (commodatum).....................................................................................115
9. 2. 3. Deposit.........................................................................................................................116
9. 3. Verbal contracts................................................................................................................117
9. 3. 1. Stipulation...................................................................................................................117
9. 4. Literal contracts................................................................................................................117
10. Delicts........................................................................................................................................118
10. 1. Theft (furtum)...................................................................................................................118
10. 2. Unlawful harming of somebody else’s thing (damnum iniuria datum)........119
10. 3. Fraud (dolus).................................................................................................................... 120
10. 4. Coercion (metus)............................................................................................................ 120
Matúš Nemec, Vojtech Vladár Roman Private Law
Chapter I
THE CONCEPT AND SOURCES OF ROMAN LAW
1. Law in objective meaning
In objective meaning law is a summary of standards (i.e. common binding rules of

behavior), which create specific system i.e. law order.
The components of the norm of law are:
• it defines the rule of behavior (to do something or not to do);
• its common binding (it binds all members of a certain community);
• it is established by an authorized legal authority (lawgiver in a country, com-
munity od customary law);
• its respecting is able to be enforced by judical authorities (judge, court)
Reason of binding of law is the belief of community members regarding the legally
binding of law.
Subject of law are the terms (relations between the people in the society). But the
law regulates only those terms, which are important in security of authorized interests
of community members. These terms are terms between people (community mem-
bers) each other, personal relations in the family and property relations between the
people. About this writes lawyer Ulpianus (Domitius Ulpianus, cca. 170-228 A.D) in the
Digest:
Ulp. D. 1,3,41: Ulp. D. 1,3,41:

Totum autem ius constitit aut in ad- Hence all law consists either in the
quirendo aut in conservando aut in minu- acquisition, preservation, or diminution
endo: aut enim hoc agitur, quemadmodum of right; for it has reference to the way
quid cuiusque fiat, aut quemadmodum in which anything becomes the property
quis rem vel ius suum conservet, aut quo- of a person, or how he can preserve it or
modo alienet aut admittat. his rights, or how he can alienate or lose
them.
Important characteristic feature of law norms is their normative abstractness, i.e.

that they modify behavior in an unspecified number of cases, which repeat and for not
specified recipients. About the aims of law regulating writes Celsus (Publius Iuventuis
Celsus, 67-130 A.D.) and Ulpian:
10
Cels. D. 1,3,4: Cels. D. 1,3,4:

Ex his, quae forte uno aliquo casu acci- Laws are not established concerning
dere possunt, iura non constituuntur: matters which can only happen in a sin-
gle instance.
Cels. D. 1,3,5: Cels. D. 1,3,5:
nam ad ea potius debet aptari ius, For laws ought to be adapted to
quae et frequenter et facile, quam quae events which frequently and readily oc-
perraro eveniunt. cur, rather than to such as rarely happen.
Ulp. D. 1,3,8: Ulp. D. 1,3,8:
Iura non in singulis personas, sed gen- Laws are not established for individ-
eraliter constituuntur. uals, but for general purposes.
2. Law in subjective meaning
In subjective meaning law is read as authorization, admitted by the body of laws,

which to an authorized results from a norm of objective law and which can he bring
into effect by his own mind. Subjective law at the same time also defines range of his
power, so the individual rights of other members of the community would be not
broken.
3. Sources of Roman law
Under the concept of law source it is needed to differentiate source in an material

form and in an formal form. In material form the source of law is the community as
corpus with all the phenomenon, which affect the content of law norms. (morale, tra-
ditions, religion, economic phenomenon)
Formal sources of law are the acts of the lawgiver, with which he expresses his will
to regulate normative behavior of the community members. Formal law sources are
also the direct reason of existence of the law (law norms). Only in them can recipients
find their subjective authorizations and subjective duties.
Forms, in which lawgiver introduces formal law sources are different and depend
on quantity of cirstumstances, but basic two forms are:
• written law (ius scriptum), in actual meaning normative law acts;
• unwritten law, i.e. custom (ius non scriptum), that is normative behavior of com-
munity of customary law.
About customary law writes lawyer Julianus (Salvus Julian, cca 110-170 A. D.) and
Hermogenian (Aurelius Hermogenianus, turning point of the 3rd and 4th century):
11
Jul. D. 1,3,32,pr.: Jul. D. 1,3,32, pr.:

De quibus causis scriptis legibus non In cases where there are no written
utimur, id custodiri oportet, quod moribus laws, that should be observed which has
et consuetudine inductum est: et si qua in been established by usage and custom,
re hoc deficeret, tunc quod proximum et and if anything is lacking therein, then
consequens ei est: si nec id quidem appar- whatever is nearest to, and resulting
eat, tunc ius, quo urbs Roma utitur, servari from it should be observed; and if even
oportet. this does not exist, then the law which
is used by the City of Rome must be fol-
lowed.
Hermog. D. 1,3,35: Hermog. D. 1,3,35:
Sed et ea, quae longa consuetudine Those rules which have been ap-
comprobata sunt ac per annos plurimos proved by long established custom and
observata, velut tacita civium conventio have been observed for many years, by,
non minus quam ea quae scripta sunt iura as it were, a tacit agreement of citizens,
servantur. are no less to be obeyed than laws which
have been committed to writing.
Components of Customary law, which is one of the oldest form of the Roman law
are, that it is a rule of conduct with a steady content, which is held for a long time with
belief about its legal binding. By completing these components a custom becomes a
law rule and a law source.
3.1. Types of sources of Roman law
About individual sources of creation of law introduces lawyer Gaius (cca 110-179
A.D) in his Institutes:
Gai. Inst. 1, 2: Institutes of Gaius 1, 2:

Constant autem iura populi Romani ex The civil law of the Roman people
legibus, plebiscitis, senatus consultis, con- consists of laws, plebiscites, decrees of
stitutionibus principum, edictis eorum, qui the Senate, constitutions of the princeps,
ius edicendi habent, responsis prudentium. the edicts of those who have the right to
promulgate them, and the opinions of
jurists.
In the Roman state belonged to the formal sources of law:

a) laws (leges) - decisions of wise men, accepted common (D. 1,3,1);
b) plebiscites or decisions of plebs (plebiscita) – decisions of comitia of populus;
c) decrees of the Senate (senatusconsulta) – primarily Senate had only an advisory
role, later his decisions were generally bind as normative acts;
d) edicts of magistrates (edicta magistratum) – binding year programs of consis-
tor´s actions, containing decrees related with the administration, justiciary (list
of provided facilities of processual security)
12
e) jurisprudence (jurisprudentia) – answers of lawyers belongs to the most signifi-

cant sources of law in the age of classic law; lawyer´s work was:
• to actionare (agere) – to help participants of proceeding with conceiving
suing formulas;
• to protect (cavere) – to help with making contracts and with generally legal
proceedings;
• to write (scribere) – introduces the literature activity of lawyers (writing of
special books);
• to delivery opinions (respondere) – for the purpose of the correct applica-
tion of law lawyers were delivering opinions (advisory opinions) in individ-
ual cases (especially interpretations in case of doubt); emperor Augustus
commanded, that law experts should publish opinions under authority of
his allowance, e.ei. authority of Caesar (ex autoritate principis). In this way
was constituted the law to provide opinions. This opinion was bound to
serve and also to solve the case with similar factual features in the future.
Lawyer Pomponius writes about the opinions in Digest:
13
Pomp. D. 1,2,2,49: Pomp. D. 1,2,2,49:

Et, ut obiter sciamus, ante tempora It may be observed in passing that
Augusti publice respondendi ius non a before the days of Augustus the right of
principibus dabatur, sed qui fiduciam stu- delivering opinions in the public interest
diorum suorum habebant, consulentibus was not granted by the head of the state,
respondebant: neque responsa utique but any persons who felt confidence in
signata dabant, sed plerumque iudicibus their own learning gave answers to such
ipsi scribebant, aut testabantur qui illos as consulted them; moreover they did
consulebant. Primus divus Augustus, ut not always give their answers under seal;
maior iuris auctoritas haberetur, constituit, they very often wrote to the judge them-
ut ex auctoritate eius responderent: et ex selves, or called upon those who consult-
illo tempore peti hoc pro beneficio coepit. ed them to testify to the opinions they
Et ideo optimus princeps Hadrianus, cum gave. The Divine Augustus was the first
ab eo viri praetorii peterent, ut sibi liceret to lay down, in order to ensure greater
respondere, rescripsit eis hoc non peti, sed authority to the law, that the jurisconsult
praestari solere et ideo, si quis fiduciam sui might deliver his answer in pursuance of
haberet, delectari se populo ad responden- an authorization given by himself; and
dum se praepararet. from that time such an authorization
was asked for as a favour. It was in conse-
quence of this that our excellent Emper-
or Hadrian, on receiving a request from
some lawyers of praetorian rank for leave
to give legal opinions, answered the ap-
plicants that this privilege was not usu-
ally asked for but granted [or that there
was no leave asked for this practice, it
was simply carried out], consequently, if
any one were confident of his powers, he
(the Emperor) would be much pleased to
find that he took steps to qualify himself
for delivering opinions to the citizens.
Into the system of sources we can also include the norms of customary law. But
the norms of customary law (customary law was the basis of the Law of Twelve Tables)
gradually declined and its importance in the post-classical period of the Roman law,
i. e. in the absolute monarchy (dominate) becomes the only form of the source of law
(lex generalis).
3. 2. Justinian´s codification
The emperor of the Byzantine empire (East Roman Empire) Justinian I. tried to res-
urrect the authority of the former Roman empire.
Justinian appointed the commission led by Tribonian, succesful lawyer from Con-
stantinople, as a chief editor to collect Roman law from earlier period and to arranged
it into the system. The original norms, however, could be adapted to the requirements
14
of time (this process is called interpolation and modified texts as interpolated). The
collection originally had the name tria volumina (three volumes). Its fame, however,
became with the name Corpus Juris Civilis (Body of Civil Law) – this name shall be as-
sumed in the 12th century, after the resurrection of Roman law and its study at medi-
eval universities (especially in Bologna), and with the contribution of the Church and
especially of the Pope‘s in 12th and 13 century. The parts of the Codification were pub-
lished in stage and it contains of these parts:
a) Justinian´s code
Justinian`s code contains the edicts of Roman emperors from the beginning of
the 6th century, which were published in the Hermogenian`s Code (collection of con-
stitutions of the Roman emperors mostly from the years 293–294 A. D.), Gregorian`s
Code (collection of constitutions of Roman emperors over a century and a half from
the 130`s to 290`s A. D.) and in the Theodosian Code (compilation of the Roman law
published under the christian emperors since the year 312 A. D.).
b) The Digest
The Digest (or Pandecta) is the collection of the classical Roman jurisprudence. It
contains fragments from the books of classical lawyers (Gaius, Celsus, Julianus, Ulpi-
anus, Pomponius, Modestinus, Papinianus, Javolenus and others). The Digest is divid-
ed as follows: books (libri) – title (tituli) – law (leges) – paragraphs (sectiones). In the be-
ginning of every fragment is the name of lawyer, than the position data in The Digest
and in the end is the name of the work, from which is given fragment (e. g.: Paulus,
D. 12,5,1,1 on Sabinus). The Digest is structured to fifty books and was published in 533
by the constitution Deo auctore („With God`s help“).
c) Institutes of Justinian
A textbook for young students of law base on the Institutes of Gaius, took name
Institutes (Institutiones seu Elementa). This parto of Justinian`s codification were uused
at the law schools in the Constantinople and Beirut. The Institutes were published in
533. After the Justinian`s death they ceased to use until the time of reception of Roman
studies in the 12th century.
15
Chapter II
THE DIVISION OF ROMAN LAW
1. Public Law
1. 1. Public Law – the concept
The division of law to the public and private is situated in the first book of Digest,
whose author is lawyer Ulpianus:
Ulp. D. 1,1,1,2: Ulp. D. 1,1,1,2:

Huius studii duae sunt positiones, pub- Of this subject there are two divisions,
licum et privatum. Publicum ius est quod public and private law. Public law is that
ad statum rei Romanae spectat, privatum which has reference to the administra-
quod ad singulorum utilitatem: sunt enim tion of the Roman government; private
quaedam publice utilia, quaedam priva- law is that which concerns the interests
tim. Publicum ius in sacris, in sacerdoti- of individuals; for there are some things
bus, in magistratibus constitit. Privatum which are useful to the public, and oth-
ius tripertitum est: collectum etenim est ers which are of benefit to private per-
ex naturalibus praeceptis aut gentium aut sons. Public law has reference to sacred
civilibus. ceremonies, and to the duties of priests
and magistrates. Private law is threefold
in its nature, for it is derived either from
natural precepts, from those of nations,
or from those of the Civil Law.
The field of public law is characterized by state, or by other public interest. Into the
field of public (all-society) interest belongs primarly internal and external security of
the state and anti-crime protection of the citizens. To the public interest also comes
under chain of reclaimability of subjective rights and duties at the court and function
of state administration. In the Roman state existed, moreover, as a special public inter-
est, religious worship.
16
1. 2. Branches of Roman public law
In light of contemporary understanding of the fields of law we can divide Roman

law into the next branches (which are the social interests protected by law order):
• constitutional law; this branch of law regulates the structure of legislative insti-
tutions, government and justiciary, relations between them and their powers;
• administrative law; this branch of law regulates the executive power of magis-
trates and other officials of the state and power of the municipal institutions;
• penal law; this branch of law takes up the bodies of the public offences – crimes
(crimina publica) and establishes the rules of procedure in punishing the of-
fenders;
With regard to the fact that the law order is a unity, it does not exists any exact
boundary between the field of public law and private law. These two areas of law
sometimes overlap each other – e. g. in the branch of law, that is - considering to the
character of the protected interest - private, it is possible to find norms, regulating
social relations with public aspect for the purpose of public interest and certainty (e. g.
testamentary capacity).
1. 3. Attributes of public law
Important attributes (characteristics) of the norms falling into the field of public
law and distinguishing them from the norms regulating private legal relations are as
follows:
a) The precedence of all-society interest
The stability of the state, which is the protector of public interests requires to guar-
antee them a priority to the interests of private persons (individual interests).
b) The coercive character of the norms of public law
Public law relations are not based upon the contractual principle, whereupon they
don `t rise from the legal acts (i. e. as an expression of animus of private persons); the
norms of public law have imperative (mandatory) character as a ius cogens and they
represents a will of legislative authority of the State, enforcing loyalty with regard to
the public security, relation to the state executing authorities and obligations concern-
ing state aims (i. e. paying taxes);
As a consequence of that, norms of public law, asi it expresses Papinianus (Aemil-
ius Papinianus, 142-212 A.D.), cannot be changed by the contracts of private persons,
because they consistently protects all-society interests first of all.
17
Pap. D. 2,14,38: Pap. D. 2,14,38:

Ius publicum privatorum pactis mutari Public law cannot be changed by the
non potest. contracts of private persons.
c) Subordination of subjects of public law relationship
In the public law, the state or another public authority, in the relationship to every-
one, is in the position of superiority and it applies its enactive competences to require
fulfilling obligations under the rules of public law; in this hierarchical relationship has
the state (public) authority competence and the subordinate subject has to fulfill its
legal duties.
d) Strict interpretation of the norms of public law
The norms in the public law have to be in the case of dubiousness concerning
fact (dubium facti) or law (dubium iuris) interpretated strictly or restrictively. This rule
requires to find a reason of the norm with regard to the common sense of the words,
that are used in the norm, in order to get legal certainty (i. e.in the penal law in order
to eliminate spreading of the subject mater of the crime). If the character of the con-
crete case requires it, the dubious norm have to be interpretated restrictively (under
the limit of common sense) in order to coarctation of the sphere of action of the norm.
In connection with this principle comes to the fore another principle, applying in
the praxis of public authorities in the field of public law. It implies that these authori-
ties can practise only that, what the law order allows them. This is because the public
authorities as representatives of the State do not show their own (private) will, but the
will (ideas) of the legislator (lawmaker). These ideas are expressed in the content of the
norms of public law (constitutional, administrative and penal law).
e) Prohibition of analogia
If the authority with power to application the law finds, that the law does not pro-
vide an existing social relationship, it cannot proceed by analogia, with regard to the
principle of legal certainty.
That means, in this case the legal authority cannot applicate the norm, regulating
similar social relationship - e. g. in the field of penal law it cannot subsume the act,
which has become, but it is not a criminal offence, under the the subject mater of
that criminal offence, which has some characteristics of similar, but another criminal
offence, regulated and punished by the norms of penal law.
f) Public relationship is not subject to judicial jurisdiction
Social relations regulated by the norms of public law are not subject to judicial
18
jurisdiction. The content of these relations does not consists of rights and obligations,
but it consists of competences of legal authorities to order and to exact fulfilling ob-
ligations under the rules of law. These obligations are exacted in the administrative
procedure by the administrative authorities of the State or another public institutions
(municipalities).
2. Private law
2. 1. The Concept
Initially, in the Roman law was the most important criterion for difference between
the private and public law the existence and character of causa in the concrete rela-
tionship. Private physical or juridical persons satisfie in the social relations only their
own private needs (interests) by means of juridical acts. The juridical acts were the
essential criterion for the advisement, that the social tie (relation) belongs the field of
private law.
By means of juridical acts private persons realizes their subjective rights, result-
ing from the norms of objective law. Law order in this respect provides to the private
persons ambit of latitudes in their relationships, in order to be able to hold their own
property and family interests a way they think is the best for them.
The State - its legislative authority - created in these kinds of relations only minimal
framework by means of some mandatory norms (ius cogens), which are be to respect-
ed in the realisation of subjective rights. This category of Roman law, also used in the
contemporary law, is called „private autonomy“.
The basis of private autonomy consists of norms, providing opportunities for sub-
jects to applicate their own regulation, differently from the regulation in the law order
(e.g. in the civil code). This kind of norms is called dispositive (ius dispositivum).
The trend in development of the Roman law brought into the foreground an idea,
that the essential criterion distinguishing the field of private and public law is utility or
interest (utilitas) - individual or all-society (public).
2. 2. The characters of private law and its norms
Like the norms of public law as well as private relationships have their characters or
attributes, that differ them from the norms of public law.
a) Protection of the private interests
The lawgiver by means of the norms of private law provides to private persons pos-
sibilities to satisfy their needs and interests, which are distinguished and necessary for
them. In order to have private persons (as the subjects, entities of law) possibility, not
an obligation, to use the rights, resulting from the norms of law order (objective law).
19
Exercising these subjective rights the state power regulates only those wherewithal
suppositions, that are important in order to guarantee legal certainty in rights and
obligations as a content of existing legal relations. This aim is achieved by establishing
the essential components of the juridical act (essentialia negotii) as an unconditional
content of juridical act.
b) Dispositive norms
The lawgiver establishes the rules of conduct contained in the norms of private law
as dispositive, so the subjects (private persons) may choose to modify their own rela-
tionship differently than these aspects are established in the norms of objective law. It
is application of th rule that the norms of private law can be changed (modified) by the
contracts of private persons. Stricto sensu it does not mean, that the subjects change
the law (they are not in the position of lawgiver an they have not its competence). The
reason of this rule is, that if they do not want to add any other content in their contract,
which is different from the norm in the law code, it will be valid the norm of the law
code as a natural part (naturalia negotii) of juridical act with regard to their contract.
Subjects may also include into their relationship other provisions as supplementa-
ry elements (accidentalia negotii) and these provisions will be in effect as a inseparable
components of their contract. The same holds about the realisation of the unilateral
juridical acts (e.g. testament as a last will of testator).
c) Equal position of the subjects of the relationship
The parties of the private law relationship have for the recovery of their rights and
obligations equal position with regard to the protection of these rightis (claims) in the
litigation.
d) Extensive interpretation of the private law norms
If there are factual or juridical doubts about the sense of the norm of law (strictly
about the used words) concerning individual rights and obligation and their content,
scope and importance, it is allowable (i fit is appropriate) to apply an extensive inter-
pretation of these norms.
In this way of interpretation the content, scope and importance of rights are
changed and using this method, interpretation of the doubtful word (words) follows
up to the maximal limit of the common sense of the (doubtful) word in the norm. Fur-
thermore, using wide-spred interpretation, the sense of the word follows up beyond
the limit of the word (or words) in the norm and (in the larger context, sense) it takes
a new meaning. However, the interpretation of the norms of law have to be done with
regard to its sense and to the will of the lawgiver. Celsus writes about it in Digest:
20
Cels. D. 1,3,17: Cels. D. 1,3,17:

Scire leges non hoc est verba earum te- To know the laws is not to be famil-
nere, sed vim ac potestatem. iar with their phraseology, but with their
force and effect.
D. 1,3,18: D. 1,3,18:
Benignius leges interpretandae sunt, Laws should be interpreted liberally,
quo voluntas earum conservetur. in order that their intention may be pre-
served.
D. 1,3,19: D. 1,3,19:
In ambiqua voce legis ea potius accipi- When the terms of the law are am-
enda est significatio, quae vitio caret, prae- biguous, that meaning is to be accepted
sertim cum etiam voluntas legis ex hoc col- which is without incongruity; especially
ligi possit. when the intention of the law can be as-
certained therefrom.
e) Analogia (analogy) in private law
If in the process of application in the field of privte law the authority detected
a „gap in law“ (lacuna iuris or vacuum iuris), he authority with competence to apply is
able to serach another valid norm of law, which regulates similar situation (social rela-
tion) and apply it to the existing situation (legal relationship), which is to be decided.
Using analogia it should be exercised cautiously in order to eliminate inappropriate
norms in the proce of application. There also have to be a certainty concerning the
intention and purpose of the norm. Analogia requires following succession:
• analogia of law (analogia legis); this level of analogia uses similar laws;
• analogia of law order (analogia iuris); this level of analogia uses common rules
of private law (also from Roman law);
The lawyer Julianus submits this opinion concerning analogia and its application
in the law:
Jul. D. 1,3,12: Jul. D. 1,3,12:

Non possunt omnes articuli singillatim All matters cannot be specifically in-
aut legibus aut senatus consultis compre- cluded in the laws or decrees of the Sen-
hendi: sed cum in aliqua causa sententia ate; but where their sense is clear in any
eorum manifesta est, is qui iurisdictioni instance, he who has jurisdiction of the
praeest ad simila proceder atque ita ius same can apply it to others that are simi-
dicere debet. lar, and in this way administer justice.
The most important form of using analogia in Roman civil law are praetorian ac-
tions, so called actiones utiles. These actions are extension of an existing actions (ac-
tiones civiles) on the basis of utility (utilitas). In the strict sense this action was proba-
bly only one type of actions, which were given by praetor (actiones honorariae) in the
cases, that have been not protected by the civil law. Proceeding using the method per
analogiam is also - in larger sense - when the praetor provided the exceptio, based on
21
his jurisdiction, not in the norms of the civil law.
f) Private relationships are subject to the judicial power (jurisdiction)
In contrast to the public law relations are the private law relations subject to the
judicial power. Private persons are able to put an action in faciae curiae in order to
recover their individual (subjective) rights. That means, the judge (iudex) - in Roman
law as a private (and virtuous) man (arbiter boni viri) - has competence to decide the
controversy concerning subjective rights.
2. 3. Branches of private law
The Roman law concept of the structuring of law we cannot define the branches
(sectors) of the private law asi it is possible in the modern age. The only component
binding our view with the concept of Roman law is, that in the branch of Roman pri-
vate law belonged actually all those social relationships, which still refers to the con-
temporary civil law. Moreover, we can conclude taht in the branch of Roman private
law belonged also labor relations, i. e. relationships between employee and employer
with regard to their individual private interests, in Roman law named „hire of services“
(locatio conductio operarum).
At present, labor relations are regulated also by the imperative (mandatory) norms.
This fact is construed as a public interest protecting with lawgimer with regard to the
special interests, e. g. some categories of employees (women, especially pregnant
women, handicaped persons, non-adults persons) and special labor conditions (max-
imal length of working time, safety and protection of helath in work). Civil law also
includes norms regulating relationships between merachants (in modern sense) and
relations in the family as a juridical bond between pater familias as a head of family and
other members of the family.
From this point of view we can divide Roman private law into these branches (cat-
egories of social relationships):
• civil law; there are norms regulating the relations between private persons,
physical and juridical (apart from bussiness relations) with regard to their own
property and family interests;
• bussiness (merchant, commercial) law; there are norms, regulating relation be-
tween private persons with regard to the merchant; this category stricto sensu
is not a special branch of private law;
From the other point of view we can divide Roman private law and its norms into
the following categories, concerning the reason (causa) of their creation, validity and
effectuality:
• civil law (ius civile),
• praetorian or honorary law (ius praetorium, ius honorarium),
• law of nations (ius gentium),
• natural law (ius naturale).
22
This division of the law is described by lawyer Ulpianus in the following fragment:
Ulp. D. 1,1,1,3: Ulp. D. 1,1,1,3:

Ius naturale est, quod natura omnia Natural law is that which nature
animalia docuit: nam ius istud non humani teaches to all animals, for this law is not
generis proprium, sed omnium animalium, peculiar to the human race, but affects
quae in terra, quae in mari nascuntur, avi- all creatures which deduce their origin
um quoque commune est. Hinc descendit from the sea or the land, and it is also
maris atque feminae coniunctio, quam nos common to birds. From it proceeds the
matrimonium appellamus, hinc liberorum union of male and female which we des-
procreatio, hinc educatio: videmus etenim ignate as marriage; hence also arises the
cetera quoque animalia, feras etiam istius procreation of children and the bringing
iuris peritia censeri. up of the same; for we see that all ani-
mals, and even wild beasts, appear to be
acquainted with this law.
D. 1,1,1,4: D. 1,1,1,4:
Ius gentium est, quo gentes humanae The Law of Nations is that used by the
utuntur. Quod a naturali recedere facile in- human race, and it is easy to understand
tellegere licet, quia illud omnibus animali- that it differs from natural law, for the
bus, hoc solis hominibus inter se commune reason that me latter is common to all
sit. animals, while the former only concerns
men in their relations to one another.
With regard to these categories of the laws of norms lawyer Paulus (Julius Paulus,
turn of the 2nd and the 3rd century) submits the various meanings of the term „law“:
Paul. D. 1,1,11: Paul. D. 1,1,11:

Ius pluribus modis dicitur: uno modo, The term „law“ is used in several
cum id quod semper aequum ac bonum ways. First, whatever is just and good is
est ius dicitur, ut est ius naturale. Alte- called law, as is the case with natural law.
ro modo, quod omnibus aut pluribus in Second, where anything is useful to all
quaque civitate utile est, ut est ius civile. or to the majority in any state, as for in-
Nec minus ius recte appellatur in civitate stance the Civil Law. Nor is honorary law
nostra ius honorarium. Praetor quoque ius less justly so designated in Our State, and
reddere dicitur etiam cum inique decernit, the Praetor also is said to administer the
relatione scilicet facta non ad id quod ita law even when he decides unjustly; for
praetor fecit, sed ad illud quod praetorem the term has reference not to what the
facere convenit. Praetor actually does, but to that which
it is suitable for him to do.
a) Civil law (ius civile)
The ancient Roman law has been going in the application of the law from the prin-
ciple of personality. The essence of this principle is based on the idea – still valid in
the law theory - that the rules (norms) of law bind only the citizens, wherever they are.
23
Another pinciple, using in the modern age, means, that the law order is applied only
at the territory of the concrete state - in principle to all people, that are located within
the territory of the (concrete) state, i. e. the citizens (cives) and the foreigners (peregrini).
Ancient Roman law regulated these social relationships, which came into being
(existed) only among the Romans (Roman citizens). The sources of Roman civil law
were:
• laws (leges),
• decrees (enactments) of the Senate (senatusconsulta),
• enactments of the Plebeian councils (plebiscita),
• customs (consuetudinem),
• edicts of the magistrates (edicta magistratuum),
• jurisprudence (jurisprudentia),
• imperial constitutions, or edicts of the emperors (constitutiones principum).
Ulpianus defined (D. 1,1,6,1) civil law as a system of norms, which are written - laws
published by lawgiver (ius scriptum) - or which are unwritten (customs as rules of abear-
ance, resulting from the long-term usage in the society as a kind of tacit consens con-
nected with the recognition of this rule with force of effectuality. The various sources
of law are mentioned by Papinianus:
Pap. D. 1,1,7, pr.: Pap. D. 1,1,7, pr.:

Ius autem civile est, quod ex legibus, Ius autem civile est, quod ex legibus,
plebis scitis, senatus consultis, decretis prin- plebis scitis, senatus consultis, decretis
cipum, auctoritate prudentium venit. principum, auctoritate prudentium venit.
After the year 212 A. D. (in this year emperor Caracalla granted the right to a Roman
citizenship to all inhabitants in the Roman empire) Roman law had to be applicated
also in the provinces of Roman empire, but their inhabitants did not want to applicate
the Roman rules in their own relationships. So in the each province was, in principle,
still applicated its own law (rules). The Roman lawyers solved this situation in the prac-
tice of application of law using the law of province as a customary law with the effects
in the Roman civil law.
b) Pretorian or honorary law (ius honorarium)
In order to more flexibility of the traditional Roman civil law, to overcoming the
principle of personality, to mitigate excessive rigidity of Roman civil law and in the
interest of equity in the legal relationships, the magistrates (administrative authorities)
used to applicate their enactory competence in the field of judicial affairs (ius edicendi)
to publish edicts in written form (edictum) or in the oral form (coram). This fact is men-
tione by Pomponius and this lawyer also writes, why the office of praetor urbanus has
been constituted:
24
Pomp. D. 1,2,2,10: Pomp. D. 1,2,2,10:

Eodem tempore et magistratus iura At the same time there was also mag-
reddebant et ut scirent cives, quod ius de istrates who dispensed justice, and in or-
quaque re quisque dicturus esset seque der that the citizens might know what
praemuniret „praemunirent“, edicta pro- law was to be applied in any matter and
ponebant. Quae edicta praetorum ius hon- defend themselves accordingly, they
orarium constituerunt: honorarium dicitur, proposed edicts, which Edicts of the
quod ab honore praetoris venerat. Praetors constituted the honorary law. It
is styled honorary, because it originated
from the office of the Praetor.
D. 1,2,2,27: D. 1,2,2,27:
Cumque consules avocarentur bellis And as the consuls were called away
finitimis neque esset qui in civitate ius red- by distant wars, and there was no one
dere posset, factum est, ut praetor quoque who could dispense justice in the State,
crearetur, qui urbanus appellatus est, quod it happened that a Praetor also was cre-
in urbe ius redderet. ated, who was styled „Urbanus“, because
he dispensed justice in the city.
In the field of private law had this competence another state administrative au-
thorities (magistrates):
• urban praetor (praetor urbanus),
• foriegn praetor (praetor peregrinus),
• curul aedil (aedile curul) and questor of the province of the Roman people (not
in the provinces of Emperor!),
• governor of the province,
• quaestor financial.
Among these authorities had most important function magistrates named prae-
tors, in particular praetor urbanus. This magistrate had only administrative competence
in judicial affairs, but he could de facto create law through an Edict (praetorian edict),
which he published in the beginning of term of office, containing various institutes of
law (e. g. exceptio, restitutio in integrum, actiones utiles) and this was the way to modif-
icate law order. These institutes as a result of praetor`s activity (ius praetorium) were,
with regard to praetor`s competence (jurisdiction) capable to make rigid civil private
law (ius civile) more flexible and equitable. Papinianus expressed this fact in the follow-
ing fragment:
Pap. D. 1,1,7,1: Pap. D. 1,1,7,1:

Ius praetorium est, quod praetores in- The Praetorian Law is that which
troduxerunt adiuvandi vel supplendi vel the Praetors introduced for the purpose
corrigendi iuris civilis gratia propter utili- of aiding, supplementing, or correct-
tatem publicam. Quod et honorarium dici- ing the Civil Law for the public interest;
tur ad honorem praetorum sic nominatum. which is also designated honorary law,
being so called after the „honor“ of the
Praetors.
25
Besides the above-mentioned special competences, praetor had ordinary compe-

tence to publish following acts:
• iudicium dare, i. e. praetor´s competence to grant an action or to reject an ac-
tion (denegatio actionis);
• iudicare iubere, i. e. praetor´s order to the private judge to pass judgment ac-
cording to the terms of the written formula of action (iussum iudicandi);
• publishing common procedural acts to guarantee individual rights in the liti-
gation;
• iurisdictio voluntaria, i. e. the intervention of praetor in cases in which there is
no quarrel between the parties and the ficticious trial serves only as a way of
performing certain juridical acts or transactions (in iure cessio, adoptio, manu-
missio);
c) Law of nations (ius gentium)
Primarly in the commercial (trade) relations between the Roman citizens and for-
eigners have been seen negative effects concerning the application of the principle
of personality – conflict of Roman law (ius civile) and the law of foreigner subject in
concrete relationship. That is to say, if the foreigner had not a Roman individula right
named ius commercii (right to trade), he was expelled from the trade relations (make
contracts) with Roman citzens.
To solve this problem, which was an impediment in the development of trade re-
lations between the Romans and foreigners, was established in the half of the third
century a new public office (authority), called praetor peregrinus, with competence to
arbitrate causes, which arised on the territory of the Roman empire and had these
parties:
• Roman citizen and foreigner,
• two foreigners (mutually).
This event is mentioned by lawyer Pomponius:
Pomp. D. 1,2,2,28: Pomp. D. 1,2,2,28:

Post aliquot deinde annos non suffi- Then, after some years, this Praetor,
ciente eo praetore, quod multa turba etiam not being found sufficient because of
peregrinorum in civitatem veniret, creatus the great crowd of foreigners who came
est et alius praetor, qui peregrinus appella- into the city, another Praetor called „Per-
tus est ab eo, quod plerumque inter pere- egrinus“ was appointed, for the reason
grinos ius dicebat. that he usually dispensed justice among
foreigners.
These relationships – with an „alien element“ (which was the foreigner) containg
civil and commercial (trade) matter praetor peregrinus arbitrated in principle free (from
Roman civil law) – in that sense, that he was not bound by the norms of Roman ius
civile and with regard to his jurisdiction (competence) he could apply at the lis (con-
troverse) with above mentioned parties the rules, that he considered as appropriate in
26
order to decide (arbitrate) their controversy. In the practice of application at the court
of praetor peregrinus have been gradually established new rules (norms), indicated by
Roman lawyers with a term ius gentium. These norms were characterized by Roman
lawyers as a law common to all men (nations) an which resulted from natural reason
(naturalis ratio), as Gaius wrote in the Digest:
Gaius D. 1,1,9: Gaius D. 1,1,9:

Omnes populi, qui legibus et mori- All nations who are ruled by law and
bus reguntur, partim suo proprio, partim customs make use partly of their own
communi omnium hominum iure utun- law, and partly of that which is common
tur ... quod vero naturalis ratio inter omnes to all men. ... But whatever natural reason
homines constituit, id apud omnes per- has established among all men is equal-
aeque custoditur vocaturque ius gentium, ly observed by all mankind, and is called
quasi quo iure omnes gentes utuntur. the Law of Nations, because it is the law
which all nations employ.
The law of nations was created primarly using customary law, the elements of Ro-
man civil law and also using the elements of law of foreigner (which was the part of
concrete relationship). Law of nations is characterized, in contrary to Roman civil law,
by informality and flexibilty – these qualities were given to it by praetor peregrinus (his
competence) and they also conduced to applicate the law of nations in the relation-
ships between the Roman citizens mutually.
Through the rules of the court of praetor peregrinus was gradually broken the
principle of personality and this was the start point in the practice of application the
new principle (criterion) – principle of teritoriality.
Ulpian submitted the nature of the law of nations:
27
Ulp. D. 1,1,1,4: Ulp. D. 1,1,1,4:

Ius gentium est, quo gentes humanae The Law of Nations is that used by the
utuntur. Quod a naturali recedere facile in- human race, and it is easy to understand
tellegere licet, quia illud omnibus animali- that it differs from natural law, for the
bus, hoc solis hominibus inter se commune reason that me latter is common to all
sit. animals, while the former only concerns
men in their relations to one another:
D. 1,1,4: D. 1,1,4:
Manumissiones quoque iuris gentium Manumissions also, are part of the
sunt. ... Quae res a iure gentium originem Law of Nations ... This takes its origin
sumpsit, utpote cum iure naturali omnes from the Law of Nations; since, according
liberi nascerentur nec esset nota manu- to natural law all persons were born free,
missio, cum servitus esset incognita: sed and manumission was not known, as
posteaquam iure gentium servitus invasit, slavery itself was unknown; but after slav-
secutum est beneficium manumissionis. ery was admitted by the Law of Nations,
Et cum uno naturali nomine homines ap- the benefit of manumission followed,
pellaremur, iure gentium tria genera esse and while men were designated by one
coeperunt: liberi et his contrarium servi et natural name there arose three different
tertium genus liberti, id est hi qui desierant kinds under the Law of Nations, that is to
esse servi. say freemen, and, in distinction to them,
slaves, and as a third class, freedmen, or
those who had ceased to be slaves.
But the differences between the civil law and the law of nations lost their func-
tion and importance when the new forms of law (imperial constitution; constitutio
principis) - with regard to the new and major position of the Emperor – did not make
differences between the Roman citizens and foreigners. With regard to this fact, the
number of foreigners in the Roman empire decreased, especially from the year 212
A.D., when Emperor Caracalla published Constitutio Antoniana, which guaranteed to
everyone in Roman empire an individual right to be a citizen of Roman state (imperi-
um). In the time of government of Justinian I were in practice all habitants of Roman
empire its citizens.
In the following fragment the lawyer Hermogenianus, indicates the institutes of
property law, which appeared as a result of the practice at the court of praetor peregri-
nus:
Hermog. D. 1,1,5: Hermog. D. 1,1,5:

Ex hoc iure gentium introducta bella, By this Law of Nations wars were in-
discretae gentes, regna condita, domin- troduced; races were distinguished; king-
ia distincta, agris termini positi, aedificia doms founded; rights of property ascer-
collocata, commercium, emptiones ven- tained; boundaries of land established;
ditiones, locationes conductiones, obliga- buildings constructed; commerce, pur-
tiones institutae: exceptis quibusdam quae chases, sales, leases, rents, obligations
iure civili introductae sunt. created, such being excepted as were
introduced by the Civil Law.
28
Law of nations (ius gentium) as a law common to all men (nations) may not be
understood in contemporary sense as a special branch of law, which is called public
international law, regulating the relations between the sovereign states and which is
characterized by contractual nature. Ius gentium was created by the public authori-
ty of Roman state – praetor peregrinus. The range of relationships, regulating by this
specific system is closer (but it is not the same!) to another field of law, called private
international law. The sources of Roman law of nations existed in following forms:
• edicts of praetor peregrinus (edicta) - as an analogia to edicts of praetor urbanus,
• decisions of praetor peregrinus in individual cases (decreta),
• quasi-international treaties (foedera pacis).
d) Natural law (ius naturale)
The concept of natural law had not in the Roman concept of law clearly and certain
place. Even though, that the Roman lawyers mentioned this term in the sources, it is
probably as a result of influcence of greek philosophy, which Cicero put into the Ro-
man society. Cicero in his work De re publica (Treatise On The Commonwealth) summa-
rized the basic idea of ancient philosophical thought. Cicero construed, or perceived,
natural law as a real rational law, which is immutable and eternal, as it is indicated in
above mentioned work:
Cicero, De Re Publica III, 33: Cicero, Treatise On The Common-

Est quidem vera lex recta ratio natu- wealth, III, 33:
rae congruens, diffusa in omnes, constans, There is a certain true law, right rea-
sempiterna ... nec vero aut per senatum son, congruent with nature, poured out
aut per populum solvi hac lege possu- onto everyone, constant, eternal ... and
mus ... nec erit alia lex Romae, alia Athenis, in truth we are not able to be released
alia nunc, alia posthac, sed et omnes gen- from this law by the Senate or by the
tes et omni tempore una lex et sempiterna people ... nor will there be one law in
et immutabilis continebit ... Rome, another in Athens, another now,
another in the future, but one law eter-
nal and immutable will bind together all
nations at all times ...
Lawyer Gaius identified ius gentium with ius naturale. According to another lawyer,
Ulpianus, it exists difference between the law of nations and natural law - norms of
the law of nations regulates only the relations concerning people, but the natural law
is common to all creatures (beings), i. e. men, animals and birds. In the Digest is men-
tioned by Ulpian the following definition of natural law:
29
Ulp. D. 1,1,1,3: Ulp. D. 1,1,1,3:

Ius naturale est, quod natura omnia Natural law is that which nature
animalia docuit: nam ius istud non humani teaches to all animals, for this law is not
generis proprium, sed omnium animalium, peculiar to the human race, but affects
quae in terra, quae in mari nascuntur, avi- all creatures which deduce their origin
um quoque commune est. Hinc descendit from the sea or the land, and it is also
maris atque feminae coniunctio, quam nos common to birds. From it proceeds the
matrimonium appellamus, hinc liberorum union of male and female which we des-
procreatio, hinc educatio: videmus etenim ignate as marriage; hence also arises the
cetera quoque animalia, feras etiam istius procreation of children and the bringing
iuris peritia censeri. up of the same; for we see that all ani-
mals, and even wild beasts, appear to be
acquainted with this law.
Although the lawyers expressed very often along the lines of natural law, it cannot
be certainly said, that it would be in the qualitatively same position as Roman civil law
(in contemporary sense the positive law). Natural law represented a rather basic start-
ing point, which was in principle, with regard to the civil law, something like a super-
temporal category, that can be regarded by lawyers in the proces of interpretation and
in decision-making. But they did not perceived natural law as a source of law, stricto
sensu as a source of indiviual rights and obligations in the human relations. The natural
law can be found in following institutes of Roman law:
• consanguinity („blood relation“ between certain persons as an impediment of
matrimonium – Paul. D. 23,2,14,2),
• manumission (emancipation from slavery; Ulp. D. 1,1,4),
• acquisition of ownership by accession (Gai. Inst. 2,72-75),
• acquisition of ownership by taking (occupatio) and traditio (Gai. Inst. 2,66-68)
• acquisition of ownership by specificatio (Gai. Inst. 2,79),
• self-defence (Gai. D. 9,2,4 pr.),
• theft (furtum), which is directly prohibited by natural law (Paulus):
Paul. D. 47,2,1,3: Paul. D. 47,2,1,3:

Furtum est contrectatio rei fraudulosa A theft is the fraudulent handling of
lucri faciendi gratia vel ipsius rei vel etiam anything with the intention of profiting
usus eius possessionisve. Quod lege natu- by it; which applies either to the article it-
rali prohibitum est admittere. self or to its use or possession, when this
is prohibited by natural law.
In addition, a very important category of law, with basis in the natural law, was
in the Roman law a natural obligation (obligatio naturalis, Ulp. D. 15,1,11,2). Such acts
made by slaves an sons under paternal power were perceived as debts that are „equi-
table by nature“ as Ulpian expressed that:
30
Ulp. D. 15,1,11,2: Ulp. D. 15,1,11,2:

Sed si a debitore dominico servus ex- Where, however, a slave has exacted
egerit, an domini debitorem se fecerit, payment from a debtor of his master, the
quaeritur: et Iulianus libro duodecimo di- question arises whether he has made
gestorum non aliter dominum deducturum himself a debtor to his master? Julianus,
ait, quam si ratum habuisset quod exac- in the Twelfth Book of the Digest, says
tum est: eadem et in filio familias dicenda that the master will not be entitled to
erunt. et puto veram iuliani sententiam: make a deduction, unless he ratified the
naturalia enim debita spectamus in peculii collection of the money, and the same
deductione: est autem natura aequum lib- must also be said in the case of a son
erari filium vel servum obligatione eo quod under paternal control. I think that the
indebitum videtur exegisse. opinion of Julianus is correct, for we take
into account natural debts in deductions
from the peculium; for natural equity re-
quires that a son or a slave should be re-
leased from liability because he seems to
have exacted what was not due.
This kind of obligation was reflected as a real act (with regard to the sources it was
only act of slave), which had effects in the law, with regard to importance of economic
(commercial) affairs. Lawyer Paulus expressed the importance of natural law (and as
a consequence also the importance of natural obligations) by following words:
Paul. D. 1,1,11: Paul. D. 1,1,11:

Ius pluribus modis dicitur: uno modo, The term „law“ is used in several
cum id quod semper aequum ac bonum ways. First, whatever is just and good is
est ius dicitur, ut est ius naturale. called law, as is the case with natural law.
Natural law as a real (actual) legal category began to exercise its influence on the
law in the age of emperor Justinian I. This concept was a starting point in the legisla-
tive practice and also in the administrative and judicial affairs. Natural law has been got
into this position due to strong christian background of the Justinian`s government.
31
Chapter III
JURIDICAL ACTS
1. Terminology
The sources of Roman law does not submit any definition of the term „juridical
act“. It would be in the contrary to the nature of Roman legal thought, which did not
tend to generalize, i. e. create something universally valid, when in the social relations
naturally occur specifics. Accordingly, Roman lawyers did not create an abstract con-
cept, which would include all possible cases (relations) containing the same character-
istics of the juridical act in the field of private law.
Nevertheless, we can find in the various fields of Roman law some general terms,
which designated certain acts, especially property acts. These terms are:
• nexum (the oldest form of pecuniary obligation; ; its strict conditions were alle-
viated by Lex poetelia papiria de nexis from the year 326 B.C.;
• actus legitimus (in a broader sense as an „act in accordance with law“),
• contractus (term used in the field of obligations arising from contracts)
• negotium – as a term for the act of transfer of property rights, alternatively as
a term for contract; often used to refer to the other facts, e. g. economic activity
of a man; as a mater concerning civil or penal procedure (negotium forense); the
most correct term with regard to the concept „juridical act“ is a term negotium
nullum, which identified invalid (nonexistent) act (nullius momenti). Some ex-
amples of „null act“ introduces Julian:
32
Julianus, D. 12,6,33: Julian, D. 12,6,33:

Si in area tua aedificassem et tu aedes If I build on your unoccupied land,
possideres, condictio locum non habebit, and you obtain possession of it after-
quia nullum negotium inter eos contra- wards, there will be no ground for an
heretur: nam is, qui non debitam pecu- action for recovery, because no business
contract (i.e. null act) was made be-
niam solverit, hoc ipso aliquid negotii gerit:
cum autem aedificium in area sua ab alio tween us; for he who pays money which
positum dominus occupat, nullum nego- is not due, by this act transacts business
tium contrahit. Sed et si is, qui in aliena
to a certain extent, but when the own-
area aedificasset, ipse possessionem tradi-
er of land takes possession of a building
erected thereon by another, no business
disset, condictionem non habebit, quia ni-
transaction takes place; for, in fact, even
hil accipientis faceret, sed suam rem domi-
nus habere incipiat. Et ideo constat, si quis,
if a person who built upon the land of an-
cum existimaret se heredem esse, insulam other should himself deliver possession,
hereditariam fulsisset, nullo alio modo he would not have a right of action for
quam per retentionem impensas servare recovery, because he would not, in any
posse. respect, have transferred the property to
him who received it, as the owner would
merely have obtained possession of what
was already his. Therefore it is established
that if the party who thought himself to
be an heir should prop up a house which
was part of the estate, he could be reim-
bursed for his expenses in no other way
than by retaining the property.
Gai. Inst. 3, 106 (Just. Inst. 3,19): Institutes of Gaius 3, 106 (Just.
Furiosus nullum negotium gerere Inst. 3,19):
potest, quia non intellegit quid agit. An insane person cannot transact
any business, because he does not un-
derstand what he is doing.
1. 1. The concept of the juridical act
In contrast to the modern unerstanding of the the term „juridical act“, dividing
material (substantive) law from the procedural law and which consequently divides
procedural acts from the substantives, Roman private law considered the acts of the
parties in the civil procedure, in accordance with a disposition principle, as an expres-
sions of their will (in ius vocatio, actio, litiscontestatio), causing legal effects, which prae-
tor only authorized.
For Roman private law, especially in the classical period, is characterized that it
assumed only specific and concrete types of acts and only these acts are protected by
actions.
33
1. 2. Conceptual characteristics of juridical act
With regard to the above-mentioned can be given the definition of the juridical act
asi t has been used in the variou fiels of Roman private law.
Juridical act is an external manifestation (expression) of the internal will of the act-
ing peson intended to have legal effects, that means to establish, modify or dissolve
individual rights and obligations, which law order construed with this expression of
will. With regard to this fact, we can distinguish, whether as a result of this expression
of will are:
• juridical acts - expression of will in accordance with law order as acting person
intended;
• unlawful acts; unlawful act is directly against the law (contra legem) and the
effects of this act results by force of law;
• juridical facts - expression of man, which is not a result of mental activity, but it
is based on the enactment of law and have proximate law effects – e. g. denun-
ciation as an appeal adressed from creditor to debtor to pay the debt.
2. Legal facts
From a systematic perscpective we need to define what is legal fact. The legal facts
are the circumstances of various classes, which are the cause of legal effects. If these
circumstances create a complex unity, we call it subject mater. As a legal fact can be:
• legal event (e. g. expression of will at transfer of ownership; birth of man),
• legal state (e. g. right of creditor to the pignus).
According to their objective nature we can divide them as follows:
• positive (possession, ownership),
• negative (losing time-limit to do any legal act).
2. 1. Subjective and objective legal facts
The most important classification of the legal facts is if they are a manifestation of
a human behavior (expression of man’s will) with legal effects (subjective legal facts)
or they are as a result of an other, objective legal fact, which has legal effect. In this
category we recognize two classes of legal facts:
a) Subjective legal facts
Juridical act is classified as a subjective legal fact, seeing that its legal effects de-
pend on expression of will of acting man. The acting of man can be as a active action
or as a omitance (omittere), which is also called qualified inaction. In a broader sense
this includes any gestio of man, internal factors of man’s life, which may take legal con-
sequence (respectability, honesty or dishonesty, ignorantia, dupery).
34
b) Objective legal facts
The objective legal facts are factors with legal effects, which does not depend on
the man’s will. This category includes natural events, if they are, in connection with an-
other legal act, capable to cause legal effects, e. g. if natural disaster destroyed house
as an object of ownership. Another event is – in the case of alluvium (alluvio) - when
movable property is joined to immovable property, also without expression of man’s
will. This is a case of acquisition of ownership by accession.
2. 2. Effects of the legal acts
Legal acts are capable to cause:

• acquisition of subjective individual right (i. e. the connection of right with cer-
tain subject as its proprietor); acquisition may be constitutive (if individual right
is created per acquisition) or derivative (if individual right is transfered from
one subject to another).
• extinguishment of right (or obligation),
• modification of subjective right (or obligation),
• application of sanction, establishing by law order.
3. Types of juridical acts
There are some categories of juridical acts according to various criteria:
a) Act of property law and act of family law
Subject of juridical act in the field of property law is appreciable by money. This
can be a juridical act in the field of obligations (e. g. sale, loan, deposit, letting and hir-
ing) or in the field of law of things (mancipatio, traditio, institution of servitude).
Subject of juridical act in the field of family (personal) law is certain aspect of the
status of man and that is the reason why this act is not appreciable by money (e. g. acts
which are the expression of the patria potestas - emancipatio.
b) Unilateral and bilateral acts
Bilateral act requires for the purpose of its validity consensual expression of will
of two persons, which are the parties of the contract (e. g. letting and hiring, sale,
loan, deposit, stipulatio, societas, mandatum). Unilateral act requires for its validity an
expression of will of one person, which is either adressed to another certain person
(manumission from slavery, emancipatio) or is adressed to uncertain persons (testa-
ment, empowerment).
35
c) Formal act and informal act
Formal juridical act requires for its validity preservation certain form, which is es-
tablished by law order (e. g. testament, mancipatio as an formal transfer of ownership,
stipulatio, mutuum – loan for consumption). Informal juridical acts are those, that are
valid without any certain form of expression of will. Decision about the form of these
acts is reserved to the acting parties. The informal acts in the Roman law are in prin-
ciple causal acts (e. g. commodatum - loan for use, not for consumption; letting and
hiring, traditio as an infomal transfer of possession or ownership).
d) Juridical acts inter vivos and juridical acts mortis causa
Juridical acts inter vivos (between the living people) shall take effects during the
life of its participants. To this category of acts belong all contracts, mancipatio and
traditio. The legal effects of the jusridical acts mortis causa depend on the moment
of the death of acting person (e. g. testament, legacy, donatio mortis causa - donation
depending on donator’s death).
e) Ungratuitous acts and gratuitous acts
Juridical ungratuitous (onerous) acts are those, in which both parties of bilateral
act have actions to claim for protect their subjective (individual) rights (e. g. sale, hire).
Gratuitous (lucrative) act is a kind of act, which requires rendering from one party of
the act without rendering from the second party of act (gratituous acts are bilater-
al: deposit, commodatum - loan for use).
f) Abstract acts and causal acts
Juridical abstract acts are those, whose validity does not depend on the existence
of causa (as a reason of their conclusion) and in the judicial controversy causa is not
an object of probation. In the juridical causal acts the validity of them depends on the
existence of its causa, which is the part of its content. Expression of will in these acts
is intented on the causa. It is necessary to prove the causa in the judicial controversy.
Juridical abstract acts undermined the principle of legal certainty and that was the
reason to admit them only as extraordinary acts in specific situations which required
security and certainty of transfer of the property (acts of alienation). Any incurrable
inequities were corrected by praetor by giving an actio in personam to recover unjust
enrichment, but only from subjects, acquring enrichment from these acts.
g) Juridical acts in the field of civil law and honorary law
Juridical acts based on the norms of civil law are protected by actions of civil law.
These acts are reserved only for Roman citizens and have abstract nature. They have
36
to be done in the prescribed form, e. g. as follows:

• mancipatio (alienation of ownership to the res mancipi);
• sponsio (ceremonial promise);
• in iure cessio (a case of ficticious litigation or conveyance authorized by State
authority using the machinery of the court - in order to transfer civil ownership,
to manumission of slave or to institute of servitude);
• emancipatio (act of pater familias as a manumittor, containing manumission of
his son or daughter from his power, i.e. from patria potestas);
Acts, which came from praetorian jurisdictional power, were protected by praeto-
rian actions (actiones utiles, actiones in factum). The special kind of protection enjoyed
the acts, which were constituted as a result of law of nations (ius gentium). The foreign-
ers could also be a party of these acts.
4. Essentials of a valid juridical act
The above mentioned essentials of the juridical act are those circumstances, which
are required to validity of the act. These circumstances are as follows:
• personal capacity to make juridical acts (capacity to act),
• expression of will,
• conformity of internal will and its expression,
• content of juridical act is recognized by law order.
4. 1. Capacity to make juridical acts
It is a person`s ability to express its own will, which has law effects with regard to
the law order. The law effects may be:
• establishment, modification and termination of the legal relations;
• establishment, modification and termination of subjective individual rights
and obligations;
This capacity expresses in various fields of law and in connection with this it has
in the above mentioned branches of law specific preconditions. The capacity to make
juridical acts expresses as follows:
• contractual capacity, i. e. a ability to make contractual juridical acts and be lia-
ble for them;
• delictual capacity, i. e. ability to be liable for acts, which are against law - delicts
(contra legem);
• procedural capacity (ius postulandi), i. e. an ability of person to submit petitions
before the court;
• testamentary capacity, i. e. ability to make valid testament (last will) and also
ability to be a heir.
The qualifications for the capacity to make juridical acts are as follows:
37
a) certain age of acting person (men – 14 years; women – 12 years);

b) mental health of acting person.
These two factors form together the basic conditions (assumptions) of personal
responsibilty for juridical acts, which depends on the capability to assess the conse-
quences of acting. Besides the mental ilness and the lack of prescribed age could lim-
ite the capacity to make juridical act also another factors, i. e.:
• female gender; women could not make valid juridical acts, if their property po-
sition could become worse, or, if as a result of these acts could be a damnum;
these acts of women required the authorization of their tutor.
• prodigality (persons, who wasted inherited property, could not make those ju-
ridical acts, which would make any damnum at their property);
• physical disability (physical defect), from which results inability to make certain
acts with regard to the nature of the defect;
• dishonesty, which occured by practising certain professions (prostitution, glad-
iator, bawd) or also by living in bigamy and by execution of judgment.
4. 2. Expression of will
The fact, that juridical act is an expression of will of acting man, means, that the
law order gives a great importance to the will and to its expression. But the different
meaning of will and of expression of will is reflected in three doctrines (theories):
a) theory of expression – which takes the major importance to the external char-
acters and the content of the will is in principle irrelevant; the validity of the act
depends on the fact, if this expression could recipient (counterparty) under-
stand as an expression of will; as it is in the Law of the twelve tables (the sixth
table): uti lingua nuncupassit, ita ius esto („what a party has named by word-of-
mouth, that shall hold good“);
b) theory of will – which gives the accent to existence of real (serious) will of act-
ing man in order to get validity of the juridical act;
c) theory of reliance – it emphasises, that although it is necessary to based on
the will, incurrable conflict has to be solve in the interest of legal certainty in
legal relations, on behalf of the expression, which is objectively recognizable.
In order to protect the individual rights of bona fide persons praetor protected
parties in the cases in which, to support the real will (intention), the juridical act
occured an substantial error (error in substantialibus), psychical violence or dolus.
In bilateral juridical acts it was necessary to find out if there has been consensus
regarding the expressions of will of the parties. Interpretation of the contract required
as a basis the objective sense of the expressions. As an expresssion were considered
that factors, which the party of juridical act, with regard to the circumstances, knew or
had to know as a meaning of expression.
Incurrable dissensus makes the formal juridical acts in principle invalid and regard-
ing the informal juridical acts it is possible to use the interpretation of the will of the
acting man if it is helpful to get a consensus and make the act valid.
38
In the case of dissensus, which occured to both parties, concerning error in ma-
terial substantial circumstances (e. g. error in causa, error in persona, error in corpore), it
caused nullity of the act (negotium nullum).
4. 3. Correspondency of will and its expression
Expression of will itself does not guarantee the validity of juridical act. It is nec-
essary to explore, if acting man really expresses his will – so that is clear from his ex-
pression, what he wants to accomplish by juridical act. In fact, it can be the situation,
in which exists disharmony of will and its expression, caused by various (internal or
external) factors.
4. 3. 1. Disharmony of will and its expression
Although the Emperor Justinian I established in his era that the will is almost a con-
ditio sine qua non of valid juridical act, in no period of development of Roman law ex-
isted that any kind of error occurs invalidity of juridical act. With regard to disharmony
of internal will and its expression (external will) there are two different categories of
disharmony:
• unconscious (simple) disharmony (error);
• conscious disharmony (mental reservation, simulation).
a) Error
Error is an unconscious lack of will as a result of incorrect or deficient ideas re-

garding the circumstances of juridical act. Error may concerns about following factors
(circumstances):
• legal or factual,
• substantial (essential) or unsubstantial.
Juridical error (error iuris) refers to the law effects of the act and is caused by ig-
norance of law. This kind of error is irrelevant and ignored and has no legal effects.
From this rule of law were established in Roman law exceptions in behalf of soldiers,
under-ages and women (if the act occurs them a damage). Lawyer Paulus writes about
juridical error in the Digest:
39
Paul. D. 22,6,9: Paul. D. 22,6,9:

Regula est iuris quidem ignorantiam It is a rule of law, that ignorance of law
cuique nocere, facti vero ignorantiam non prejudices, ignorance of fact does not. In
nocere. Videamus igitur, in quibus specie- what cases does this apply? Those under
bus locum habere possit, ante praemisso twenty-five are allowed to be ignorant
quod minoribus viginti quinque annis ius of the law. So are women in some case,
ignorare permissum est. Quod et in feminis owing to the infirmity of their sex. Hence,
in quibusdam causis propter sexus infir- apart from delict, they are not prejudiced
mitatem dicitur: et ideo sicubi non est de- by ignorance of law. So if a minor lends
lictum, sed iuris ignorantia, non laeduntur. money to a son-in-power, he obtains re-
Hac ratione si minor viginti quinque annis lief and is treated as not having lent it to
filio familias crediderit, subvenitur ei, ut a son-in-power.
non videatur filio familias credidisse.
The different regarding consequences between the error iuris and error facti is ex-
pressed in the Justinian´s Code:
Cod. Just. 1,18,10: Just. Cod. 1,18,10:

Cum quis ius ignorans indebitam pe- When anyone, in ignorance of the
cuniam persolverit, cessat repetitio. Per ig- law, pays money, he cannot recover it.
norantiam enim facti tantum repetitionem For you know that money paid but not
indebiti soluti competere tibi notum est. owing can be recovered only when paid
in ignorance of the facts.
Error in fact (ignorance of fact; error facti) concerns about the facts and its influence
on the validity of juridical act is only in the situation of error concerning expression
and with regard to the content of juridical act. But we can observe to the error facti (in
above-mentioned situations) only if it has following qualities:
• substantial (essential),
• excusable (justifiable) and
• act does not relates to the rights of other persons.
Error is non-substantial and consequently irrelevant, if it pertains to the circum-
stances, which the acting man did not take into the content of the act. This includes
error in motive and error in expression (pronouncement).
Substantial (or essential) error (error essentialis) relates to the essential elements of
the expression of will. If the acting man (party of the act) would know them, he would
never done the act. Essential error pertains to following circumstances:
• causa of juridical act (error in negotio);
• personal error (erro in persona);
• error in matter of act (error in corpore);
• error in qualities (attributes) of mater; this error is relevant only if the qualities
identified the matter of the act and this kind of error is, consequently, very
close to error in corpore.
Ulpian submits, in the case of sale of slave, about error in qualitate the different
40
between error in virginitate and error in sexu:
Ulp. D. 18,1,11,1: Ulp. D. 18,1,11,1:

Quod si ego me virginem emere putar- If, however, I think that I am buying a
em, cum esset iam mulier, emptio valebit: virgin, when she is, in fact, a woman, the
in sexu enim non est erratum. Ceterum si sale is valid; there being no mistake over
ego mulierem venderem, tu puerum emere her sex. But if I sell you a woman, and you
existimasti, quia in sexu error est, nulla think that you are buying a male slave,
emptio, nulla venditio est. the error over sex makes the sale void.
Excusable error (error probabilis) is an error, which can occurs to the common (ordi-
nary) man following regular care.
The importance and consequence of error is, that the acting man, which is in error
(error must be essential and excusable) has a right to take an action regarding nullity
of act before the court.
b) Mental reservation
Mental reservation (reservatio mentalis) belongs to the the conscious disharmony

of internal will and its expression. Its essence is the secret reservation of acting man,
which excludes the effects of the act. Although the acting man does not expresses his
real will and without reference to the reasons of mental reservation is the act valid.
In the cases of psychical violence praetor allows to the party, which has made an act
under the violence, an action or exception. With regard to the essence of mental res-
ervation is very important the next fragment of Celsus:
Cels. D. 2,15,12: Cels. D. 2,15,12:

Non est ferendus qui generaliter in his, It should not be tolerated that a party
quae testamento ei relicta sunt, transegerit, may make a compromise with reference
si postea causetur de eo solo se cogitasse, to legacies left to him in general terms by
quod prima parte testamenti ac non etiam will, and afterwards claim that his object
quod posteriore legatum sit. Si tamen was not to compromise except with ref-
postea codicilli proferuntur, non improbe erence to what was left him in the first
mihi dicturus videtur de eo dumtaxat se part of the will, and not with reference
cogitasse, quod illarum tabularum, quas to what was left him in the last part. But
tunc noverat, scriptura continerentur. where codicils are produced, I think that
he could not improperly say to me that he
only was thinking about what was con-
tained in those pages of the will of which
he knew at the time of the transaction.
c) Simulation and dissimulation
If participants only simulate (sham) juridical act, i. e. if they don`t intend it seriously,
41
this is a simulation (simulatio). Simulated juridical act is not valid, because both parties
have not intention to engender legal effects of the act, which is simulated. Regarding
this case writes Modestinus (Herennius Modestinus, 1st half of the 3rd century A.D.):
Mod. D. 44,7,54: Mod. D. 44,7,54:

Contractus imaginarii etiam in emp- Fictitious contracts are not legally
tionibus iuris vinculum non optinent, cum binding, even in the case of sales, for the
fides facti simulatur non intercedente ver- reason that they are only simulated, and
itate. are not based on truth.
By using of simulated act the acting parties sometimes try to cover an another
juridical act, which is by the law order prohibited. This acting is in theory of law called
dissimulation (dissimulatio)and the act is invalid. The weel known case of this acting is
mentioned by Javolenus:
Javol. D. 24,1,64: Javol. D. 24,1,64:

Vir mulieri divortio facto quaedam id- A man gave something to his wife af-
circo dederat, ut ad se reverteretur: muli- ter a divorce had taken place, to induce her
er reversa erat, deinde divortium fecerat. to return to him; and the woman, having
Labeo: Trebatius inter Terentiam et Maece- returned, afterwards obtained a divorce.
natem respondit si verum divortium fuis- Labeo and Trebatius gave it as their opin-
set, ratam esse donationem, si simulatum, ion in a case which arose between Teren-
contra. Sed verum est, quod Proculus et tia and Maecenas, that if the divorce was
Caecilius putant, tunc verum esse divor- genuine, the donation would be valid, but
tium et valere donationem divortii causa if it was simulated, it would be void. How-
factam, si aliae nuptiae insecutae sunt aut ever, what Proculus and Caecilius hold is
tam longo tempore vidua fuisset, ut dubi- true, namely, that a divorce is genuine,
um non foret alterum esse matrimonium: and a donation made on account of it is
alias nec donationem ullius esse momenti valid, where another marriage follows, or
futuram. the woman remains for so long a time un-
married that there is no doubt of a dissolu-
tion of the marriage, otherwise the dona-
tion will be of no force or effect.
d) In fraudem legis agere
However, the effects of certain prohibited act can be achieved – contrary to the
law (contra legem) – by acting, which covers law order and is prohibited by it. This
procedure, which is legal and in accordance to law, acting parties try to achieve the
effects of any other act, but prohibited by law. This procedure - which is inadmissi-
ble - is called in the law theory as „in fraudem legis agere“ (in fraud of the law). Ulpianus
submits about this acting following reflection:
42
Ulp. D. 18,1,38: Ulp. D. 18,1,38:

Si quis donationis causa minoris ven- Where anyone sells property at a low
dat, venditio valet: totiens enim dicimus in price for the purpose of making a donation
totum venditionem non valere, quotiens of the same, the sale will be valid; for we
universa venditio donationis causa facta hold that a sale made of the entire amount
est: quotiens vero viliore pretio res dona- of anything is not valid where this is done
tionis causa distrahitur, dubium non est solely for the sake of making a donation,
venditionem valere. Hoc inter ceteros: in- but when the property is sold at a lower
ter virum vero et uxorem donationis causa price on account of a donation, there is no
venditio facta pretio viliore nullius momen- doubt that the sale will be valid. This rule
ti est. applies to transactions between private in-
dividuals; but when a sale is made at a low
price on account of a donation between
husband and wife, it is of no force or effect.
5. The contents of juridical act
Roman law is characterized by certian types of acts, which are recognized by law.
In the field of obligations put Ulpian (D. 2,14,7,4) a following rule (regula iuris): „nuda
pactio obligationem non parit“. This rule expressed that in classical Roman law existed
in the law order only „numerus clausus“ of acts, which were protected by action. This
principle is expressed, in particular, by certain types of actions, protecting certian sub-
jective rights. The other actings of people were protected only by using praetor’s juris-
diction in accordance to principles of equity and justice (honorary law). The contents
of juridical act has also to be regulated by certain limits, establishing by law and which
are expressed in three categories of components of juridical act:
• essential (substantial; essentialia negotii);
• natural (naturalia negotii);
• accidental (accidentalia negotii).
The limitations of civil law were overcame by praetor´s jurisdiction and this fact
explains Papinian:
Pap. D. 19,5,1: Pap. D. 19,5,1:

Nonnumquam evenit, ut cessantibus It sometimes happens that existing
iudiciis proditis et vulgaribus actionibus, and common actions will not lie, and we
cum proprium nomen invenire non pos- cannot find the proper name for the pro-
sumus, facile descendemus ad eas, quae ceeding; so we readily have recourse to
in factum appellantur. Sed ne res exemplis those designated in factum. In order that
egeat, paucis agam. examples may not be wanting, I will give
a few.
43
5. 1. Essential components of juridical act
However, the juridical act, as it is a manifestation of the will, is characterized by

this, that it contents create the parties in accordance to their own wills and commercial
needs. Nevertheless, beside creating the content of juridical act, the law order requires
from acting parties to take such elements into the content of their act, which are for
every juridical act substantial (constitutive) and without them the juridical act would
be not valid with regard to the law order.
Consequently, for every type of juridical act law order provides some essential
components, which have to be as a necessary contents of valid juridical act, with re-
gard to the concrete type of it. So, that means, i. e. in the contract type „sale“ (emptio
venditio) are essential components an consent regarding the „object sold“ and price;
in the contract type named „letting and hiring“ (locatio conductio) are the essential
components consent regarding the object of letting and hire cost; „loan for use“ (com-
modatum) has the only essential, substantial component the delivery, a mere physical
transfer of the object of use.
5. 2. Natural components of juridical act
Participants of the juridical act are able to agree circumstances - in accordance

to the disposition principle – which precisely define the contents of act. If they do it,
these circumstances become an integral part of juridical act as its natural components.
If the parties don`t agree that, there are effective these circumstances, which are es-
tablished by law order as circumstances presumably given by acting parties. (i. e. in the
case of sale - unless the parties agree otherwise, the price have to be paid immediately
after conclusion of sale.)
5. 3. Accidental components of juridical act
Participants of the juridical act can establish, in accordance to private autonomy,

also another circumstances as a contents of juridical act. There are such circumstanc-
es, which are not obligatory part of juridical act, but the party can add them to the
juridical act (in the bilateral act by a consent). As a consequence of that, these added
circumstances become an integral part of the juridical act. Accidental components of
the juridical act in the Roman law were these circumstances:
a) conditio (condition); is a possible, future, uncertain event (circumstance), from which
depend the effects of the juridical act; it can be resolutive (if the condition is ful-
filled, the effects of juridical act are lapsed for good) or suspensive (if the condition
is fulfilled, the juridical act comes into effect); condition cannot be added to formal
civil acts (e. g. mancipatio, in iure cessio) and to another certain acts (marriage, ac-
ceptance of an inheritance by an heir) in order to create immediately law effects.
b) dies (date); a certain time, taken by acting party into the contents of juridical
act; when the time expirates, the effects of act are either lapsed (dies ad quem)
or created (dies a quo).
44
c) modus (modus, mode); accidental establishment, added to the gratuitous acts,

binding the donatory to a certain conduct; the effects of the act depends only
on expiry of the time.
45
Chapter IV
LAW OF PERSONS
1. Natural persons
The essential concept of Roman law of persons is term „caput“ (head, personality).
The term caput liberum determines the status of free persons and the term caput ser-
vile determines the status of a slave. The term status in a broader sense determines the
legal position of a person in three categories:
• status familiae; position of a person in the family (household) as a juridical bond;
• status libertatis; position of a human being as a slave or a free;
• status civitatis; position of people, whether they are Roman citizens or foreign-
ers.
There is also another important division in the field of law of persons - whether
a person is sui iuris (person of its „own power“) or alieni iuris (person of „alius power“).
2. Legal personality
Legal personality is an ability to have subjective rights and obligations. This capac-
ity has static nature, forasmuch as it not depends on the active conduct, but the sub-
stantial factor is, that the rights and obligations can be connected to a certain person:
• by its own conduct (if person is capable to make juridical acts), or
• by conduct of alius (if person is not capable to make juridical acts), i. e. conduct
of tutor and curator;
The pre-requisities of the legal personality concerning natural person (not juridical
person) was factical cirmstance (birth of a person) and legal circumstances (status fa-
miliae, status libertatis and status civitatis).
Legal personality was limited by following circumstances:
a) minutio existimationis (loss of honour) – in a broader sense this concept deter-
mines various levels of „losing civic honour“, i. e. partial disqualification, or impairment
of man`s civic honour without destroying his legal personality (caput) with regard to
the law order. Loss of honour had two forms – infamy (infamia) and turpitude – ill fame
(turpitudo).
• infamia was a status, which conditions were regulated by law (by statutes or
46
in praetorian edict); praetor in the edict enumerated, to whom and in which

situations he declined to grant to certain right (i. e. deny the right to make mo-
tion before court; right of being represented by an procurator or cognitor in an
action, prohibition of marriage with certain categories of persons, prohibition
of testimony before court); infamous were e. g. persons living in bigamy, glad-
iators, histrions, persons condemnated for certain delicts (theft, rapine, injuria)
and also for certain contracts (mandate, deposit); condemned person was to
the future considered as „infamous“. Gaius explains above-mentioned proce-
dure by following words:
Gai. Inst. 4,182: Institutes of Gaius 4,182:

Quibusdam iudiciis damnati ignomin- In certain actions persons who are
iosi fiunt, uelut furti, ui bonorum rapto- condemned become infamous, as in
rum, iniuriarum, item pro socio, fiduciae, those of theft, rapine, and injury, also in
tutelae, mandati, depositi. sed furti aut ui cases of partnership, trust, guardianship,
bonorum raptorum aut iniuriarum non mandate, and deposit. In actions of theft,
solum damnati notantur ignominia, sed rapine, and injury, not only are the per-
etiam pacti, ut in edicto praetoris scriptum sons convicted branded with infamy, but
est; et recte. plurimum enim interest, utrum also where a compromise is made, as is
ex delicto aliquis an ex contractu debitor stated in the Edict of the Prćtor; and this is
sit. nec tamen ulla parte edicti id ipsum proper, for it makes a great deal of differ-
nominatim exprimitur, ut aliquis ignomin- ence whether anyone becomes a debtor
iosus sit, sed qui prohibetur et pro alio pos- on account of the commission of a delict,
tulare et cognitorem dare procuratoremue or under a contract. But while it is not ex-
habere, item procuratorio aut cognitorio pressly stated in any part of the Edict that
nomine iudicio interuenire, ignominiosus a party is to become infamous, still he is
esse dicitur. said to be infamous who is forbidden to
represent another in court, or to appoint,
give, or have an agent or attorney, or to
intervene as agent or attorney in a case.
• turpitudo (ill fame); unlike infamy this status depends not on the norms of law,
but on the social verdict, public opinion and on the judge`s verdict in the in-
dividual case, based on his free discretion; judge has competence to prohibite
infamous to act as a guardian, to prohibite infamous, to acquire an obligatory
part of heritage at interest of siblings;
b) women – they were not capable (qualified) to have paternal power or to be
a guardian (tutor), to be a wittness concerning mancipation and testament.
Legal personality (status) was in Roman law construed by three constituent ele-
ments, which expressed the position of a person:
• as a member of family (as a system of agnates under the power of pater famil-
ias),
• as a Roman citizen or foreigner,
• as a slave or a free person.
The person of full status was the one who had all three elements. The only person
47
with full status was a pater familias - personally free man with Roman citizenship as
a head of family of agnates. Loss, or absence of any element resulted in loss of civil sta-
tus (capitis deminutio), either „greatest“ (capitis deminutio maxima), or „middle“ (capitis
deminutio media), or „least“ (capitis deminutio minima). Lawyer Paulus described it in
the Digest:
Paul. D. 4,5,11: Paul. D. 4,5,11:

Capitis deminutionis tria genera sunt, There are three kinds of changes of
maxima media minima: tria enim sunt civil status, the greatest, the middle, and
quae habemus, libertatem civitatem fa- the least; as there are three conditions,
miliam. Igitur cum omnia haec amittimus, which we may have, namely, those of
hoc est libertatem et civitatem et familiam, freedom, citizenship, and family. There-
maximam esse capitis deminutionem: fore, when we lose all of these, that is to
cum vero amittimus civitatem, libertatem say freedom, citizenship, and family, the
retinemus, mediam esse capitis deminu- greatest change of civil status ensues;
tionem: cum et libertas et civitas retinetur, but where we lose citizenship and retain
familia tantum mutatur, minimam esse freedom, intermediate loss of civil status
capitis deminutionem constat. occurs; and when freedom and citizen-
ship are retained, and only the family po-
sition is altered, it is established that the
least change of civil status takes place.
3. Law of the family
3. 1. Status familiae
Family in the Roman legal thought was not a biological bond and in this sense it is
designated by term „family of agnates“ (familia), which formed not only legal, but also
an economical entity. Family of agnates stricto sensu was a entity, group of persons,
consisting of a pater familias as a head of it and other members under his power. The
causes of subordination could be following circumstances:
• patria potestas (paternal power over the natural and adoptive children),
• manus (power over the wife, if the marriage was cum manum conventionem),
• mancipium (the other, free persons, which were working temporarily under the
power of patris familias),
• dominica potestas (power over the slaves in a broader sense and also over the
all things, belonging to household).
Biological, i. e. blood relationship was in the family of agnates irrelevant.
48
a) Patria potestas
Paternal (parental) power constituted the power over the children of head of the
family, whether they were biological or adoptive. It was caused by these circumstanc-
es:
• birth of a child in a Roman legal marriage (matrimonium legitimum), which was
a matrimony between two Roman citizens or between Roman citizen and a
person with ius connubii; the test, if the child is legitimate (lawful) or not (i.e.
illegitimate) was the time of its birth. With regard to the legitimacy of the new-
born child the law order established a following presumption:
Paul. D. 4,5,11: Paul. D. 1,5,12:

Septimo mense nasci perfectum par- That a child can be born fully formed
tum iam receptum est propter auctori- in the seventh month is now a received
tatem doctissimi viri Hippocratis: et ideo wiev due to the authority of that most
credendum est eum, qui ex iustis nuptiis learned man Hippocrates. Accordingly, it
septimo mense natus est, iustum filium is credible, that a child born in a seventh
esse. month of a lawful marriage is a lawful (le-
gitimate) son of the marriage.
The children, which were born after the 182th day after the entering the marriage
and before the 300th day after divorce or death of spouse, were legitimate (filii iusti).
This is a consequence of a principle, which is stated in the following fragment:
Paulus, D. 2,4,5: Paulus, D. 2,4,5:

Quia semper certa est, etiam si volgo This is for the reason that the mother
conceperit: pater vero is est, quem nuptiae is always certain, although she may have
demonstrant. been given to promiscuous intercourse;
but the father is he whom the marriage
indicates as such.
The children, which were born to a non-married woman are illegitimate (vulgo con-
cepti). Roman law order established, concerning them, that they have no father, be-
cause it is uncertain, who is its father. These childs have consequently blood-relatives
only by mother. Gaius stated this principle in the following fragment:
49

Ergo si quis nefarias atque incestas Therefore, if anyone should contract
nuptias contraxerit, neque uxorem habere a nefarious and incestuous marriage he is
videtur neque liberos: Itaque hi, qui ex eo considered to have neither a wife nor chil-
coitu nascuntur, matrem quidem habere dren, hence the issue of such a union are
videntur, patrem vero non utique, nec ob id considered to have a mother but no fa-
in potestate eius sunt, quales sunt ii, quos ther, and for this reason are not subject to
mater vulgo concepit: Nam et hi patrem paternal authority, but resemble children
habere non intelleguntur, cum is etiam in- whom the mother has conceived through
certus sit; unde solent spurii filii appellari promiscuous intercourse; and they, in like
vel a Graeca voce quasi σποραsδηυ con- manner, are understood to have no fa-
cepti nel quasi sine patre filii. ther, as he also is uncertain; therefore
they are ordinarily called illegitimate chil-
dren, either from the Greek word meaning
conceived indiscriminately, or because
they are children without any father.
• adoption of a person, which is alieni iuris;

• adrogation of a person sui ius (with all his familia, if he had, and with all his
property).
Paternal power consisted of these rights:
• ius exponendi (exposure), i.e. paterfamilias had (in the early old law) right to ex-
pose newborn child as a sign of intention to reject the child (or, he can accept
it). This cruel right was later restricted and during the reign of the Emperor
Valentinian I was the exposure prohibited:
Cod. Just. 8,51,2: Cod. Just. 8,51,2:

Unusquisque subolem suam nutriat. Everyone should nourish over his
quod si exponendam putaverit, animad- own offspring. If anyone exposing them,
versioni quae constituta est subiacebit. he will be liable to the penalty laid down
for this.
• ius vitae necisque, i. e. the power of life and dead and minor violence; classical
law regarded a killing of a son, except under the formal domestic judgment as
a criminal (crimen publicum). There was also a „right of killing“ (ius occidendi),
established by Emperor Augustus (cca in the year 18-17 B.C.), which allowed
a pater familias to kill his daughter in paternal power and her lover, when he
took them in adultery;
• ius vendendi (power of sale), i.e. power to sell a child into the real slavery „over
the river Tiber“ (trans Tiberim);
• ius noxae dandi, i.e. power to sell to a civil bondage and for a noxal surrender
for a wrongs (delicta); about this kind of right, which was also joined with the
responsibility of paterfamilias (dominus) regarding delicts of his sons and slaves
writes Gaius:
50

Ex maleficio filiorum familias seruo- Noxal actions are granted on account
rumque, ueluti si furtum fecerint aut iniuri- of offences committed by sons under pa-
am commiserint, noxales actiones prodi- ternal control, or by slaves; as, for instance,
tae sunt, uti liceret patri dominoue aut litis where they commit theft or injury; so that
aestimationem sufferre aut noxae dedere. the father or master is permitted either to
erat enim iniquum nequitiam eorum ultra pay the damages assessed, or to surren-
ipsorum corpora parentibus dominisue der the culprit by way of reparation; for it
damnosam esse. would be unjust for the misconduct of a
son or a slave to cause any loss to his par-
ent, or his master, except by the forfeiture
of the body of the son or the slave.
• ius vindicandi, i.e. right of action for the recovery of the child from anyone de-
taining his child;
• right to veto matrimonium and to control divorce.
Persons under the paternal power are alieni iuris and they does not acquire subjec-
tive rights and obligations. Adults in paternal power have right to marry (ius connubii)
and filiusfamilias (i.e. son under the paternal power) has all rights in the field of public
law.
Family of agnates terminated in the moment of the death of patris familiae. All
persons, which were in this moment in paternal power were consequently sui iuris.
Paternal power ended throughout the life by emancipation, i.e. by act of pater familias,
making his child free from paternal power. This person was from this moment sui iuris.
About emancipation writes Gaius in his Institutions:
Gai. Inst. 1, 132: Institutes of Gaius 1, 132:

Praeterea emancipatione desinunt li- Again, children cease to be under pa-
beri in potestate parentum esse. Sed filius rental authority by means of mancipation.
quidem tribus mancipationibus, ceteri vero A son, however, by three mancipations, and
liberi sive masculini sexus sive feminini una other children either of the male or female
mancipatione exeunt de parentium po- sex by a single mancipation, are released
testate: Lex enim XII tabularum tantum in from paternal power; for the Law of the
persona filii de tribus mancipationibus lo- Twelve Tables only mentions three manci-
quitur his verbis: ‚Si pater ter filium venum pations with reference to a son, as follows:
duit a patre fliius liber esto‘. „If a father sells his son three times, let him
be free from the control of his father.“
b) Manus
Woman as a wife under manus was under the power of her husband with certain
rights (e.g. ius vindicandi). She was as a loco filiae, i.e. as a sister of her children with
regard to the law.
There were three ways of acquiring manus:
51
• coemptio (a modified form of a bride purchase; it was a sale of a wife per aes et
libram);
• confarreatio (religious ceremony at the altar of Jupiter, with a sacrifice and with
consumption of a cake with assisting pontifex);
• usus (a rule, that one year`s not interrupted cohabitation turned informal union
into a matrimonium with manus.
Matrimonial power over the wife of husband which was alieni iuris, was executed
by his pater familias.
c) Mancipium
In consequence of his potestas a pater familias could mancipate his child to an-
other person, for in the old times of the republic his patria potestas was hardly distin-
guished from property. A husband had the same power over a wife in manu. Accord-
ingly a child in potestate and a wife in manu were properly res mancipi; and they were
said to be in mancipio (civil bondage). Still such persons, when mancipated, were not
exactly in the relation of slaves to the persons to whom they were mancipated; but
they occupied a status between free persons and slaves, which was expressed by the
words mancipii causa. Such persons as were in mancipii causa were not sui iuris; and all
that they acquired, was acquired for the person to whom they were mancipated. But
they differed from slaves in not beng possessed; they might also have an injuriarum
action for ill-treatment from those who had them in mancipio, and they did not lose
the rights of ingenui (who was born as a free person), but these rights were only sus-
pended. As to contracts, the person with whom they contracted might obtain the sale
of such property (bona) as would have been theirs, if they had not been in mancipii
causa; persons in mancipii causa might be manumitted in the same way as slaves. The
situation of a debtor who was adjudicated to his creditor resembled that of a person
who was in mancipii causa.
d) Dominica potestas
About the potestas of master over slaves submits Gaius in his Institutes:
Gai. Inst. 1,52: Institutes of Gaius 1, 52:

In potestate itaque sunt servi domi- Slaves are in the power of their mas-
norum. Quae quidem potestas iuris gen- ters, and this power is acknowledged
tium est: Nam apud omnes peraeque by the Law of Nations, for we know
gentes animadvertere possumus dominis that among all nations alike the master
in servos vitae necisque potestatem esse, has the power of life and death over his
et quodcumque per servum adquiritur, id slaves, and whatever property is acquired
domino adquiritur. by a slave is acquired by his master.
52
3. 2. Status libertatis
The substantial division in the field of the law of persons concerning the position
of the free persons and slaves is expressed in the Institutes of Gaius:

Et quidem summa divisio de iure per- Certainly, the great divide in the law
sonarum haec est, quod omnes homines of persons is this: all men are either free
aut liberi sunt aut servi. or slaves.
Status libertatis expressed a position of a man as a free person (either sui iuris or
alieni iuris) or as a slave. A free person had legal personality (status), it did not have
a slave. It began (arised) at birth and the „being“ must have a „human form“. Lawyer
Paulus describes it as follows:
Paul. D. 1,5,14: Paul. D. 1,5,14:

Non sunt liberi, qui contra formam Those beings are not children (free)
humani generis converso more procrean- who are born formed in some way which
tur: veluti si mulier monstrosum aliquid aut is contrary to the likeness of the human
prodigiosum enixa sit. Partus autem, qui race; as, for instance, where a woman
membrorum humanorum officia amplia- brings forth something monstrous or
vit, aliquatenus videtur effectus et ideo in- prodigous (unnatural). A child, however,
ter liberos connumerabitur. which has more than the ordinary num-
ber of human limbs seems to be, to some
extent, completely formed, and there-
fore may be included among children.
The Roman law order also reserved certain rights - not obligations - to the fetus
(nasciturus), but under the condition of birth. It is reflecfted in the following fragment
of Digest:
Paul. D. 1,5,7: Paul. D. 1,5,7:

Quae liberis damnatorum concedun- A child (fetus) in its mother‘s womb
tur. Qui in utero est, perinde ac si in rebus is cared for just as if it were in existence,
humanis esset custoditur, quotiens de com- whenever its own advantage is con-
modis ipsius partus quaeritur: quamquam cerned; although it cannot be of any
alii antequam nascatur nequaquam prosit. benefit to anyone else before it is born.
Legal personality extincted in the moment of physical death or in the case of en-
slavement (capitis deminutio maxima).
a) The Legal position of the slaves
Slave was a human „thing“, without legal personality, objects of subjective rights,
which belonged to their master (dominus). Ulpian describes it:
53
Ulp. D. 28,1,20,7: Ulp. D. 28,1,20,7:

Servus quoque merito ad sollemnia A slave cannot participate in the for-
adhiberi non potest, cum iuris civilis com- malities attaching to the execution of
munionem non habeat in totum, ne prae- a will, and very properly, as he has no
toris quidem edicti. share whatever in the rights conferred by
the Civil Law, or indeed in those granted
by the Praetorian Edict.
The basis of the legal position of the slave we can exemplify in following fragments
of various Roman lawyers:
Florentinus D. 1,5,4: Florentinus D. 1,5,4:

pr. Libertas est naturalis facultas eius Pr. Freedom is one`s natural power of
quod cuique facere libet, nisi si quid vi aut doing what one pleases, save insofar asi t is
iure prohibetur. ruled out either by coercion or by law.
1. Servitus est constitutio iuris gentium, 1. Slavery is an institution of Law of na-
qua quis dominio alieno contra naturam tions, whereby someone is against nature
subicitur. made subject to the ownership of another.
2. Servi ex eo appellati sunt, quod im- 2. Slaves are so-called, because mili-
peratores captivos vendere ac per hoc tary commanders have a custom of sell-
servare nec occidere solent. ing their prisoners and thereby preserv-
ing rather than killing them: and indeed
they are said to be in mancipia, because
they are captives in the hand of their en-
emies.
Just. Inst. 1,16,4: Just. Inst. 1,16,4:
Servus autem manumissus capite non A slave does not suffer loss of status
minuitur, quia nullum caput habuit. by being manumitted, for while he had
Ulpián D. 50,17,32: no caput (civil status).
Quod attinet ad ius civile, servi pro Ulp. D. 50,17,32:
nullis habentur; non tamen et iure naturali, Before the Civil law a slave is nothing,
quia, quod ad ius naturale attinet, omnes but not before the Natural law; for in the
homines æquales sunt. eye of Natural law all men are equal.
The position of a slave in the family of agnates was very similar to the status of
filiusfamilias. A sane adult slave was capable to make juridical acts. But he could not
make juridical acts for themselves, only for his master. Gaius writes in his Institutes:
Gai. Inst. 2,87 (D. 41,1,10,1) Institutes of Gaius 2,87

Igitur quod liberi nostri, quos in potes- (D. 41,1,10,1)
tate habemus, item quod serui nostri man- Anything, which our slaves receive
cipio accipiunt uel ex traditione nanciscun- by delivery and anything which they
tur siue quid stipulentur uel ex aliqualibet acquire, whether on a stipulation or
causa adquirunt, id nobis adquiritur: ipse any other ground, is acquired by us. For
enim, qui in potestate nostra est, nihil suum a person in the power of another can
habere potest; ... hold nothing for himself; ...
54
A slave can made juridical act on special order of his master (iussum) or he can
made juridical acts concerning a master´s property, which master give a slave for use
and enjoyment - peculium (but it was still an ownership of a master). Pomponius de-
scribes peculium in following fragment:
Pomp. D. 15,1,4,2: Pomp. D. 15,1,4,2:

Ex his apparet non quid servus igno- It follows, that it is what the slave
rante domino habuerit peculii esse, sed holds with the master´s consent which
quid volente: alioquin et quod subripuit constitutes the peculium, not what the
servus domino, fiet peculii, quod non est slave holds without his master´s knowl-
verum. edge; otherwise, a thing which the slave
filches (steals) from his master would
form part of the peculium and that is not
the law (truth).
The peculium can be given in various forms, e. g. as agricultural instruments, com-

mercial establishment, industrial shop, eventually it can consist of another slaves, or
individual pieces of master´s property. Peculium was not a static fund, but could grow
and diminish according to the slave´s bussines ability.
Master of the slave was responsible for the acts of his slaves (and also his sons un-
der the paternal power). This responsibility had these forms:
• for the whole obligation which the slave took on master´s order (actio quod
iussu);
• for the peculium amount (actio de peculio); about this action writes Ulpian:
Ulp. D. 15,1,1,pr.: Ulp. D. 15,1,1,pr.:

Ordinarium praetor arbitratus est prius The Praetor judged it to be the proper
eos contractus exponere eorum qui alienae way to first explain the contracts of those
potestati subiecti sunt, qui in solidum tribu- who are subjected to the authority of an-
unt actionem, sic deinde ad hunc pervenire, other which give a right of action for the
ubi de peculio datur actio. entire amount, and then to come to the
present one, where an action is granted
on the peculium.
• actio de in rem verso; if the master used, what was received by slave concering
peculium, for his own benefit;
The power over the slave, however, was qualitatively differnt from the paternal
power. Master could, in accordance to his rights, freely dispose of slave: he could sell
the slave, deliver him into the deposit, hire him, manumit him, loan him for use. Simi-
lar to the filiusfamilias, a master had a right to make a choice whether to pay for harm
caused by his slave or hand him over to the injured party. After the master´s death,
a slave belongs to the inheritance as a component of it, as distinct from a filiusfamilias,
which becomes a heir.
In the oldest Roman law a master could do with a slave what he wanted, as a con-
sequence of that, he had an unlimited power of life and death. But the brutal treat-
ment could result in disharmony from the censor´s authority and resulted in legal dis-
55
grace. The protection against brutality regarding life of the slaves was established in
some laws. An unjusting killing of alien slave was regulated in the 1st century B.C. as
a crimen publicum. Some limits were introduced (1st century A.D.) as concerning the
criminal liability of owners who unjustly killed own slave and forced sale of slaves un-
justly tortured. In the year 10 A.D., the Senatusconsultum Silanianum established, that,
if the master was murdered, all slaves which were under the roof, were to be ques-
tioned under torture and condemned to death unless they could prove they had done
everything they could to save their master:
SC Silanianum, 38 SC Silanianum, 38
(Ulp. D. 29.5.1.38): (Ulp. D. 29,5,1,38):
Si dominus mortifere vulneratus super- If someone committed the murder (of
vixerit nec de quoquam servorum suorum a master) in the presence of his slaves, and
conquestus sit, etiamsi sub eodem tecto they could have prevented it, they should
fuerunt, tamen parcendum illis erit. be punished, but if they were unable to
prevent it, they will be free from liability.
But, Senatusconsultum Silanianum gave freedom to a slave who discovered the

murderer of his master. Emperor Domitian (81-96 A.D.) established, that the castration
of male salves is prohibited.
Private slave (not public slave) could not be a party to a civil marriage (matrimo-
nium legitimum). However, sexual cohabitation between male and female slave (con-
tubernium) was recognized for the purpose of blood relation, i. e in the case, when
a child was born in contubernium and both parents were later manumissed, this child
could not enter into civil marriage with a parent because of the blood tie (relationship),
which was established as a impediment of marriage.
As a basic rule of the law of nations was that a child get the status of its mother in
the moment of birth. Slavery by birth arised if the mother was a slave (in a momen ofa
birth) and the status of a father was unsubstantial (irrelevant.). A child born to a father,
which was a Roman citizen and its mother was a slave, was in dominica potestas of
mother´s master. Emperor Hadrian established, that a child born to a slave mother was
free if his mother had been free at the time of conception or at any time before the
birth (favor libertatis).
Enslavement
In early law the pater familias had the right to sell his children into the slavery. This
enactment, banned in the time of Republic, was revived in the later Empire in limited
form, i.e. that only the new born child could be sold into the slavery.
Enslavement could be arised as a punishment in these circumstances:
a) delict - i.e. when a free man was caught as a thief, he became a slave of a victim;
b) avoid a duty – man, ho avoided to fulfill his obligation, has been listed into the
census, lost liability to be taxed and could be enslaved by the State;
c) ingratitude – a former slave, which was manumissed, could be reenslaved by
his patron in specific circumstances, e.g. in the case of ingratitude;
d) in the case, when a female Roman citizen cohabitated with male slave and af-
ter the warning of the slave´s master she did not interrupted this cohabitation,
56
then she could be enslaved by the owner, in accordance to a magistrate´s de-

cree. This case was regulated in the Senatusconsultum Claudianum (enacted in
the year 52 A.D.);
e) if someone as a free man, pretending to be a slave, try to sell himself into the
slavery as an arrangement for an accomplice to sell him to an unsuspecting
customer. Then, the free man established his liberty and share the price with
the seller – his accomplise.
The capture in a war was a most important mode of enslavement in the late Repub-
lic. It occured when the foreigner was captured in a war against Rome as a prisoner.
The prisoners of war became the slaves of the state (servi publici). Enslavement occured
also in the time of peace, when foreigner was arrested on territory of Roman empire,
having no lawful reason for his presence there. If a Roman citizen was captured by the
enemy, Roman civil law recognized him as a „slave of the enemy“. As a consequence,
he incurred capitis deminutio maxima (loss of the whole status). The law order consid-
ered this situation using a fiction, that the captive Roman citizen died at the moment
of capture. If the captive returned to Roman territory, he enjoyed a legal benefit enti-
tled postliminium (re-entering the boarders). The re-entering man regained freedom
and all his former rights are restored. But his marriage, if it was dissolved in the time of
captivity, did not revive. If re-entering man was former filiusfamilias, he became sub-
ject to the same paternal power. This juridical institute is listed in the Digest:
Pomponius, D. 49,15,5, pr. 1: Pomponius, D. 49,15,5, pr. 1:

Postliminii ius competit aut in bello aut The right of postliminium applies both
in pace. in war and peace. In war, when those, who
1. In bello, cum hi, qui nobis hostes are our enemies have captured someone
sunt, aliquem ex nostris ceperunt et intra on our side and have taken him into their
praesidia sua perduxerunt: nam si eodem own fortifications; for if during the same
bello is reversus fuerit, postliminium habet, war he returns he has postliminium, that
id est perinde omnia restituuntur ei iura, ac is, all his right are restored to him just as if
si captus ab hostibus non esset. Antequam he had not been captured by the enemy.
in praesidia perducatur hostium, manet Before he is taken into the enemy fortifi-
civis. Tunc autem reversus intellegitur, si cations, he remains a citizen. He is regard-
aut ad amicos nostros perveniat aut intra ed as having from the time when passes
praesidia nostra esse coepit. into the hands of our allies or begins to be
within our own fortifications.
Release from slavery

Release from slavery had various form, most important was a manumission, the
act of master, whereby the salve gets freedom. The effect of the formal manumission
was, that a former slave acquired a Roman citizenship. With regard to the civil law, the
slavery ended by these formal modes of manumissio:
• vindicta, i.e. as a result of a fictitious litigation concerning the status of a man;
„the assertor of liberty“ (adsertor libertatis) declared by claiming, before mas-
ter, his slave and magistrate, that a slave is free, touching him with a ceremonial
rod; the master, without exception, made a cessio of a slave;
• census, i.e if a slave was enrolled on the census (list) with the approval of his
57
master and with the consent of a censor;

• testamentum, i.e. when a master granted freedom to his slave in his last will
(testamentum, legatum) by imperative words;
• manumissio in ecclesia, i.e. a slave was manumited from slavery by declaration
of his master before a bishop and the assembly of christians; it was established
by Emperor Constantine the Great.
The informal modes of manumission occured, when a master showed a clear in-
tention that a slave should be recognized as free. The modes of informal manumission
were:
• per epistulam, i.e. by letter containing above-mentioned intention;
• inter amicos, i.e if the intention to release was declared in the presence of the
friends of a master or in the presence of the members of his family.
In later law, in accordance with the principle favor libertatis, every act of master,
showing an intention of equality of his slave with him, was recognized as release from
slavery.
The legal consequence of informal manumission was, with regard to the civil law,
that the slavery persits, but the „slave“ was protected by praetor as a free person (in
the form of exeption to the action), if the master should try to exercise his rights re-
garding dominica potestas.
Release from slavery resulted into the new relationship between the former mas-
ter and his slave. This relationship was called patronage (clientela), former master was
named „patron“ (patronus) and former slave was named „freedman“ (cliens). Patron
had certain rights with regard to the freedman and these rights are recognized as fol-
lowing duties of a freeman:
• operae (services);
• munera (gifts) – in the specific ocassions;
• obsequium (respect) – certain form of obedience as between parent and child;
• bona (property) – patron had right to succeed to a freedman´s estate if the lat-
ter died without intestate and without leaving heirs;
• restitutio natalium (the restoration of birthrights) – the Emperor could declare,
in accordance to patron´s consent, the freedman as a freeborn citizen, when
a patronage would be terminated.
3.3. Status civitatis
a) Roman citizens
The basic rights of Roman citizens (cives Romani), which resulted from the norms of
law order, were in the field of private law the followings:
• commercium; a right to participate in the commercial transactions regulated by
ius civile (Roman civil law); including to make formal juridical acts (e.g. mancipa-
58
tion; stipulation – oral solemn act; bringing an action, testament); as a privilegi-

um was granted to Latins in order to support their trade with Romans;
• testamenti factio; a right to participate in the making of a last will, either as a tes-
tator or as a witness a testament of a specific person and also it means the
capacity to be made a beneficiary;
• connubium; a right to enter into the civil marriage (matrimonium iustum), which
was originally limited only to patricians; Lex canuleia (445 B.C.) permitted civil
marriage between patricians and plebeians.
In the field of public law had Roman citizens these rights:
• a right to appeal against the death sentence to the whole Roman community
(populus Romanus);
• ius suffragii; a right to vote in public assemblies; women had not this right;
• ius honorum; a right to stand in a public Office, i.e. magistracy (praetor, censor,
consul, aedil); women had not this right;
To the basic duties of Roman citizens belonged a military service in legions and
payment of taxes.
Acquirement of the Roman citizenship depended on following circumstances:
• principle of personality, and
• status depending on birth,
• formal act of manumission from slavery, or
• special grant.
The child in principle took the status of its mother. As a consequence of the rule:
„mater semper certa est“ („the mother is always certain“ - Paulus, D. 2,4,5) a child was
born a Roman citizen if its mother has been a Roman citizen at the time of a child´s
birth. But in the case of a Roman civil marriage (matrimonium iustum) was applicable
a rule, that the child took the status of its father in the time of conception.
The another mode of acquirement of the Roman citizenship was a manumission
from slavery by any formal mode, i.e. in accordance to Roman civil law. As a special priv-
ilegium could be acquired a citizenship in the individual case (as a reward for special
services to Rome, to veterans, to magistrates from non-citizen communities) or in the
case of a certain community of foreigners as a grant of citizenship. A woman-foriegner
could acquire a Roman citizenship only by entering into the Roman civil marriage with
a male - Roman citizen.
b) Foreigners (peregrini)
The legal position of the foreigners was based on their own law with regard to
the principle of personality (the law order of the state is applicable only to its citizens).
Some communities concluded a quasi-international convention with Rome (foedus),
hence, they were called „allied cities“ (civitatis foederatae). These cities (communities,
nations) were free from taxes and they had a possibility to use their own law. In a case,
that any state had no foedus with Roman state, the citizens of that state were in a posi-
tion of an enemy (hostis), if they were located on the territory of Roman empire. With
59
regard to above mentioned existed following categories of foreigners:

• cives sine suffragio - the inhabitants of municipia, being of foreign blood and
language, were without the public rights of Roman citizenship (but they had
ius suffragii); they had ius commercii, ius connubii and testamenti factio; to this
inhabitants belonged Latini prisci („ancient“ Latins), which were allied to Rome
in the Latin league. In the year 338 B.C. Latini prisci were given full Roman citi-
zenship;
• dediticii (nullius certae civitatis cives); these inhabitants are described by Gaius:
Gai. Inst. 1,14: Gai. Inst. 1,14:

Vocantur autem peregrini dediticii hi, Those foreigners are called deditied,
qui quondam adversus populum Roma- who, having formerly taken up arms and
num armis susceptis pugnaverunt, deinde fought against the Roman people after-
victi se dediderunt. wards have been conquered and have
surrendered at discretion.
• peregrini; peregrines were free inhabitants of foreign territories, which were

not Roman citizens nor Latins; they were subject to their own municipal law;
the rights of Roman citizens were occasionaly granted them, either as a right
to a community or to individuals; in the relations with Romans law of nations
was the system of norms, which were applied to them. And peregrines, living
within the boundaries of Roman empire also acquired right to a Roman citizen-
ship in 212.
This condition existed until 212 A.D., when Emperor Antonius Caracalla (emperor
from 198 to 217) granted the right to a citizenship to all inhabitants of the Roman em-
pire, except the dediticii.
Ulp. D. 1,5,17: Ulpian, D. 1,5,17:

In orbe Romano qui sunt ex constitu- According to a Constitution of the
tione imperatoris Antonini cives Romani Emperor Antoninus, all those who were
effecti sunt. living in the Roman world were made
Roman citizens.
4. Marriage in Roman law
4. 1. Marriage as a private matter with legal consequences
Marriage (matrimony) in Roman law was a social reality, which was not stricto sensu
a juridical act. It was a social fact with certain legal effects (consequences). As a lawyer
Modestinus describes (D. 23,2,1), it was “the union of a man and woman, a partnership
for life, involving divine as well as human law.” From the above-mentioned resulted, that
the preferred aim of marriage was a common life and the basis for legitimate children.
60
Roman matrimony was strictly monogamic. It was forbidden to marry a second time
while a first marriage was in effect.
4. 2. Formal requirements of marriage
a) Certain age
The marriage was forbidden until the betrothed reached puberty. To ascertain the
right time, the couple originally had to be physically examined until this procedure
was replaced and official age limits were introduced. According to these, females had
to have reached the age of twelve, males the age of fourteen, this being the common
normal age at which the necessary physical capacity is developed, thus, male or fe-
male, which were not physical capable (castratus), could not enter marriage.
A Roman citizen was considered after attainment of puberty. If he or she married
before, thus lacking legal capacity, this marriage was considered a voidable transac-
tion coming into force only with reaching sexual maturity.
b) Conubium
Only Roman citizens could enter into the marriage according to Roman law, or else
the people who had been endowed with conubium, i.e. the special right for foreigners
granted in individual cases to enter into the marriage with a Roman citizen. A marriage,
where one or both lacked conubium, was ruled by the law of nations (ius gentium).
c) Consent
The law order required to a validity of a marriage an intention to enter marriage

(affectio maritalis), which was manifested by a matrimonial consent, that they regard-
ed them as a man and wife. This consent could be proved by various ways, e.g. that
couple had undergone a traditional Roman marriage ceremony, or if the couple gave
a matrimonial vow in the presence of special witness (auspex). The legally important
moment was a deductio in domus mariti (leading into a husband´s home).
4. 3. Impediments of marriage
a) Status
During era of the Roman republic two major kinds of social rank can be distin-
guished: plebeians and patricians. The first represented the rank of most people, the
61
“plebs”, the latter consisted of the successful nobility who clung to their power. Plebe-
ians and patricians could not intermarry with regard to the Laws of the Twelve tables
(Table XI, 1) until the lex Canuleia (published in the year 445 B.C.) allowed marriage
between them.
b) Religious reasons
The Vestal virgins could not enter marriage and if they lost their virginity, they were
condemned do the death. Later, in the age of christian emperors, the number of im-
pediments in this category increased in (monks, priests). The marriages between chris-
tian and jew were also prohibited.
c) Consanguinity
Marriage was prohibited for persons which were in the certian blood relation. The
lineal ascendents and descendents could not enter marriage. Also collaterals could
not enter marriage, if at least one of them was only one degree removed from the
common ancestor, i.e. uncle and niece, aunt and nephew and, of course, brother and
sister, as Gaius writes:
Gai. Inst 1,61: Institutes of Gaius 1,61:

Sane inter fratrem et sororem prohibi- Marriage is indeed prohibited be-
tae sunt nuptiae, sive eodem patre eadem- tween brother and sister, whether they
que matre nati fuerint sive alterutro eorum: are born of the same father or mother or
Sed si qua per adoptionem soror mihi esse merely of one of these parents in com-
coeperit, quamdiu quidem constat adop- mon; but although legal marriage can-
tio, sane inter me et eam nuptiae non pos- not take place between me and my sis-
sunt consistere; cum vero per emancipa- ter by adoption as long as the adoption
tionem adoptio dissoluta sit, potero eam continues to exist, still if the adoption is
uxorem ducere; sed et si ego emancipatus dissolved by emancipation I can marry
fuero, nihil inpedimento erit nuptiis. her, and if I should be emancipated, no
impediment to the marriage will exist.
Marriage between a child of divorceéd wife and her later husband was prohibited.
A marriage did not become forbidden ex post facto.
As adopted relatives were considered in the same line as blood relations, adoption
marriages among them were also prohibited. Affinity effected a prohibition of mar-
riage only in the direct line.
d) Other impediments of marriage
High provincial magistrate could not enter marriage with a person of this province,
unless they had been betrothed before he held the office. There was also prohibited
a marriage between a tutor or curator and a person, which was or had been his ward.
62
Due to moral grounds emperor Augustus established a prohibition of marriages

between senators and prostitutes, procurers and actors. Modestinus writes about it:
Mod. D. 23,2,42 pr.-1:. Mod. D. 23,2,42 pr.-1:

Semper in coniunctionibus non solum As far as marriages are concerned,
quid liceat considerandum est, sed et quid it is always necessary to consider not
honestum sit. just what is lawful but also what is de-
1. Si senatoris filia neptis proneptis lib- cent. If the daughter, granddaughter, or
ertino vel qui artem ludicram exercuit cui- great-granddaughter of a senator mar-
usve pater materve id fecerit, nupserit, nup- ries with a freedman, or someone who
tiae non erunt. was an actor, or whose father were ac-
tors, the marriage will be not valid.
4. 3. Legal effects of marriage
The legal effects of marriage depended on the fact, if the marriage was “free” (mat-
rimonium sine manu) or “strictly” (matrimonium cum manu). In the second case, a wife
became subordinated under the matrimonial power of her husband.
Marriage cum manum conventione effected a fundamental change in the wife’s le-
gal status. She left her former family and became part of her husband’s household and
family. Her former paterfamilias completely lost power over her, his paternal power”,
any possibly existing guardianship expired as well as any agnatic relations within her
former family. As a legal consequence the woman lost her hereditary rights within the
former family.
A woman, which entered into marriage received the status of “a wife”, (honor mat-
rimonii), which distinguished her from being a concubine. She took on her husband’s
place of residence and was considered legal resident of the municipality to which her
husband belonged. Furthermore, marriage effected affinity and its ensuing impedi-
ments to marriage.
A wife was held in high esteem, a fact which effected an equally high self-esteem
in this role. She was considered the centre of the family, “ruling” the household, bear-
ing and raising children, thus giving meaning to the position of a respectable wife.
The effects of marriage regarding proprietary interests differ according to the var-
ious kinds of marriage. First and foremost, it has to be differentiated between a mar-
riage which led to manus and a marriage which did not.
The latter had no effects on the couple’s property, whatsoever. Their respective
means were kept separately, each spouse was liable only for his or her own debts. The
husband gained no control over his wife’s property.
A manus, however, effected consequences also with regard to the property.
Everything what a wife possessed was transferred to her new husband with speaking
the wedding vows. What is more, the wife was even bound to deliver a dowry (dos),
either through her pater familias or her own means on condition of a marriage which
was admitted by civil law.
63
4. 4. Divorce of a marriage
a) Reasons for divorce
Romans perceived divorce as a natural institute and it could be easily gained dur-
ing the pre-classical and classical period. Only during the reign of Augustus there were
strict limits to it as will be shown later. Therefore the following exposition refers to the
time before that era.
In the times of the ancient kings as well as in the republican era divorce was a nat-
ural, common right. Emperor Alexander Severus gave an principle (Cod. Iust. 8,38,2):
“Libera matrimonia esse, antiquitus placuit” (“antiquity agreed that marriage should be
without compulsion“). The right to get a divorce could not even be ruled out by con-
tract or be made more difficult by contractual penalties. According to the principle of
freedom of divorce no reasons had to be given in order to get divorced.
It can be supposed, however, that most divorces were sought for good reason
(magna causa) as any other idea seems quite out of touch with reality. Divorce for no
reason at all has most likely been highly exceptional, especially since it led to open
disapproval for moral reasons and usually caused sincere social disadvantages.
On the other hand, a divorce for good reasons endowed the husband with great fi-
nancial advantages. If his wife as at fault, he could keep one sixth of the original dowry
for each child, while otherwise he had to give back the whole sum to his divorced wife.
The sum he could keep was limited to one half of the dowry, though, notwithstanding
a greater number of children. Only in case of his wife‘s adultery the husband could
keep another sixth of the dowry.
b) Legal ban of divorce concerning the “flamen Dialis”
The priest of Jupiter (flamen Dialis) was one of the three highest priests in Rome.
The others were the “flamen Martialis”, the priest of Mars, and the “flamen Quirinalis”,
the priest of Quirinus.
The flamen Dialis had to be the offspring of a confarreatio and could marry himself
only by confarreatio. His marriage could not be dissolved and was the foundation for
his office as flamen. In case his wife died, he even had to retire from his office.
The flamen‘s rank as well as the emphasis on the sacred confarreatio resulted in
a legal ban of divorce, which stayed in effect even if there had been serious reasons.
Historians know of only one exception, since a flamen Dialis managed to get divorced
under the express consent of Emperor Domitianus.
c) Divorce as a will of both parties
At first, a wife never had the right to seek a divorce from her husband. Only he
could dissolve a marriage.
Nevertheless, the wife could seek a consent with her husband thus making divorce
64
a mutual aim. If both had reached a consent, no other means were necessary to get
divorced than to mutually declare the divorce. Such uncontested divorces were not
uncommon.
Outwardly a divorce could be perceived by the ensuing formal splitting up of the
spouses: Their cohabitation ended, a temporary split-up was insufficient.
All in all it is noteworthy, that at least in an uncontested divorce a wife under matri-
monial power (manus) could express her own will with regard to divorce and even had
a right to participate.
d) Unilateral divorce
In ancient law only the husband or his substitute in power was allowed to declare
a unilateral divorce thus dissolving his marriage, while a unilateral divorce initiated by
a wife was completely impossible. The practice of unilateral divorces was based on
the repudiation (repudium) of a wife who had committed adultery or other serious
offences. This act was called “repudium” an still is the technical term for a declaration
of divorce today.
The correct words for a declaration of divorce (repudium) are said to have been
written down as early as the Twelve tables. The words (formulae), which were used to
express a will to repudiation are as follows:
„exi“ („come out“), or
„i foras“ („away“), or
„baete foras” (“go away”), or
„tuas res tibi habeto” (“take what belongs to you”)
Although these formulae and actions were typical for divorces, it is most probable,
that such formal requirements never existed. Having power over his wife, a husband
was allowed to repudiate his wife from his family by divorce any time. However, these
rules were changed in the republican era.
From then on the wife, too, had the right to dissolve her marriage by a unilateral
declaration of divorce in presence of her husband or his substitute in power. This was
rather revolutionary, the wife still being under her husband‘s power in a manus. The
husband´s supremacy, however, was seriously weakened with regard to marriage and
divorce.
Naturally, in marriages without a manus there were no limitations with regard to
divorces which could have discriminated against the wives. Lacking the manus, these
marriages could be dissolved righteously by unilateral declarations of divorce by ei-
ther spouse, husband or wife.
e) Legal consequences of divorce
Divorce and release of the wife from his manus placed an obligation on the hus-
band to return the dowry (dos) to his former wife since its purpose was to provide for
the wife after the dissolution of her marriage – either by her husband´s decease or by
divorce.
This obligation was even recoverable by law, either an actio ex stipulatio or an actio
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rei uxoriae. The first enforced an stipulation of return which had been agreed on hand-
ing over the dowry in the first place.
The actio rei uxoriae was a special kind of law suit which had been created only
for the purpose of recovering the dowry. It was based on the principle of in bonum
et aequum, which meant that the wife should get back the worth of the dowry in the
same kind of things she had brought into marriage with her. This principle follows the
ideas of reasonableness and fairness.
The origin of this kind of law suit is unknown. It is supposed, though, that it was
applied in cases in which the wife was divorced without fault. This seems reasonable
because otherwise she would have been without any provision although she had not
been to be blamed for the divorce.
The wife had a right to get back her dowry herself, if she was not under the pater-
nal power any more. In all other cases whoever had power over her was entitled to the
return of the dowry; that person, however, needed the wife´s consent in order to bring
an action. The Romans called that adjuncta filiae persona. A daughter did not have to
give her explicit consent, it was sufficient if she did not explicitly disagree with her
father‘s bringing about the action. Furthermore, a daughter was not allowed to refuse
her consent without good reason.
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Chapter V
THE LAW OF THINGS
1. Concept
Special concept of “the Law of Things” couldn’t be found within the sources of Ro-
man law. Its character and content could be derived from the concept of relationship
between the right and action and in a broader sense from the character of an absolute
dominion of a man – head of the family (pater familias) over persons subordinated to
him which was manifested through absolute rights of the family and property nature.
Out of these rights Romans put into the realm of the law of things those rights that had
a property nature. These rights are characterized by being applicable against every-
one (erga omnes) and being protected through an action in rem.
1.1. Subject of the Law of Things
The subject of the Law of Things is the property (patrimonium) and things belong-
ing into it. Things in the basic sense could be (Gai. Inst. 2,13-14; D. 1,8,1,1):
a) material things (res corporales), i.e. things that could be touched and that could
be subject of a property right (dominium),
b) proprietary rights different from the property right/ownership (res incorporales),
i.e. things that couldn’t be touched, e.g. servitudes (iura praediorum), rights of inher-
itance (ius successionis), usufruct (ususfructus), obligations (obligationes).
1.2. System of the Law of Things
Real rights are being divided into two basic categories:

a) real rights to one’s own thing (iura in re propria) – representing an absolute do-
minion over a thing; property rights belongs into this category:
• under the civil law (dominium ex iure Quiritum), protected through civil law ac-
tions and
• praetorial ownership (in bonis esse – so-called bonitary ownership), protected
through a praetorial action actio Publiciana, in which the praetor for the pur-
poses of evidence pretend that the prescriptive period of the possessor has
lapsed and thus puts him into the position of a owner ex iure Quiritium during
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legal suit;
b) real rights to somebody else’s thing (iura in re aliena) – authorizing its holder to
a limited authority over somebody else’s thing:
• servitudes (praediorum servitutes) – the right of use of somebody else’s land,
• right of enjoyment (ususfructus) – the right of use of somebody else’s fruit-bear-
ing thing and to enjoy its fruits,
• right to use (usus) – the right of usage of somebody else’s thing,
• hereditary tenancy of land (emphyteusis),
• hereditary right to a building (superficies),
• lien (fiducia, pledge, mortgage).
1.3. Actio in rem
Right to a thing (ius in rem) as an absolute subjective right was protected through a
real action (actio in rem) through which the plaintiff enforces that a specific thing is his
or enforces a specific other exclusive right operating against everybody. Real actions
under the civil law were called vindicationes (Gai. Inst. 4,5). According to the type of real
right they were protecting they are being termed as:
• rei vindicatio (action enforcing dominion over a thing as a subject of owner-
ship),
• vindicatio servitutis (action enforcing comity of a praedial servitude),
• vindicatio ususfructus (action enforcing comity of a personal servitude),
• vindicatio pignoris (action of praetorial law protecting the right of a pledge for
handing over the pledged thing).
In classical Roman law the essence of what is the plaintiff enforcing through an ac-
tion in rem is his assertion of an absolute and exclusive dominion over a thing against
everyone (whether in full or limited scope). Since with the right to a thing there is no
bearer of a subjective duty towards the entitled, as a result the action formula does not
name the defendant and it is assumed that if the plaintiff proves his right the violator
has to give way so that the holder of the real right can exercise complete dominion
over the thing.
2. The term „thing“
In the narrow sense and from the positive viewpoint a thing according to Roman
law is such a material body (res corporales), which is as a separate object capable of
being a subject of an absolute subjective right within the private law. In a broader
sense, it also immaterial things (res incorporales), though existing only legally and not
physically.
Thus defined things are subject to trading (res in commercio) and an individual may
acquire their ownership or limited real rights to them.
The negative definition of things states that outside this category, i.e. excluded
68
from trading (res extra commercii) are:

a) public things (res publicae), i.e. those that were designed for public use (streets,
ports, theaters, spas, state slaves) or those that are shared by all in accordance
with natural law (air, rivers, sea and seashores within the borders of the Roman
Empire); public things are not a property of any particular individual but are
owned by everybody collectively;
b) things of divine law, i.e.
• things consecrated to the divine cult (res sacrae) – temples and cult objects
which were publicly consecrated; their value couldn’t be expressed in mone-
tary terms (Ulp. D. 1,8,9,5);
• things consecrated to the cult of the deceased (res religiosae) – graves of Ro-
man citizens as well as slaves;
• sacred tings (res sanctae) – city walls, battlements and gates.
Things of divine law are “in the ownership of no one” (in nullius bonis sunt –
Marc. D. 1,8,6,2).
2.1. Component of a thing
Component of a thing is not a thing in legal sense. It could be present within a

singular or a compound thing.
a) A singular thing
Thing consisting of components that are not independent is referred to as a sin-

gular (simple) thing because its components form an organic unity created through
connecting (accessio). Connecting may occur through:
• welding of metal components (ferruminatio),
• taking roots of a tree or other plants into the ground (implantatio),
• sowing of seeds into the ground (satio),
• constructing a building with foundations fixed with ground (inaedificatio).
The real right to originally independent things (components) terminate after the
connecting takes place.
b) A compound thing
If the thing is made up of separate components, it is a compound thing. It is created

through a mechanical connecting of separate components, which maintain their es-
sence. Although its components may still be subject to real rights of different individu-
als, outwardly only the owner of a compound thing acts in legal relations, as long as the
connection of individual components lasts. Any prospective real rights to components
could be recovered after their separation through an action actio ad exhibendum.
69
2.2. A collective thing
Singular things that are not materially connected, but are united in pursuit of a
common economic interest (for which they are intended), they constitute a collective
thing. Subject of a real right, even in case of different holders, could fundamentally
be only individual pieces since the whole is subject to change of individual (singular)
items. The whole is legally significant in case of enforcement of e.g. a right of enjoy-
ment (ususfructus) or of a herd of animals (vindicatio gregis), as indicated in the latter
case by Ulpianus:
Ulp. D. 6,1,1,3: Ulp. D. 6,1,1,3:

Per hanc autem actionem non solum By means of this action not only
singulae res vindicabuntur, sed posse etiam can specific property be recovered, but,
gregem vindicari Pomponius libro lectio- Pomponius, in the Twenty-fifth Book of
num vicensimo quinto scribit. Idem et de Passages, says that an action may be
armento et de equitio ceterisque, quae gre- brought for a flock, and also for a herd
gatim habentur, dicendum est. Sed enim of cattle, and for a stud of horses, as well,
gregem sufficiet ipsum nostrum esse, licet and it may be said for all other animals
singula capita nostra non sint: grex enim, which are kept together in droves. It is
non singula corpora vindicabuntur. sufficient if the flock itself belongs to
us, even though individual heads of the
same may not be ours, for it is the flock
which is claimed, and not the individuals
constituting the same.
2.3. Accessory
Legally separate thing which is determined by owner’s decision to be used for the
main thing as its accessory is not a component and therefore could be a subject of a
real right. Since the purpose of things which form the accessory (usage in accordance
with their economic goal) only becomes apparent in connection with the main thing,
their economic servility comes to the fore (e.g. key and lock). Consequently an acces-
sory suffers the legal fate of the main thing, unless it is proved otherwise or unless the
thing constituting an accessory has its own economic purpose (e.g. a barrel).
2.4. Fruits
Fruits (fructus) are a regular, recurring economic yield of fruit-bearing thing. The
essence of the fruit-bearing (parent) thing does not change and retains its economic
purpose as well.
Child of a slave is not a fruit, because child (even in regards to a slave, i.e. a thing in
the legal sense) cannot be regarded as a thing with an economic purpose. Meat and
fur are also not fruits, because they are not a regular and recurring yield.
As long as the fruit is connected to the fruit-bearing thing, it is not a separate thing
70
thus it is not an independent subject of real right. Through separation from a parent
thing fruits become things to which a subjective right could be obtained.
As fruits under the Roman law were considered:
a) Natural fruits (fructus naturales)
This category included organic yields of a parent thing (e.g. fruits, grain, flowers
and leaves, milk, eggs, animals’ young, wool from animals) and yields of inorganic na-
ture (minerals, e.g. coal, ore).
b) Civil fruits (fructus civiles)
The term civil (legal) fruits denotes a regular economic yield of a legal relationship
(loco fructum) in the form of a monetary improvement, e.g. lease, tenancy, usage of
work of somebody else’s slaves.
2.5. Fungible and infungible things
A thing, which it is possible within the legal trade to replace (substitute) by another
piece of a thing of the same kind, is referred to as a fungible thing. In the legal rela-
tionship they are defined by weighing, counting or measuring (Paul. D. 12,1,2,1). The
criteria determining a subjective right, or an obligation are type, quality and quantity.
Included in this category were mainly wine, grain, money, flour. Since the species does
not perish obligation of the debtor who is burdened with the risk (periculum) cannot
terminate.
A thing, which is determined within a legal relationship through specific charac-
teristics that distinguish it from others of the same species, is known as an infungible
thing. Subjective duty is bound to satisfaction through the same thing, i.e. its delivery,
respectively its return. Thing determined through specific characteristics is e.g. a spe-
cific cow, a specific slave or a specific table. The nature and degree of individualization
of the thing is governed by the will of the parties, from which subsequently derives the
nature of the subjective right, respectively the subjective duty within that particular
contract. The risk of an accidental destruction, or damage of the thing determined
through specific characteristics is basically the burden of the owner of the thing.
2.6. Mancipable and non-mancipable things
The most important difference is related to the things mancipable (res mancipi)
and non-mancipable (res nec mancipi). This distinction is connected to singling out of
the economically most important and most valuable things of the Roman familia from
the property of patris familiae. These included:
• lands in Italy (urban as well as rural),
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• slaves,
• domestic four-footed animals designated for hauling and carrying of burdens,
• rural praedial servitudes.
An essential element with this division is a different way of transfer of ownership in
trade, which with the mancipable things had to be done through mancipatio or in iure
cessio, i.e. formal legal acts. This feature makes the transfer of title character of public-
ity and enhances the protection of the rights of third parties in business relationships.
All the other things were non-mancipable and the transfer of title for them could
have been made through an informal legal act (traditio) with consideration to the na-
ture of the thing (e.g. traditio longa manu, traditio brevi manu). Division of thing to the
mancipable and non-mancipable was abolished by the emperor Justinian; as a result
mancipatio as a special mode of transfer of ownership. Differences concerning the
mancipable and non-mancipable things could be found in the Gaius’ Institutes:
Gai. Inst. 2,19-22: Institutes of Gaius 19-22:

19. Nam res nec mancipi ipsa traditione 19. Things which are not saleable
pleno iure alterius fiunt, si modo corporales by mancipation become the property
sunt et ob id recipiunt traditionem. of others absolutely by mere delivery; if
they are corporeal and on this account
are capable of being delivered.
20. Itaque si tibi uestem uel aurum uel 20. Therefore, if I deliver to you a gar-
argentum tradidero siue ex uenditionis ment, or some gold or silver, either by
causa siue ex donationis siue quauis alia way of sale or donation, or for any other
ex causa, statim tua fit ea res, si modo ego reason, the property immediately be-
eius dominus sim. comes yours, provided I am the owner of
the same.
21. In eadem causa sunt prouincial- 21. To the same class belong lands in
ia praedia, quorum alia stipendiaria, alia the provinces, some of which we desig-
tributaria uocamus: stipendiaria sunt ea, nate as taxable, and others as tributary.
quae in his prouinciis sunt, quae propriae Those are taxable which are situated in
populi Romani esse intelleguntur; tributar- the provinces and are understood to be
ia sunt ea, quae in his prouinciis sunt, quae the property of the Roman people; those
propriae Caesaris esse creduntur. are tributary which are situated in the
provinces and are considered the prop-
erty of the Emperor.
22. Mancipi uero res sunt, quae per 22. On the other hand, things suscep-
mancipationem ad alium transferuntur; tible of sale are such as are transferred to
unde etiam mancipi res sunt dictae. quod another by mancipation, from whence
autem ualet mancipatio, idem ualet et in they are styled mancipable, and this has
iure cessio. the same validity as a transfer in court.
2.7. Divisible and non-divisible things.
Things, that could be divided without the loss of their integrity and economic pur-
72
pose, are divisible in the legal sense (e.g. piece of land, food, wood, coal). These things
even after the division retain their nature and the divided parts continue to retain their
value, which can be expressed as a proportion to the whole before the division (in the
form of a fraction or a percentage).
In the legal sense, the non-indivisible things cannot be divided without the loss
of their integrity and economic purpose. After their eventual division their nature as
well as value ceases completely (e.g. a broken vase, a destroyed statue, a cut-up the
painting). This category of things is significant mainly in relation with a co-ownership
and its dissolution.
2.8. Consumable and non-consumable things.
Things that through their usage for their own purpose are extinguished (con-
sumed) are called consumable (e.g. food, wood and coal as fuel, stone as building
material). If the thing can be used in accordance with its economic purpose repeatedly
and without loss of its value, the thing is non-consumable. If the value of the thing
through its use gradually and naturally decreases, such a thing is referred to as a wear-
able thing (e.g. clothing).
The importance of this distinction surfaces when defining an object of certain
contracts. Consumable things are defined generically as an object of the contract
(e.g. loan) and consequently is defined the obligation of the debtor. Non-consuma-
ble things are being defined through specific characteristics (e.g. as with the custody,
lending, or leasing of a thing) and from it derives the obligation of the debtor, content
of which is to return the same thing.
3. Ownership
3.1. The term “ownership”
Concept of ownership in the Roman law is based on the position of head of the
family (pater familias). From under his absolute power over everything in the house
(manus) were gradually set aside material things and power over was termed as do-
minium ex jure Quiritium, which was the only form of ownership under the civil law and
it took the most prominent place within the private law sphere. Conceptual definition
of ownership is best expressed by its attributes.
The attributes of the Roman ownership are:
a) Direct dominion over the thing
Within the system of real rights ownership is at its peak. There is no other real
right which would correspond with the content of ownership. Essential though is the
mode of legal protection of ownership. Within the formula process the action to pro-
73
tect ownership in the intentio merely states the existence of the plaintiff’s ownership
and contains no so-called claim that had developed only later within the construct of
ownership protection.
b) Exclusivity of ownership
The construct of ownership allowed the owner to exclude everybody else from im-
pacting on the thing, i.e. it operates erga omnes. This led to the situation that the only
way in which participation of several persons on ownership was the co-ownership
existing only in ideal proportions.
c) Unlimitedness (universality) of ownership
It is characteristic for the ownership that only it concentrates in itself all the privi-
leges that grant the owner different options of use of the subject of ownership. These
privileges create an integral unity in that sense that they operate each in its own par-
ticular direction. In addition to the unlimitedness in the real-right sense, the ownership
is unlimited in terms of time, i.e. in terms of its duration. Other real rights (real rights to
somebody else’s thing) were in their nature basically just limitation of the ownership,
they derived from it, and therefore they didn’t have the nature of independent rights.
The limitation of the ownership and with it associated creation of limited real rights of
another person to his thing was strictly up to the decision of the owner (unilaterally in
case of servitudes or pursuant to an agreements, e.g. in case of a lien). If the limit was
terminated, all ownership privileges were returned to the owner automatically. This
phenomenon is known as elasticity (flexibility) of ownership.
3.2. Subject of ownership
Subject (holder) of ownership could have been natural (physical) persons and le-
gal entities. Roman State was also a subject of ownership, especially in the public law
sphere, especially ownership of public land (ager publicus). If the state exceptionally
entered into a private-law relationship (i.e. relationship subject to the jurisdiction of a
court), then the subject of ownership was the Treasury (aerarium) and within the legal
relationship the state was represented by an officer (magistratus). Things owned by
the state couldn’t be owned by citizens. Subjects of ownership were also other legal
entities (e.g. municipalities, villages, societies).
A natural person is capable to be a subject of ownership in accordance with the
natural law. But in Rome after the decline of gender arrangements the nature of ag-
nate family assumed that the subject of ownership could be only pater familias; since
he was the only one within the agnate family a person sui iuris. Outside the agnate
family, however, even women sui iuris (those who were not under the paternal or mar-
ital power) could have been subject of ownership. Persons who were alieni iuris and
slaves couldn’t acquire any subjective right for themselves and therefore they couldn’t
be holders of ownership. Foreigners couldn’t acquire ownership ex iure Quiritium (do-
74
minium ex jure Quiritium), only ownership under their domestic law, or the jurisdiction
of the alien praetor (ius gentium).
3.3. Object of ownership
The object of ownership in the private law could have basically be those things
that were not excluded from trade in the legal sense. The object of the ownership ex
iure Quiritium as a real estate could have been only Italian land (fundus italicus), not the
land in the provinces which was in the ownership of the state. If a Latin under his right
to trade (ius commercii) had acquired Italian land, he acquired ownership only accord-
ing to the law of his Latin municipium. Foreigners (peregrini) were allowed to acquire
ownership of Italian land only toward the end of the republic, and even then only
under the alien law (ius gentium). Italian land was not taxed. Also slaves were objects
of ownership.
3.4. Types of ownership
a) Ownership ex iure Quiritium
The civil law (ius civile) provided legal protection only for the ownership ex iure
Quiritium. This type of ownership could have been acquired only by Roman citizens
and it was characterized by a strict formalism which is typical for ancient period of
Roman state. The formality of the ownership ex iure Quiritium surfaces with transfer of
mancipable things when it was necessary to make the transfer through a formal legal
act – mancipation.
b) Praetorial (bonitary) ownership
Praetor as a holder of imperium within his jurisdiction had protected in certain

defined situations civilian possessors against an owner ex iure Quiritium by paralyzing
civil-law effects of certain legal acts in the interest of fairness and decency. Therefore
Roman citizens had, in accordance with this practice, two types of ownership availa-
ble to them (duplex dominium, Gai. 1.54) – ownership ex iure Quiritium and bonitary
ownership. That is to say that praetor in such a situation was not competent to bestow
protection through a civil action, but a situation worthy of protection he termed as “is
a property of” (in bonis esse). The other person, who has an ownership ex iure Quiritium
to the same thing, has according to the praetor nudum ius Quiritium.
Acquisition of bonitary ownership could have happened especially in these in-
stances:
• transfer of mancipable thing only through an informal mode (traditio) based on
accepted legal cause (ex iusta causa),
75
• acquisition (transfer) of a thing based on a legal cause from a non-owner who

has additionally become an owner.
During the suit of a plaintiff who is an owner ex iure Quiritium and a defendant who
is a bonitary owner the praetor granted an exception of a sold and transferred thing
(exceptio rei venditae et traditae) and if the defendant proved the exception, he was ac-
quitted. Through lapse of prescriptive period he acquired ownership ex iure Quiritium.
If the thing was taken away from the bonitary owner by anyone, he was granted
by the praetor the action actio Publiciana, which was effective against everyone (erga
omnes). In this action the praetor for the purposes of the suit pretended in favor of
the bonitary owner (civil possessor) that the prescriptive period has elapsed and if the
possessor (bonitary owner) proved to the judge all the other presumptions of acqui-
sition of the ownership ex iure Quiritium through prescription (usucapio), the bonitary
owner won the suit. Through lapse of prescriptive period he acquired ownership ex
iure Quiritium.
Gradually the praetor granted legal protection in other situation when the posses-
sor had the thing in property (in bonis res esse):
• occupation of a derelict thing (during the classic law period),
• by the praetor granted possession of inheritance (bonorum possessio) with a
effect cum re,
• praetorial induction into bonitary ownership of a neighbor’s building in case of
danger (missio in possessionem),
• purchase of the whole property at an auction.
c) Provincial ownership
Land in the provinces was the property of the Roman state (i.e. of the Roman peo-
ple or the emperor). After the seizure the state had left it in possession of provincial
population or had granted its possession to the Roman citizens. They had acquired a
status similar in its content to the ownership ex iure Quiritium and an analogous legal
protection. For the provincial land a benefit called stipendium (land in the senatorial
province) or tributum (land in the imperial province) had been paid to the Treasury.
c) Ownership of foreigners
In suits between a Roman citizen and a foreigner or between two foreigners that
were conducted on within the Roman empire the alien praetor (praetor peregrinus),
who was competent to adjudicated in these suits basically absolutely freely, could take
into consideration ownership of the foreigner who was a party to the suit.
3.5. Acquisition of ownership
Originally, the oldest Roman law has always seen the acquisition of ownership from
the predecessor as an emergence of a new right, i.e. not as a transfer of rights. Only
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classical Roman law developed a construct of a singular succession into ownership of

the predecessor. Acquirer of the ownership of a thing obtains the thing with the same
rights and those burdened with the same burdens as it was with the predecessor.
Person who is an alienor must be the owner of the thing since as states Ulpianus
(D. 50,17,54): “nemo plus iuris ad alium transferre potest, quam ipse haberet“ (nobody can
transfer to another more rights than he has himself). Furthermore the alienor must be
entitled to dispose with the thing (take legal action with it) and he must be competent
to act legally. Eventual limitation of possibility of alienation of the thing does not im-
pact on the transfer of ownership, it only constitutes an eventual responsibility of the
alienor for eviction (i.e. responsibility for dispossession of the thing in the legal suit)
and the effects are present only between the parties of the transfer.
Important distinction is the mode of acquiring of the ownership. Theory of the
pandect law (19th century) developed a theoretical concept of an original and derived
mode of acquiring ownership, which was taken over by the modern civil law.
3.5.1. Original mode of acquisition of ownership
If the acquirer does not derive his ownership of the thing from the predecessor, he
acquires through an original mode of acquisition of ownership. Acquisition is being
made through an unilateral legal act of the acquirer. It is irrelevant that the thing has
sometime in the past been a subject of ownership of someone else; it is essential that
at the time of acquisition the ownership is being created through an unilateral decla-
ration of will of the acquirer. Among these modes the following circumstances (causes)
were included:
• occupation,
• discovery of a treasure,
• fusion,
• commingling/commixtion,
• mingling,
• processing.
a) Occupation
Occupation as a mode of acquiring of ownership presupposes following factual

circumstances:
• grasping of a thing into possession (adprehensio),
• will to retain the thing (animus possidendi),
• the thing is at the moment of occupation without a dominus, i.e. it does not
belong to any one (res nullius).
It means that through an unilateral grasping of nobody’s thing in conjunction of
declaration of will to retain it originates the ownership. Factual circumstances of the
occupation and the reason for its recognition to be found in the natural law is stated
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by the lawyer Gaius:
Gai. D. 41,1,3, pr. Gai. D. 41,1,3, pr.

Quod enim nullius est, id ratione natu- For what does not belong to anyone
rali occupanti conceditur. by natural law becomes the property of
the person who first acquires it.
Gai. Inst. 2,66: Gai. Inst. 2,66:
Nec tamen ea tantum, quae traditione Property which becomes ours by de-
nostra fiunt, naturali nobis ratione ad- livery can be acquired by us not only by
quiruntur, sed etiam occupando ideo res natural law, but also what we appropriate
adquisierimus, quia antea nullius essent; by occupancy as previously unowned;
qualia sunt omnia quae terra mari caelo such as all things, which are captured on
capiantur. land, or in the sea, or in the air.
The object of occupation could have been only things that didn’t belong to any-
body. Those were in the Roman law considered to be:
• wild animals (ferae bestiae) living naturally free in the wild; the hunter acquired
ownership of the caught animals regardless of whether the land belonged to
him or not except for situations when the land-owner reserved the hunt for
himself. If the caught wild animal later fled the owner (disappeared from sight)
or was so distant that its re-capture would be difficult, the ownership was ter-
minated; to be wild animals were also considered fish, birds and bees (own-
ership of the bees was acquired through closing them in the hive - Just. Inst
2,1,13);
• abandoned things (res derelictae) - i.e. if the owner waived his ownership of the
thing through disposal of possession of the thing and declaration of will to let
it be;
• newly formed island at sea (insula in mari nata);
• things found on the seashore (res inventae in litore maris) – they may not, howev-
er, come from a wrecked ship;
• abandoned riverbed (alves derelictus);
• enemies‘ things in the Roman territory (res hostiles) – things of war opponents
and things of foreigners whose states didn’t have a contract of protection with
Rome in the moment of outbreak of war and their things were on the Roman
territory; this category did not contain spoils of war;
• abandoned, i.e. wild land (ager desertus) – during the post-classical period those
were mainly land on borders and that land that were abandoned by the owner
because he didn’t want to pay taxes; such land became ownership of that per-
son who had seized the land and was willing to pay taxes for it;
b) Discovery of a treasure
Circumstances constituting a discovery of a treasure (thesaurus) show small differ-

ences to occupation. Treasure was money or other valuable things that were hidden
78
for so long within another thing that it is not possible to remember whom did they
belong, i.e. who was their owner. Lawyers Paulus and Tryphoninus (Claudius Tryphon-
inus, turn of 2nd and 3rd century A.D.) about the treasure state:
Paul. D. 41,1,31,1: Paul. D. 41,1,31,1:

Thensaurus est vetus quaedam deposi- A treasure is an ancient deposit of
tio pecuniae, cuius non exstat memoria, ut money, the memory of which no longer
iam dominum non habeat: sic enim fit eius remains, so that it now has no owner.
qui invenerit, quod non alterius sit. Alio- Hence, it becomes the property of him
quin si quis aliquid vel lucri causa vel metus who finds it, because it belongs to no
vel custodiae condiderit sub terra, non est one else. On the other hand, if anyone,
Thensaurus: cuius etiam furtum fit. for the sake of profit, or actuated by fear,
with a view to its preservation, hides
money in the ground, it is not a treasure,
and anyone who appropriates it will be
guilty of theft.
Tryph. D. 41.1.63 pr.: Tryph. D. 41.1.63 pr.:
Si is qui in aliena potestate est Then- If anyone who is under the control of
saurum invenerit, in persona eius cui ad- another finds a treasure, it must be said
quirit hoc erit dicendum, ut, si in alieno with reference to the person for whom it
agro invenerit, partem ei adquirat, si vero is acquired that if the former finds it upon
in parentis dominive loco invenerit, illius the land of another, he will be entitled to
totus sit, si autem in alieno, pars. half of it; but if he finds it upon the land
of his father or master, the whole of it will
belong to the latter; (and only half, if it
is discovered upon the land of someone
else).
Ownership of the treasure was acquired by the finder in the moment of discovery
even without the occupation, if the treasure was discovered at his land. If the find-
er had discovered the treasure at another’s land, the emperor Hadrianus determined
(Just. Inst. 2,1,39) that if the finder discovered the treasure by chance, the landowner
will acquire ownership of half of the treasure from the moment of discovery, i.e. also
without occupation (ipso iure). If someone was deliberately searching for the treasure
on another’s land without permission and found it the treasure belonged to the land-
owner from the moment of discovery. Concealment of discovery was in the Roman law
considered to be a theft (delict under the civil law).
c) Fusion
Fusion (accessio) in the legal sense means extinction of an originally separate thing
by attachment to another thing (considered to be a main thing) into one unit, for as
long as the attachment lasts. The attachment may have occurred with a movable thing
with an immovable thing (i.e. land) and with two movable things.
If the attachment was between the movable thing and land that has no fixed
measured boundaries (ager arcifinius), there were these instances:
79
• silt to the land (alluvio),

• attachment of piece of land, which was brought by water to the land (avulsio),
• accruing of abandoned riverbed to the shore,
• accruing of an island emerged in the river to the shore land.
In attachment of a movable thing property to land, which has measured bound-
aries, i.e. to the land that does not have a river as a border (ager limitatus), there were
these options:
• grain sown into land (satio),
• planting of a plant into the land and its rooting (implantatio),
• erection of a building with firm foundation in the land (inaedificatio).
In these instances the Roman law the principle that surface gives way to the bot-
tom (superficies solo cedit) was applied. The effect of this principle is that the owner
of the main thing, which is in case of attachment of movable thing with immovable
always the land, becomes the owner of the whole. Ownership of the movable thing
gives way to the ownership of the land. The thing that was attached to the land be-
comes an integral part of the land and ceases to exist as a separate object of law and
it suffers the future legal fate of the land.
Regarding the attachment of a movable thing to an immovable thing Gaius in his
textbook of law states the following:

Sed et id, quod per alluuionem nobis Land acquired by us through alluvion
adicitur, eodem iure nostrum fit: per al- also becomes ours under the same law.
luuionem autem id uidetur adici, quod ita This is held to take place when a river,
paulatim flumen agro nostro adicit, ut aes- by degrees, makes additions of soil to
timare non possimus, quantum quoquo our land in such a way that we cannot
momento temporis adiciatur: hoc est, estimate the amount added at any one
quod uolgo dicitur per adluuionem id adici moment of time; and this is what is com-
uideri, quod ita paulatim adicitur, ut oculos monly stated to be an addition made by
nostros fallat. alluvion, which is added so gradually as
to escape our sight.
Praeterea id, quod in solo nostro ab Moreover, any building erected on
aliquo aedificatum est, quamuis ille suo our land by another, even though the lat-
nomine aedificauerit, iure naturali nos- ter may have erected it in his own name,
trum fit, quia superficies solo cedit. is ours by Natural Law, for the reason that
the surface is part of the soil.
Idem contingit et in frumento, quod in The same rule also applies to grain
solo nostro ab aliquo satum fuerit. which has been sowed by another upon
our land.
When attaching two movable things it is crucial which thing has retained its orig-
inal purpose after the attachment. That one was after the attachment considered be-
ing the main thing and its owner acquired ownership of the whole. Gaius in his Insti-
80
tutes states about the attachment of two movables:

Eadem ratione probatum est, quod It is settled by the same rule that
in cartulis siue membranis meis aliquis whatever anyone has written on my pa-
scripserit, licet aureis litteris, meum esse, per or parchment, even in letters of gold,
quia litterae cartulis siue membranis ce- is mine, because the letters are merely
dunt: itaque si ego eos libros easue mem- accessory to the paper or parchment;
branas petam nec inpensam scripturae but if I should bring an action to recov-
soluam, per exceptionem doli mali sum- er the books or parchments, and do not
moueri potero. reimburse the party for the expense in-
curred in writing, I can be barred by an
exception on the ground of fraud.
Sed si in tabula mea aliquis pinxerit If, however, anyone paints anything
ueluti imaginem, contra probatur: magis on a tablet belonging to me, as for in-
enim dicitur tabulam picturae cedere. cuius stance, a portrait, the contrary rule is
diuersitatis uix idonea ratio redditur: certe adopted, for it is said that the tablet is ac-
secundum hanc regulam si me possidente cessory to the painting; but a good rea-
petas imaginem tuam esse nec soluas pre- son for this difference hardly exists. Ac-
tium tabulae, poteris per exceptionem doli cording to this rule it is certain that if you
mali summoueri; at si tu possideas, conse- bring an action for the portrait as yours,
quens est, ut utilis mihi actio aduersum te while I am in possession of the same, and
dari debeat; quo casu nisi soluam inpen- you do not pay me the value of the tab-
sam picturae, poteris me per exceptionem let, you can be barred by an exception
doli mali repellere, utique si bonae fidei on the ground of fraud. But, if, you are in
possessor fueris. illud palam est, quod siue possession, the result will be that I should
tu subripueris tabulam siue alius, conpetit be granted an equitable action against
mihi furti actio. you, in which instance unless I pay the
expenses of the painting, you can bar me
by an exception on the ground of fraud,
just as if you were a possessor in good
faith. It is clear that if either you, or any-
one else should steal the tablet, I will be
entitled to an action of theft.
d) Commingling/commixtion
When have been mixed two powdery solid substances belonging to two different
owners based on their agreement and their separation is not possible because they
are indistinguishable, there exists an co-ownership to the mixture in proportion to the
ratio of values of the mixed things. If it was possible to separate the substances, each
owner retained his ownership to his substance since the substance has in spite of mix-
ing retained its integrity. If mixing (commixtio) occurred by an act of one without the
will (consent) of the other, there is no co-ownership but both retain their ownership.
81
Claiming (i.e. vindicating through actio in rem) was possible for each owner only for
that particular amount that corresponds with the value of his thing that was present
in the mixture:
Ulp. D. 6,1,5, pr.: Ulp. D. 6,1,5, pr.:

Idem Pomponius scribit: si frumentum Pomponius also says that where
duorum non voluntate eorum confusum grain belonging to two persons was
sit, competit singulis in rem actio in id, in mixed without their consent, each one
quantum paret in illo acervo suum cui- of them will be entitled to an action in
usque esse: quod si voluntate eorum com- rem for such an amount of the heap as
mixta sunt, tunc communicata videbuntur appears to belong to him: but, where the
et erit communi dividundo actio. grain was mingled with their consent, it
will then be held to be in common, and
an action for the division of property
owned in common will lie.
When have been mixed such substances which in view of their nature and proper-
ties could have been separated, the co-ownership did not exist, but each owner could
sue for delivery of his own substance. Also Ulpianus writes about this thus:
Ulp. D. 6,1,5,1: Ulp. D. 6,1,5,1:

... Sed si plumbum cum argento mix- ... Where, however, lead is mixed with
tum sit, quia deduci possit, nec communi- silver, for the reason that it can be sepa-
cabitur nec communi dividundo agetur, rated it will not become common prop-
quia separari potest: agetur autem in rem erty, nor can an action for the division of
actio. common property be brought: but an
action in rem will lie because the metals
can be separated.
However, when the result of mixing is such a mixture that the individual substanc-
es cannot be separated, but none of the substances loses its integrity (e.g. mixing cop-
per with gold creates an alloy), owners may sue according to their ownership shares
(vindicatio pro parte):
Ulp. D. 6,1,5,1: Ulp. D. 6,1,5,1:

... Sed si deduci, inquit, non possit, ut ... But he says that, where they can-
puta si aes et aurum mixtum fuerit, pro not be separated, as for instance, where
parte esse vindicandum: nec quaquam bronze and gold are mixed, suit for re-
erit dicendum, quod in mulso dictum est, covery must be brought in proportion
quia utraque materia etsi confusa manet to the amount involved; and what was
tamen. stated with reference to the mixture of
honey and wine will not apply, because
though both materials are mingled, they
still remain.
When occurs mixing of money of two different owners so that they couldn’t tell
which coins belonged to whom before the mixing, ownership was acquired by the
82
one who has mixed the money. The one, whose ownership was terminated by mixing
of the money, could only recover damages. In case the one who has mixed the money
did not do it in good faith (i.e. thief), the robbed one could use an action to a fine (actio
poenalis).
Javol. D. 46,3,78: Javol. D. 46,3,78:

Si alieni nummi inscio vel invito dom- When money belonging to another is
ino soluti sunt, manent eius cuius fuerunt: paid without the knowledge or consent
si mixti essent, ita ut discerni non possent, of the owner, it still continues to be his
eius fieri qui accepit in libris Gaii scriptum property. If it is mixed with other money,
est, ita ut actio domino cum eo, qui dedis- so that it cannot be separated, it is stated
set, furti competeret. in the Books of Gaius that it will belong
to the person who receives it; so that an
action of theft will lie in favor of the own-
er against him who paid the money.
e) Mingling
When mingled (confusio) two substances of two different owners and it were pos-
sible to separate them, each owner retained his ownership. When mingled two dif-
ferent substances so that they couldn’t be separated, ownership to the mingled sub-
stance was acquired in an original mode by whomsoever mingled the liquids, because
neither substance after the mingling has retained its integrity (e.g. in case of mingling
of honey and wine, as states Ulpianus):
Ulp. D. 6,1,5,1 Ulp. D. 6,1,5,1

Idem scribit, si ex melle meo, vino tuo He also says that if a mixture should
factum sit mulsum, quosdam existimasse be made of my honey and your wine,
id quoque communicari: sed puto verius, ut some authorities think that this also be-
et ipse significat, eius potius esse qui fecit, comes common property: but I maintain
quoniam suam speciem pristinam non the better opinion to be, (and he himself
continet. mentioned it) that the mixture belongs
to the party who made it; as it does not
retain its original character.
f) Processing
Processing (specificatio) means such modifying of a thing (material) through work

which leads to creation of a new thing. If someone treated other’s matter, there were
three different views among Roman lawyers on who acquires the ownership of the
new thing. The Sabinian School defended the position that the new thing belongs to
the owner of material (emphasis on substance), the Proculian School granted owner-
ship of the new thing to the person who processed the material (focus on form). Ac-
83
cording to the opinion, which was developed from the starting point of two previous-
ly stated opinions and which was stabilized, the new thing was acquired by the owner
of material when the thing could be put back into its original form. Where this was not
possible, ownership of the new thing was acquired by the processor. If the processor
acted maliciously (not ex bona fidei) he was responsible from theft. Gaius brings the
following communication about the processing:
Gai Inst. 2,79: Institutes of Gaius 2,79:

In aliis quoque speciebus naturalis ra- Where the nature of the article is
tio requiritur: proinde si ex uuis aut oliuis changed recourse to natural law is also
aut spicis meis uinum aut oleum aut fru- required. Hence, if you make wine, oil, or
mentum feceris, quaeritur, utrum meum grain, out of my grapes, olives, or heads
sit id uinum aut oleum aut frumentum an of wheat, the question arises whether the
tuum. item si ex auro aut argento meo uas said wine, oil, or grain is mine or yours.
aliquod feceris uel ex tabulis meis nauem Likewise, if you manufacture a vase out
aut armarium aut subsellium fabricaueris, of my gold or silver, or build a ship, a
item si ex lana mea uestimentum feceris chest, or a bench with my lumber, or you
uel si ex uino et melle meo mulsum feceris make a garment out of my wool, or mead
siue ex medicamentis meis emplastrum aut out of my wine and honey; or a plaster or
collyrium feceris, quaeritur, utrum tuum sit eye-wash out of drugs belonging to me,
id, quod ex meo effeceris, an meum. quid- the question arises whether what you
am materiam et substantiam spectandam have made out of my property is yours
esse putant, id est, ut cuius materia sit, illius or mine. Certain authorities hold that the
et res, quae facta sit, uideatur esse, idque material or substance should be taken
maxime placuit Sabino et Cassio; alii uero into consideration, that is to say, that the
eius rem esse putant, qui fecerit, idque max- article manufactured should be deemed
ime diuersae scholae auctoribus uisum est: to be the property of him to whom the
sed eum quoque, cuius materia et substan- material belongs, and this opinion was
tia fuerit, furti aduersus eum, qui subripu- adopted by Sabinus and Cassius. Others,
erit, habere actionem; nec minus aduersus however, hold that the article belongs to
eundem condictionem ei competere, quia him who manufactured it, and this doc-
extinctae res, licet uindicari non possint, trine was approved by authorities of the
condici tamen furibus et quibusdam aliis opposite school, who also agreed that
possessoribus possunt. the owner of the material and substance
was entitled to an action of theft against
the party who had appropriated the
property; and also that a personal action
would not lie against him because prop-
erty which has been destroyed cannot
be recovered; but, notwithstanding this,
personal actions can be brought against
thieves and certain other possessors.
84
3.5.2. Derivative mode of acquisition of ownership
With the derivative mode the acquirer derives his ownership from the ownership
of his predecessor to the same extent and content. Acquisition is realized based on
agreement through bilateral legal act through which the ownership is transferred in
such a way that the alienor is giving it up and the acquirer is accepting it. The acquirer
acquires the same legal status with the thing as his predecessor to the extent defined
by the legal act. Derivative modes of acquisition of ownership in Roman law were:
• mancipation (mancipatio),
• tradition (traditio),
• iniurecesio (in iure cessio).
a) Mancipation
Mancipation is an abstract formal bilateral legal act of alienation between Roman

citizens, through which the acquirer obtains from the alienor the ownership ex iure
Quiritium of a mancipable thing. When one of the parties of mancipation was a for-
eigner with the Roman ius commercii, he acquired ownership rights only according to
his municipality (not the dominium ex iure Quiritium). When the object of mancipation
was a non-mancipable thing (res nec mancipi) the result was the invalidity of mancipa-
tion. Presumptions of validity of mancipation and of achievement of its effects were:
• participation of alienor and acquirer (persons sui iuris or alieni iuris), representa-
tion was not possible with the exception of guardian of a mentally ill person
(curator furiosi);
• presence of five witnesses (adult male Roman citizens);
• presence of Roman citizen holding the scale (libripens);
The acquirer grasped the object of mancipation, uttered the prescribed mancipa-
tion formula, struck the scales with a piece of copper and symbolically handed over
the copper “instead of the purchase price” (pretii loco) to the alienor. If the alienor was
not an owner ex iure Quiritium the transfer of ownership ex iure Quiritium did not oc-
curre as a result of the above-mentioned principle: “nobody can transfer to another
more rights than he has himself” (nemo plus iuris ad alium transfere potest quam ipse
habet).
Abstractness of mancipation as a legal act was expressed mainly from 4th centu-
ry B.C. due to the introduction of coinage. This circumstance led to the fact that the
mancipation, originally a real contract of sale in which the object of purchase and the
purchase price were handed over simultaneously, since this time the transfer of own-
ership for any reason and validity of mancipation was absolutely independent on the
existence or non-existence of the legal cause. Suing was possible only through an ac-
tion in personam of the one who has been unjustifiably enriched through the manci-
pation. In Justinian law the mancipation was extinguished (he had extinguished the
division of things as things mancipable and things non-mancipable) and tradition has
become an universal mode of transfer of ownership. Gaius describes mancipation in
his Institutes thus:
85

Est autem mancipatio, ut supra Mancipation, as we have mentioned
quoque diximus, imaginaria quaedam above, is a kind of fictitious sale, and the
venditio: Quod et ipsum ius proprium civi- law governing it is peculiar to Roman cit-
um Romanorum est; eaque res ita agitur: izens. The ceremony is as follows: After
Adhibitis non minus quam quinque tes- not less than five witnesses (who must
tibus civibus Romanis puberibus et prae- be Roman citizens above the age of pu-
terea alio eiusdem condicionis, qui libram berty) have been called together, as well
aeneam teneat, qui appellatur libripens, is, as another person of the same condition
qui mancipio accipit, rem tenens ita dicit: who holds a brazen balance in his hand
HUNC EGO HOMINEM EX IURE QUIRITI- and is styled the “balance holder,” the
UM MEUM ESSE AIO ISQUE MIHI EMPTUS so-called purchaser, holding a piece of
ESTO HOC AERE AENEAQUE LIBRA; deinde bronze in his hands, says: “I declare that
aere percutit libram idque aes dat ei, a quo this man belongs to me by my right as a
mancipio accipit, quasi pretii loco. Roman citizen, and let him be purchased
by me with this piece of bronze, and bronze
balance”. Then he strikes the scales with
the piece of bronze, and gives it to the
so-called vendor as purchase money.
b) In iure cessio
In iure cessio is an abstract formal bilateral legal act of alienation between Roman
citizens through which the acquirer obtains from the alienor the ownership ex iure
Quiritium of mancipable as well as non-mancipable things. It was a feigned vindication
in front of a magistrate. The acquirer of the thing took it and uttered a vindicatory for-
mula and the “defendant” as opposed to a real legal suit did not utter the contra-vin-
dication, i.e. he remained silent, which meant that he had given up his ownership. The
magistrate (praetor) then granted the ownership to the plaintiff (addictio).
Participants of the iniurecesio could be only persons sui iuris (i.e. persons compe-
tent to be a procedural party), while representation was not possible. To the act of
iniurecessio there couldn’t be inserted a condition or a time imposition. In iure cessio
and its proceedings are also mentioned by Gaius in his Institutes:
86

In iure cessio autem hoc modo fit: apud A transfer of property in court takes
magistratum populi Romani uelut prae- place as follows: He to whom the prop-
torem urbanum [aut praesides prouinciae] erty is to be conveyed appears before a
is, cui res in iure ceditur, rem tenens ita dicit: magistrate of the Roman people, for ex-
HVNC EGO HOMINEM EX IVRE QVIRITIVM ample, the Praetor, and holding the prop-
MEVM ESSE AIO; deinde postquam hic erty in his hands, says: „I DECLARE THAT
uindicauerit, praetor interrogat eum, qui THIS SLAVE BELONGS TO ME BY QUIRI-
cedit, an contra uindicet; quo negante aut TARIAN RIGHT.“ Then, after he makes this
tacente tunc ei, qui uindicauerit, eam rem claim, the Prćtor interrogates the other
addicit; idque legis actio uocatur. hoc fieri party to the transfer as to whether he
potest etiam in prouinciis apud praesides makes a counter-claim, and if he does
earum. not do so, or remains silent, he adjudges
the property to the party who claimed it.
This is called an act of legal procedure,
and it can even take place in a province
before the governor of the same.
c) Delivery (tradition)
Delivery or tradition (traditio) was primarily a mode of transfer of possession ac-

cording to the alien law (ius gentium). It was a bilateral causal informal legal act, which
led to two possible consequences:
• to the transfer of civil possession to mancipable things; thus gained possession
was protected by the praetor through the action actio Publiciana (i.e. so that
such a possessor had a chance to acquire ownership ex iure Quiririum through
usucapio),
• to the transfer of ownership ex iure Quiririum to non-mancipable things.
• Objective elements of tradition (in order to achieve its validity and effects)
were these circumstances:
• transfer of possession (delivery of the thing),
• ownership of the alienor,
• permissibility of cause according to law (through which the legislator defines
the goal of the cause) and
• existence of a valid cause of transfer of possession through tradition (iusta cau-
sa traditionis), i.e. by the civil law accepted reason/cause for acquisition of own-
ership; such reasons were especially contract of sale, loan, donation, creating of
a dowry and settlement of a debt.
Cause (reason) of tradition must objectively exist at the time of transfer and must
be apparent to both parties based on their agreement. Dissent in the cause in tradition
leads to invalidity of the tradition and its effects, as is stated in the Ulpianus’ fragment
in Digesta:
87
Ulp. D. 12,1,18, pr.: Ulp. D. 12,1,18, pr.:

Si ego pecuniam tibi quasi donaturus If I give you money as a present, and
dedero, tu quasi mutuam accipias, Iulianus you accept it as a loan, Julianus says that
scribit donationem non esse: sed an mutua it is not a present; but we should consid-
sit, videndum. Et puto nec mutuam esse er whether it is a loan. I think, however,
magisque nummos accipientis non fieri, that it is not a loan, and that the money
cum alia opinione acceperit. Quare si eos does not, as a matter of fact, become the
consumpserit, licet condictione teneatur, property of the party who receives it, as
tamen doli exceptione uti poterit, quia se- he did so with a different opinion. Hence,
cundum voluntatem dantis nummi sunt if he spends the money, although he is li-
consumpti. able to a personal action for its recovery,
he can, nevertheless, make use of an ex-
ception on the ground of fraud, because
the money was expended in accordance
with the wish of the party who gave it.
3.5.3. Acquisitive Prescription (Usucapio)
Acquisitive prescription is a mode of acquiring of ownership that presupposes:

• acquisition of possession of the thing (possessio) – i.e. person must physically
seize the thing with a will to hold it;
• good faith of the possessor at the moment of acquisition of the thing (bona
fides) – at the moment of acquisition of possession the possessor is convinced
that he is not in breach of another person’s subjective right;
• legal cause for acquiring possession of the thing (iustus titulus) – acquiring of
possession happens in accordance with law, i.e. based on a cause recognized
by civil law as such that can lead to acquisition of ownership ex iure Quiritium
(e.g. occupation, purchase);
• the thing must be part of trade relationships (in commercio) – it must be possi-
ble to acquire subjective right to the thing,
• lapse of prescriptive period set by law (tempus) – a person acquiring his right by
prescription shall keep the thing for an uninterrupted period of one year (if the
thing is movable) or two years (if the thing is immovable).
After fulfilling these presuppositions such a person acquires ownership ex iure
Quiritium and ownership ex iure Quiritium of his predecessor is terminated.
Acquisitive prescription has characteristics of original as well as derivative mode
of acquisition of ownership – possession is acquired through an unilateral act but the
thing is not abandoned (it has an owner who is at the moment of seizing unknown).
88
4. Possessio
4. 1. The term
Unlike ownership, the essence of which is the direct legal dominion over a thing,
possession (possessio) is a factual state and it can be defined as a de facto dominion
over a thing. The merits of possession consists of two elements, namely:
• corpus (physical power over a thing),
• animus (will to have a thing for oneself or for another).
Possession is a circumstance totally independent from ownership. Possessor
doesn’t have to be an owner and in a suit for possession is a question (evidence) of
ownership legaly irelevant, as well as in a suit for ownership is irelevant question who
has the thing in possession. Similarly i tis important to distinguish possession (posses-
sio) from one of owner’s privileges which is a right to hold his thing (ius possidendi).
Despite this significant difference possession was granted only under those pres-
supostions that were required for ownership - the object of possession could only be
things in commercio and the subject of possession could only be persons sui iuris, i.e.
those that could acquire property. Out of these pressupostions is derived possibility of
the possessor to acquire ownership (through acquisitive prescription).
The importance of possession as a legal institute is given because of the fact that
the law in certain cases, for reasons of fairness and equity, protects the possessor
(mainly the one acting in good faith).
Roman law concept of possession denotes different situations, from which it is
possible to create two categories of persons who have power over a thing, who are
not owners of the thing but they are not possessors in the strict sense:
a) detentors – these include lender (who is using lended thing); depositary (cares
for another’s thing); mandatary (controls the thing for the mandator); lessee
(who is using leased another’s thing); owner of the thing in such cases retains
possession and carries it out through these persons; detentor has power over
the thing with a will to carry it out for another, i.e. for the owner
b) derived possessors – are those persons who have factual power over another’s
thing and at the same time they have a right that is being enacted upon this
thing (pledgee, holder of the hereditary tenancy of land, holder of the heredi-
tary right to a building and holder of the usufruct);
c) thief as a possessor – the thief has a factual power over the thing as well as will
to retain it but it is in conflict with the law (this is sistuation is illegal).
4. 2. Types of possession
In Roman law, the term possessio denoted several states of facts of de facto power
over a thing.
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a) Civil possession
Civil possession (possessio civilis) refers to a connection of factual power over a

thing and will retain the thing oneself (animus rem sibi habendi) based on a reason,
which is capable, in accordance with objective law, to lead to the acquisition of own-
ership:
• through an immediate handing over of non-mancipable things (iusta causa tra-
ditionis) or
• through acquisitive prescription, i.e. after fulfilling the other requirements (ius-
ta causa usucapionis); in this instance it was an acquisition of mancipable thing
through tradition or acquisition of thing from a bona fides non-owner;
The acquisition reasons, which led to the acquisition of ownership were purchase,
loan, donation, provision of advancement, provision of a dowry, real bequest, settle-
ment of a debt, occupation of an abandoned thing, acquision of thing through inher-
itance, occupation of a thing belonging to the vested inheritance.
b) Natural possession (detention)
Detention or natural possession (possessio naturalis) is a factual power over a thing

obtained from whatever reason that is not illegal. The will (animus) of the natural pos-
sessor lies in thatt he knows that the thing is not his and that he has to return it. The
reason of acquisition of detention is acknowledged by law but it cannot lead to ac-
quisition of ownership through acquisitive prescription nor through tradition. Such
reasons are e.e. deposit, borrowing, pledge, lease.
c) Possession in good faith
If whoever who physically controls a thing is convinced that he is not violating the
right of another (reasonably believes he is the owner), he is a possessor in good faith.
The significance lies in the fact that a possessor in good faith, if all other presupposi-
tions are met, may acquire ownership ex iure Quiritium or if he has possession in good
faith of a fruit-bearing thing he acquires ownership of fruits through their separation.
d) Possession in bad faith
Possessor in bad faith is whoever physically controls a thing about which he knows
that he is not its owner and despite that he wants to keep it. He couldn’t acquire own-
ership of such thing through acquisitive prescription and law provides him with legal
protection only in a single circumstance (interdict de vi armata against expulsion from
land through qualified violence of a group of people).
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e) Lawful possession
When the possession is acquired for a reason (cause) recognized by law, we speak
about a lawful possession (e.g. purchase). Unlawful possession is acquired for a reason
that is in contradiction to law (e.g. stealing of a thing or occupation of another’s thing
in good faith that it does not belong to anyone).
f) Interdictal possession
Possessio ad interdicta is possession protected by praetor through interdicts. Prae-

tor granted interdictal protection to whomever exercised control over a thing for him-
self without consideration for reason of acquisition, i.e. if the possession was possessio
iusta (proper possession) or even possesssio iniusta (possession in contradiction to law).
The purpose was mainly public order and also because the state of possession con-
stitutes a (rebuttable) presumption that this state of affairs is in accordance with law.
This presumption can be successfully rebutted by the owner of the thing during the
lawsuit, i.e. in a suit about ownership.
4. 3. Protection of possession
Possession was protected by praetor through interdicts. Interdicts are tools of ex-
ecution of his administrative power for maintenance of public order in property rela-
tions. Since the object of possessory suit is a factual situation, only evidence of factual
reality, not subjective rights, are accepted. Possessory suit is litigated in order to pro-
tect:
• against disturbance of possession (interdicta retinendae possessionis),
• against dispossession (interdicta recuperandae possessionis),
• for recovery of possession (interdicta adipiscendae possessionis).
4. 4. Acquirement of possession
Acquisition of possession presupposes two presumptions – corpus (physical sei-

zure of the thing) and animus (will to retain the thing). With regard to whether the
acquisition takes place through a unilateral or bilateral legal act we distinguish two
modes of acquisition: occupation and tradition.
Original mode of acquisition of possession is occupation, similarly to ownership. It
lies in seizing of the thing with the will to obtain that thing for oneself (animus possi-
dendi). Depending on whether the thing which is the object of occupation is res nullius
or not, the occupation can be:
• lawful (occupation of thing that belongs to no one),
• unlawful (occupation of another’s thing, either knowingly or unknowingly).
Derivative mode of acquisition of possession is tradition (traditio). Tradition is
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a bilateral legal act in which someone (alienor) gives up his possession to a certain
non-mancipable thing and somebody else (acquirer) receives this thing. Tradition
could be done in several ways:
• tradition “from hand to hand”;
• tradition of long hand (traditio longa manu) – if transferring land;
• tradition of short hand (traditio brevi manu) – if the existing detentor acquires
ownership (along with possession at the same time) to the same thing without
actual transfer;
• symbolic tradition – if the object of tradition is a thing that is not possible to
“seize as a whole” (e.g. building) this thing is transferred through its typical
symbol (e.g. keys);
• constitutum possessorium – the existing possessor based on an agreement, i.e.
without physical tradition “transfers“ possession onto another based on a certain legal
cause and based on other legal cause “receives” it back (fiction of double transfer).
Acquisition of possession through a slave and subordinate son (filius familias) is
possible if it is with the knowledge (animus possidendi) of the one to whom they re
subordinate for him; then they acquire possession as an “acquisition tools”. Without
knowledge of the holder of power acquisition of possession through a third person is
possible only if the slave or filius familias has been entrusted with his master’s property
for management (peculium).
4. 5. Termination of possession
Termination of possession takes place:

• through loss of legal capability of the possessor (capitis deminutio),
• after the possessor’s death,
• destruction of the thing (death of an animal, slave, burning down of the build-
ing, melting of a ring),
• if the thing ceases to be an object of trade (res extra commercio),
• through a loss of the thing,
• when the thing is stolen,
• through abandonment of the thing,
• through tradition of the thing.
Emphasis on the element of will in possession led to the fact that Roman law ad-
mitted retaining of possession in a variety of situations in which the element of corpore
was weakened so that the possessor did not directly exercise control over the thing.
About this principle - “will retains possession” (possesssio animo retinetur) – writes Gai-
us in his Institutes:
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Possidere autem uidemur non solum, We consider a party to be in posses-
si ipsi possideamus, sed etiam si nostro sion not only where we ourselves pos-
nomine aliquis in possessione sit, licet is sess, but also where anyone is in pos-
nostro iuri subiectus non sit, qualis est session in our name, although he may
colonus et inquilinus. per eos quoque, not be subject to our authority; as, for
apud quos deposuerimus aut quibus com- instance, a tenant or a lessee. We are also
modauerimus aut quibus gratuitam hab- considered to have possession by means
itationem praestiterimus, ipsi possidere of those with whom we have deposited
uidemur. et hoc est, quod uolgo dicitur property, or lent it for use, or to whom
retineri possessionem posse per quemlibet, we have granted gratuitous lodging, or
qui nostro nomine sit in possessione. quin the usufruct or use; and this is what is
etiam plerique putant animo quoque retin- commonly called the power of retaining
eri possessionem, id est ut, quamuis neque possession of property by anyone who
ipsi simus in possessione neque nostro possesses it in our name.
nomine alius, tamen si non relinquendae Again, many authorities hold that
possessionis animo, sed postea reuersuri possession can be retained merely by
inde discesserimus, retinere possessionem intention; that is to say, that though we
uideamur. apisci uero possessionem per ourselves may not be in possession, nor
quos possimus, secundo commentario ret- anyone else in our name, still, if there be
tulimus; nec ulla dubitatio est, quin animo no intention of relinquishing possession,
possessionem apisci non possimus. and we leave the property, intending
afterwards to return, we are deemed to
have retained possession of it. We stated
in the Second Commentary by what per-
sons we could obtain possession, nor is
there any doubt that we cannot obtain it
by mere intention.
Possession of land does not terminate when the possessor departs with the intent
to return (though not immediately). If someone secretly occupies this land, possession
terminates, according to the prevailing interpretation, only if the possessor did not
protect the land at all or if he tried unsuccessfully to expel the invaders. These situa-
tions are described and dealt with by lawyers Ulpianus and Paulus:
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Ulp. D. 41,2,6,1: Ulp. D. 41,2,6,1:

Qui ad nundinas profectus neminem Labeo says that where a man goes to
reliquerit et, dum ille a nundinis redit, ali-
a market, leaving no one at home, and
quis occupaverit possessionem, videri eum on his return from the market finds that
clam possidere Labeo scribit: retinet ergo someone has taken possession of his
possessionem is, qui ad nundinas abit: ver- house, the latter is held to have obtained
um si revertentem dominum non admiser- clandestine possession. Therefore, he
it, vi magis intellegi possidere, non clam. who went to the market still retains pos-
session, but if the trespasser should not
admit the owner on his return, he will be
considered to be in possession rather by
force than clandestinely.
Paul. D. 41,2,7: Paul. D. 41,2,7:
Sed et si nolit in fundum reverti, quod If the owner is unwilling to return to
vim maiorem vereatur, amisisse posses- the land because he fears the exertion of
sionem videbitur: et ita Neratius quoque superior force, he will be considered to
scribit. have lost possession. This was also stated
by Neratius.
In case if someone’s slave has escaped (servus fugitivus), his possession terminates
only after somebody else takes possession of the slave with the intention to retain the
slave and thus acquires possession. This situation is expounded upon in Julius Paulus’
Opinions:
Pauli Sententiae 2,31,37: The Opinions of Jul. Paul. 2,31,37:

Servus, qui in fuga est, a domino A fugitive slave still remains in the
quidem possidetur, sed dominus furti ac- possession of his owner, but his own-
tione eius nomine non tenetur, quia in po- er is not liable to the action of theft on
testate eum non habet. his account, because he is not under his
control.
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Chapter VI
LAW OF OBLIGATIONS
1. The term “obligation”
Obligation (obligatio) is a legal relationship between creditor and debtor which has
originated based on a cause recognized by the law and based on which is the debtor
obliged to perform something to the creditor and if he doesn’t perform then the cred-
itor could sue him and if the valid judgment is not performed then the creditor may
execute.
2. Elements of an obligation relationship
Every obligation must have:
a) Subjects
Obligation occurs always between two subjects, the creditor (creditor) and the
debtor (debitor). Subject of obligation can only be one person, but on either side of the
obligation there may be several persons (plurality of subjects). Between the subjects of
the obligation a legal bond (iuris vinculum) is established, and since it is based on legal
norms (not based on moral, political or social norms). Subject of an obligation relation-
ship according to the civil law could essentially be only a person sui iuris, i.e. a person
who could own property since the obligation relationships have proprietary nature.
b) Content
Obligation has certain content (object) which is defined as performance. Perfor-

mance constitutes debtor’s debt and the debtor is directly bound to make a perfor-
mance. Obligation provides the creditor with a subjective right to a certain behavior of
the obligated debtor. Content of the obligation is basically a set of rights and duties of its
parties (subjects). Performance could have in the legal sense three forms (Gai. Inst. 4,2):
• dare, i.e. to give, which means a duty to transfer ownership or servitude
• facere, i.e. to act, which means whatever other performance lying in a duty to
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actively act (it comprises all kinds of acts) or to refrain from certain acts (omis-
sions) - e.g. delivery of a thing, return of a thing, transfer of possession or de-
tention, execution of work, manufacture of a piece of work, not releasing of
a slave;
• praestare oportere, i.e. to guarantee, which means to have a duty to give perfor-
mance alongside the main debtor as a guarantor or in some other sense a duty
to be responsible for non-performance of the obligation (praestare dolus, cul-
pam, custodiam) – guarantee for a certain result.
c) Legal protection
An important element of obligation is its legal protection. It depends on the rea-

son which led to the creation of the obligation. If the reason of obligation has been
recognized by law as a certain type, civil law (ius civile) grated such an obligation legal
protection in an action in personam corresponding to a particular type of obligation.
Action in personam operates only between the parties of the obligation (inter partes) –
it protects the relative subjective right, which is temporary.
3. Division of obligations
It is possible to divide obligations according to several criteria such as:

• reason (source) of creation of the obligation
• distribution of rights and duties of creditor and debtor
• participation of subjects on the part of creditor or debtor
3. 1. Categories of obligations according to the reason (source) of their

creation
a) Contracts
The reason for creation of obligations from contracts (obligationes ex contractu) is

an agreement which is based on the consensus of the parties (bilateral legal act). Con-
sensus lies in the uniting of will of the contractual parties on essential elements of the
contract according to its type. The resulting consensus then gives rise to obligation.
This category includes literary, consensual, verbal and real contracts. Contracts may be
unilaterally and bilaterally binding.
b) Delicts
Obligations from delicts (obligationes ex delicto) are being created based on unlaw-
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ful act of offender by fulfilling typical elements of a certain delict introduced in law, i.e.
through law itself. Delict is a unilateral act in contradiction with norms of private law
(civil or praetorial). The reason for creation of a delictual obligation is law. Delictual act
affects in the sphere of property, family or personality of an injured party. Among the
delicts according to civil Roman law were theft, unlawful harming of somebody else’s
thing and insult. Through praetors‘ jurisdiction were suable some other acts, e.g.
• fraud/deception (dolus) or coercion (metus);
• robbery (rapina) – theft while using violence against a person even with usage
of a weapon;
• damage of a grave (sepulchrum violatum) – opening of other’s grave with aim to
secretly bury somebody else or damage of a gravestone;
• acceptance of money in order to sue unlawfully (calumnia);
• throwing out or pouring out of something from the building (de effusis et deiec-
tis); obligation arose for the inhabitant of the building if as a result of this act the
thing did cause physical harm to a free person in a public place – action was
available to anyone (actio popularis);
c) Quasi-contracts
If the reason for creation of obligation does not have its foundation in consensus,
the Justinian law termed this situation as obligationes quasi ex contractu. These situa-
tions may lie in a unilateral act that leads to:
• somebody else’s benefit (managing somebody else’s affairs without a man-
date – negotiorum gestio),
• enrichment to the detriment of somebody else (unjustified enrichment).
Managing somebody else’s affairs without a mandate presupposes voluntary ac-
tion through wich somebody manages unexpected affairs to the benefit of somebody
else without an express command from this person (factual or legal action). The action
must have been undertaken beneficially even if the result didn’t have to be positive
(e.g. effort to save a drowning somebody else’s slave, though not successful). The obli-
gation lied in the duty of the beneficiary to recompense the provider (gestor) expens-
es necessary for the action he took.
In the second instance the duty arises to the one who has enriched himself to hand
over the unjustified enrichment. Reasons that led to unjustified enrichment may have
been:
• enrichment out of unmoral reason (condictio ob turpem causam),
• enrichment out of illegal reason (condictio ob iniustam causam),
• enrichmnet out of acceptance of non-debt (condictio indebiti),
• enrichment out of performance for a purpose that didn’t occur (condictio causa
data causa non secuta),
• enrichment without legal foundation/reason (condictio sine causa).
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d) Quasi-delicts
Actions that were in contradiction with law but the fault was missing (no-fault lia-
bility), were termed as obligationes quasi ex delicto by the Justinian law. Originaly this
category also encompassed cases of noxal liability, i.e. duty of the paterfamilias to car-
ry consequences in these cases:
• unlawful action of slaves or sons’ in power (filiusfamilii),
• if a domesticated animal caused damage to somebody else (in a sudden rage
or by grazing of vegetation).
The reason for existence of obligation here is action that causes harm/damage to
somebody else but there is no fault (malice or negligence). Contemporary terminolo-
gy labels these situations by a term “strict liability.
Justinian law had regulated theses quasi-delicts:
• laying or hanging of a thing in a hazardous place (de posito vel suspenso); obliga-
tion came into being if there was a threat that a thing placed in such a way may
cause damage to somebody; action was available to anyone (actio popularis);
• damaging of things of passangers on a ship by the shipmaster or his employ-
ees,
• damaging of things of customers of an inn by innkeeper or his employees.
e) Other reasons of creation of an obligation
Innominate contracts
Outside of closed system of obligations from typical contracts (consensual) there
have developed certain situations in which consensus existed but for some other pur-
pose than the civil law anticipated and therefore it was not possible to subsume such
claims under any particular action formulas. Roman classical law most likely in such
cases granted action with formulation actio praescriptis verbis, through which with the
aid of a more detailed formulation of action’s intention (demonstratio) it was possible
to sue various situations, similarly to actions founded on good faith.
Jistinian law had granted legal protection to agreements in which the obligation
came into existence because one of the parties had already provided the performance.
Granted action aimed to provide the consideration or under certain circumstances
even for return of what was already performed. These agreements were termed in-
nominate contracts (contractus inominati). Justinian’ compilers fashioned according
to the content of the mentioned agreements four categories of reciprocal rights and
duties:
• do ut des („I will give so that you would give“, i.e. transfer of ownership from
one party obligates the other party to make a transfer of ownership as well, e.g.
exchange of one thing for another thing),
• do ut facias („I will give so that you would do“, i.e. transfer of ownership from
one party obligates the other party to certain action),
• facio ut des („I will do so that you would give“),
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• facio ut facias („I will do so that you would do“).

Informal agreements
Other reasons for occurrence of an obligation were also different informal agree-
ments which preatorial as well as civil law termed as covenants (pacta). Depending on
where their basis lay there were distinguished:
• side covenants of the bona fidei contracts (pacta adiecta) – their basis was con-
sensus between the creditor and the debtor;
• praetorial covenants (pacta praetoria) – basis for occurance of obligation was in
the praetorial jurisdiction;
• legal covenants (pacta legitima) – informal agreements to which the civil law
granted legal importance (e.g. agreement on impermissibility of retaliation of
injured against the delinquent in case of delict).
Donation
Special reason of occurrence of obligation was donation (donatio). It pressupossed
decrease in property of the donor and the corresponding increase in property of the
beneficiary. The reason for occurrence of obligation lied in the will of the donor to in-
crease property of the beneficiary (animus donandi).
3. 2. Division of obligations according to distribution of rights and duties

between the parties
From this point of view obligations may be unilateral (unilaterally binding) and bi-
lateral (bilaterally binding). Unilateral obligations are those in which only one party
has an obligation, the other party has only right. Unilateral obligations presuposse an
action only for one party of the obligation. These include e.g. loan and stipulation.
Bilateral obligations are those for which the law foresees two actions. In the case
of equal bilateral obligations, both parties have always reciprocal right and obligation
(e.g. contract of sale, contract of lease) and therefore are always available both actions.
Bilateral unequal obligations reflect the unequalilty of rights and duties in the sense
that there is always a primary obligation, protected through action actio directa, and
a second action (actio contraria) is granted for the protection of secondary obligation,
if it in the given obligation relationship arises. Such obligations are for example bor-
rowing (there always arises an obligation to return the thing for the one who has used
the borrowed thing; however there may or may not occur an obligation for the one
providing the thing to recompense unforeseen costs to the user of the thing that were
not caused by the user), deposit, contract of mandate .
3. 3. Division of obligations according to participation of subjects on part of

creditor or debtor
If there are on the part of creditor or debtor participating several subjects, the ob-
ligation may be:
• solidary
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• cumulative.
a) Solidary obligations
Object of a solidary obligation is one obligation (debt) that has:

• one debtor against several creditors (active solidarity), or
• several debtors against one creditor (pasiv solidarity).
In both instances the debt should be performed only once.
In case of pasive solidarity the creditor is entitled to ask for performance of the
whole obligation (debt, solidum) from whichever debtor and by his performance the
whole obligation is terminated. The other debtors are released from the obligation. If
the debt is due the creditor is entitled to sue whichever debtor, but this will consum-
mate the actions against all the other debtors.
With the active solidarity the debtor may perform the whole obligation (debt) to
whichever creditor and thus the obligation terminates, i.e. he is not entitled to perform
antyhitng to the other creditors.
• Solidary obligations were created:
• based on an agreement (in form of “collective” stipulation or contract of man-
date),
• based on law (ex lege) – codelinquent when it came to damages, co-owners,
several guardians or in case of partners based on a contract of association, as is
written by Ulpianus in Digest:
Ulp. D. 35,2,62: Ulp. D. 35,2,62:

In lege Falcidia hoc esse servandum Julianus says that, in estimating the
Iulianus ait, ut, si duo rei promittendi fuer- portion due under the Falcidian Law,
int vel duo rei stipulandi, si quidem socii the following rule should be observed,
sint in ea re, dividi inter eos debere obliga- namely, where there are two promising,
tionem, atque si singuli partem pecuniae or two stipulating debtors, and they are
stipulati essent vel promisissent: quod si partners, the common obligation should
societas inter eos nulla fuisset, in pendenti be divided between them; just as if each
esse, in utrius bonis computari oporteat id one had stipulated or promised to pay
quod debetur vel ex cuius bonis detrahi. the amount individually. If, however, no
partnership existed between them, the
matter would remain in abeyance, and a
calculation should be made in order to
determine what is due to the estates of
the creditors, or what should be deduct-
ed from those of the debtors.
From the reason of creation of the solidary obligation was deduced a possible re-
course claim of the debtor who has performed the whole debt against the other soli-
dary debtors or a duty of the creditor who has accepted the whole performance of the
debt to provide proportional parts to other solidary creditors. This duty existed only if
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there was a legal relationship between solidary creditors (debtors) either based on the
contract of mandate, contract of association or stipulation. According to Justinian law
the performing solidary debtor could demand from the creditor cession of the action
(beneficium cedendarum actionum), which would mean that the debtor that had per-
formed the whole debt would become a creditor against the other solidary debtors.
b) Cumulative obligations
Cumulative obligations are arising from delicts, i.e. only based on law. The perfor-
mances are being cumulated, i.e. each debtor is obliged to perform the whole debt or
each creditor is entitled to demand the whole debt from the debtor. These obligations
were for a fine.
4. Natural obligation
In Roman classical law the term natural obligation (obligatio naturalis) denoted re-
lationships created by a slave which, if instead of the slave a free person was party of
such relationship these would have been obligation under civil law, protected by an
applicable action (obligatio civilis). Relationships created by a slave though, due to a
imperfection on the subject of obligation, were not protected through an action and
according to civil law they did not exist. These relationships had a character of propri-
etary relationship though and the term obligatio naturalis had meant that it was a real
natural act with practical consequences which were under certain circumstances pro-
tected by praetor. Analogically were within the classical law viewed (though not being
termed as obligatio naturalis) actions of:
• persons in power if the paterfamilias entrusted them with a peculium (adult son
in father’s poweer), or if they contracted under his direct order;
• persons in mancipium (free persons temporarily due to a certain reason in
power of paterfamilias, e.g. lessor of work labor, captain of a ship owned by the
head of the family).
Legal protection of the natural obligations at first comprised of a possibility of
the creditor to keep what was already performed by the natural debtor, i.e. slave, son
(solutio retentio). In addition praetor granted based on an institute of adjectic liabili-
ty against the paterfamilias for the actions of the mentioned persons in power – so-
called action with substitution of subjects.
5. Alternative obligation
Alternative obligation (obligatio alternativa) lies in the fact that the debtor is obliged
for two things but he must perform only one of them. If the right of choice is debtor’s he
can claim it (ius variandi) untill the judgment is pronounced. If the choice (between two
things) is creditor’s the alternative terminates by submitting an action with stating of the
choice. If he sues alternatively the judge must take it into consideraton in his judgment.
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If the right of choice is debtor’s and one of the things ceases to exist by chance
or through his fault, his obligation becomes a simple obligation (the alternative tem-
inates). If subsequently the other thing ceases to exist by chance, debtor’s obligation
terminates as a whole.
If the right of choice is creditor’s and one thing ceases to exist due to a fault of the
debtor, the creditor could claim damages for the destroyed thing or performance of
the other. If one thing ceases to exist by chance the creditor may demand only the
other one.
6. Object (content) of obligation
6. 1. Performance – the term and its elements
Content of obligation is performance. It can be any act (omission of acting) – dare,

facere, praestare, which is the debtor obliged to provide for creditor for his satisfaction
(satisfactio).
Performance must be:
• certain; i.e. it must be obvious what is the duty of debtor so that he can per-
form his obligation; performance must be decided upon by the parties or justly
decided upon by a third person, i.e. by a just man (boni viri arbitrium); perfor-
mance must not be decided upon by will of only one party.
• appraisable in money, i.e. so it was in order with the principle of pecuniary
condemnation (judgment of conviction in a legal suit must have been for a
monetary amount); this element expresses the proprietary character of obliga-
tion relationships.
• objectively possible, i.e. if at the time of creation of obligation the performance
was physically or legally impossible, the obligation is not valid (since it is not
possible to be performed). Malice of the seller in the contract of sale, however,
in certain cases does not invalidate the obligation it only founds a liability for
damages. Subjective impossibility of performance have no effect on the va-
lidity of obligation, for example in case of insolvency of the debtor. Venuleius
(Venuleius Saturninus, third century A.D.) writes about this in Digest:
102
Ven. D. 45,1,137,4: Ven. D. 45,1,137,4:

Illud inspiciendum est, an qui centum It should be considered whether
dari promisit confestim teneatur an vero someone who has promised to pay a
cesset obligatio, donec pecuniam conferre hundred aurei becomes liable immedi-
possit. Quid ergo, si neque domi habet ately, or whether the obligation remains
neque inveniat creditorem? Sed haec rece- in abeyance until he can collect the mon-
dunt ab impedimento naturali et respiciunt ey. But what if he has no money at home,
ad facultatem dandi. Est autem facultas and cannot find his creditor? These mat-
personae commodum incommodumque, ters, however, differ from natural obsta-
non rerum quae promittuntur. cles, and involve the ability to pay. This
ability, however, is represented by the
ease or difficulty of the person, and does
not refer to what is promised;
• permissible, i.e. what is the object of performance must not be in contradiction

to law, good morals nor must it circumvent the law.
6. 2. Types of performance
a) Generic and individual performance
Performance is determined as generic if its object is a certain quantity of substitut-

able things. There can be no objective impossibility of performance, since the genus of
debt couldn’t be extinguished and the debt can be satisfied by any piece of the given
type. Consequently, chance burdens the debtor.
If the object of performance is an individually defined thing the debtor is obliged
to perform the same thing and basically the destruction of a thing by chance burdens
the creditor.
b) Severable and non-severable performance
Object of performance is severable when it is possible to perform the debt in parts

and the partial performances makes together the value of the whole performance
(e.g. return of a loan). Severable are in principle performances whose content is to give
somenting (dare), except for the case when the object of performance is a non-divisi-
ble thing (obligation ot hand over to the buyer e.g. a vase, a horse or a statue).
Non-severable performance is such that it is not possible to perform in parts be-
case the partial performances would not constitute the value of the whole perfor-
mance. Usually those are performances whose content is an obligation to do some-
thing (facere).
103
c) Certain and uncertain performance
The scope of certainty or uncertainty of performance is defined by formulation

of statement of claim in an action which can be defined certainly (intentio certa) and
uncertainly (intentio incerta) and by conviction, which in dependency of intention will
be for a certain amount of money (condemnatio certa) or for an uncertain amount (con-
demnatio incerta), that will be determined according to several criteria (appraisal of the
thing by the judge, free consideration of the judge according to the rules of decency
and fairness, defining of the whole interest of the plaintiff):
• maximally certain performance is such that in the intention of the action is
for payment of a certain monetary amount (certa pecuniae – e.g. with a loan,
stipulation); eventual judgment of conviction must be for an amount defined
in the intention; analogically it is in case that the intention of an action is for
return of a certain thing (certa res) defined by genus, quality and amount (e.g.
with a loan, stipulation) – actions in these cases are termed as condictiones;
certain performance is also for working for a certain number of days (certa dies)
according to the work contract;
• more uncertain is defined performance (intentio arbitraria), if in the intention
is a demand for return of a thing with accession (fruits), e.g. with a lending,
deposit; the amount in the judgment of conviction will be dependent on ap-
praisal of the judge;
• higher uncertainty – if according to the intention the conviction should be de-
pendant on a free consideration of the judge but in accordance with decency
and fairness (e.g. with an obligation to pay damages when damaging or de-
stroying a thing – killing of somebody else’s slave because of negligence, or
with an obligation to reimburse costs expended for a thing);
• maximum uncertainty – if the judge when passing judgment on the amount
payable in case of judgment of conviction should take into consideration the
whole legal relationship between the parties and condemn for “everything
that the defendant should give or do in favor of the plaintiff”.
d) Alternative possibility of performance
Alternative possibility of performance (facultas alternativa) exists when the obliga-

tion is simple (debtor is obliged to perform one thing), but the debtor has a possibility
to exempt himself by performing other thing (e.g if he destroyed the object of the
obligation). This other thing is not an object of the obligation, it is only on object of
the performance (in solutione) and the creditor doesn’t have a right to claim the other
thing. If the thing that is in the obligation ceases to exist due to chance, the obligation
terminates in its entirety and the alternative is groundless.
104
7. Termination of obligations
Obligation could terminate according to civil law or praetorial law. In the first in-
stance the obligation terminated ipso iure, in the latter there was still an action availa-
ble but by use of exception (ope exceptionis) praetor declined the action if the defend-
ant proved the statement included in the exception.
7. 1. Satisfaction
Satisfaction (solutio) means payment or rendering a performance the debtor was

obliged to perform. Ulpianus states about this in his commentary to Sabinus (book
XLV.):
Ulp. D. 50,16,176: Ulp. D. 50,16,176:

„Solutionis“ verbo satisfactionem It has been established that every
quoque omnem accipiendam placet. „Sol- kind of satisfaction should be under-
vere“ dicimus eum, qui fecit quod facere stood to be included in the term „pay-
promisit. ment.“ We say that he has paid who has
done what he promised to do.
The obligation terminates through satisfaction only if the debtor performs:

• to the creditor (to any other person only in case if he is authorized to accept the
performance, e.g. filius familias, slave, guardian, subsidiary creditor, mandatary);
• at the agreed-upon time (if the term of maturity is not set then the creditor
can claim the performance immediately after the creation of the obligation
with a stipulation that the debtor has time for its rendering appropriate for the
circumstances of the performance);
• at the agreed-upon place (if there is no agreement as to the place of perfor-
mance than the place should be such that arises from the natural character
of the object of performance, e.g. if the object is a individually defined thing
then the place of performance is where this thing is located; if the place of
performance couldn’t be set by using the previous criteria then it should be
performed at the place of residence of the debtor);
• an agreed-upon object (the obligation terminates even if the creditor decides
to accept for the purpose of satisfaction from the debtor some other thing
than what was agreed-upon).
Through satisfaction the obligation terminates according to civil law.
7. 2. Informal release
Release from obligation in an informal way is a bilateral legal act that is abstract
(nudum pactum), which means that it could be used for several reasons:
• compositio, i.e. compensation or exemption from a owed fine due to a delict;
105
• pactum de non petendo, i.e. agreement on non-enforcement of the debt (prae-

tor grants the defendant an exception exceptio pacti);
7. 3. Novation and delegation
Novation (novatio) is a bilateral formal legal act (stipulatio novatoria), through which
in classical law the original obligation was terminated in such a way that the legal rela-
tionship was replaced in:
- subject (new creditor or debtor),
- form of obligation (nonformal debt wsa replaced by a formal one);
In Justinian law it was neccessary for termination of obligation to only express a
novation intent (animus novandi) to terminate the original obligation. In this way it was
possible to gain through novation also a new content of the obligation (e.g. addtion of
a condtion, period of maturity, new cause).
Delegation (delegatio) is an order of one person (delegant), so that the other per-
son (delegee) performed something or pledge something to a third person (delega-
tor). The legal relationship between the participation person then:
• could have existed before the delegation (delegation leads to novation),
• didn’t have to exist before the delegation (delegation does not lead to nova-
tion).
These reasons for termination of obligation according to civil law.
7. 4. Compensation
Compensation (compensatio), or recompense is a way of termination of obligation

according to praetorial law by dudecting of obligation from a counter-obligation of
the same persons. In classical law it was allowed only with the bona fidei contracts if
their mutual claims have arisn from the same reason (eadem causam), they must have
been stated in the intention of formula of an action with a clause ex fide bona (ex-
ception in the formula process couldn’t reduce the amount for which the defendant
should be condemned). Judgment in such case was subject to a free consideration of
the judge and so if he took into account the circumstances rationalizing the compen-
sation, the judgment was always for the remainder (saldo), resulting from deduction.
Obligation terminates due to a judgment. Compensation is defined by Modestinus
and described by Gaius:
106
Mod. D. 16,2,1: Mod. D. 16,2,1:

Compensatio est debiti et crediti inter Set-off is a contribution made be-
se contributio. tween a debt and a credit.
Gai. Inst. 4, 63: Institutiones of Gaius, 4, 63:
Liberum est tamen iudici nullam omn- The judge also has a right not to con-
ino inuicem conpensationis rationem sider any set-off, at all, as he is not ex-
habere; nec enim aperte formulae uerbis pressly directed to do so by the terms of
praecipitur, sed quia id bonae fidei iudicio the formula; but, for the reason that this
conueniens uidetur, ideo officio eius con- seems to be proper in a bona fide action,
tineri creditur. it is therefore held to be part of his duty.
Justinian permitted compensation of whichever claims (not only from the same
reason) and its effects came about ipso iure. Compensateable obligations must have
been:
• reciprocal (creditor of the obligation is at the same time debtor of a debt, i.e.
counter-obligation),
• valid, i.e. they have to exist at the time of the suit,
• mature and claimable,
• liquidable, i.e. promptly provable.
7. 5. Other reasons of termination of obligation
Among othe reasons of termination of obligation belong:

• additional impossibility of performance (only if the object of performance was
individually defined thing),
• confusio (union of creditor and debtor in one person, e.g. through inheritance),
• death (only if the obligations are actively or passively non-inheritable),
• transactio, i.e. reconciliation (agreement on mutual concessions in order to
avoid the suit),
• acceptilatio (formal release by an reverse legal act than at the creation of the
obligation),
• praescriptio longi temporis (through lapse of time the claims become stat-
ute-barred in accordance with a Constitution of the Emperor Teodosius II. from
year 424 A.D.)
• concursus causarum (if the creditor has accepted the performance in the form
of an individually defined thing for a different than an agreed-upon reason).
8. Liability for failure to perform the obligation
Primary duty of debtor is to satisfy the obligation. If he does not satisfy it ade-
quately and in time, then comes to the fore a secondary duty which is liability for
107
failure to perform the obligation. If he has caused the failure to perform of obligation
then he has a duty to pay compensation/damages that was caused to the creditor. If
the debtor failed to perform and is liable for it then applied the principle: culpa debi-
toris perpetuari obligationem, i.e. debtor’s fault causes continuation of the obligation,
due to which the debtor must perform secondary performance determined by a judg-
ment (payment of compensation/damages) even in case an additional impossibility of
performance. Presumptions of occurence of debtor’s duty to pay compensation are:
• damage was caused by the debtor (subjektiv side of occurence of liability),
• occurence of damage, its cause (objektive side of occurence of liability),
• causal relation between the debtor’s actions and occured damage.
8. 1. Fault
Commonly the term “fault” is understood as a deliberate action of a person that

leads to a certain adverse consequence (i.e. to a damage in the broadest sense). It is
the subjective part which is a psychological relationship of the acting person to the
consequent that is significant. It has a certain scope, from an intention to a negligence.
Roman law recognized only two levels of fault – malicious intent (dolus malus) and
negligence (culpa). Malicious intent represented deliberate/intentional breach of a
contractual duty arising from rules of decency, gallantry, trust (bona fides). As Paulus
states:
Paul. D. 44,4,8, pr.: Paul. D. 44,4,8, pr.:

Dolo facit, qui petit quod redditurus est. He is guilty of fraud who demands
something which he should return.
When creating a contract exclusion of liability for a future malicious intent by con-
sent of the parties was in Roman law prohibited.
Negligence (culpa) is a breach of debtor’s duty to keep necessary care (diligentia) in
the affair in which he was liable. Assessment of the extent of duties is evaluated with
consideration of a proper/ordinary man (pater familias), i.e. abstractly (culpa in abstrac-
to). Unlike with malicious intent negligence is lacking the awareness of evil.
Post-classical law divided negligence into gross and light negligence. The original
term “negligence” was here termed as “gross negligence” (culpa lata) with the same
content. The light negligence (culpa levis) had meant neglect of care taken by a atten-
tive landlord (diligens pater familias), not the average man. In some cases (partners in
a contract of association, co-heirs, guardian) the scope of fault from negligence was
assessed in accordance with affairs of the acting person, i.e. in accordance with criteria
of the specific person (culpa in concreto) as is he caring for his own affairs.
8. 2. Principle of utility
Principle of utility (usefulness) was applied with the contracts bona fidei. Accord-
ing to this principle was the scope of liability assessed depending on which contrac-
108
tual party benefits from it (interest in its satisfaction). If both parties benefit (essential-
ly contracts for consideration) then both are liable for dolus andculpa (e.g. purchase,
lease, contract for work done), if the contract is benefitial only for the creditor then the
debtor is liable only for dolus (e.g. deposit).
8. 3. Chance
In classical law applied the principle that nobody is liable for chance. Chance (casus)
is an event that is independent from the will of man and therefore he cannot influence
it. Eventual damage that occurs due to its occurence burdens the owner of the thing
who is essentialy the creditor (casum sentit dominus). If it is a chance that is unforseea-
ble and by human power unavoidable (vis maior), the debtor is liable for it only if:
• he is a thief (he owes from a delictual obligation),
• he in contradiction with the contract commited a theft of benefit (furtum usus),
• he is in delay due to his own fault.
Lesser chance (casus minor, custodia) is an circumstance caused by a third person
(or an animal) which could have been avoided if the debtor took better care of the
thing. The debtor was liable for custodia only rarely – if he benefited from the contract
or if it was in his interest for the thing to not be stolen (in such a position was an user of
a borrowed thing, some makers based on a contract for work done). Debtor’s liability
for custodia may be established aslo by an agreement of parties.
8. 4. Payment for damages
Duty to pay for damages evaluated according to subjective criteria on side of the
creditor consisted of that which represented the whole interest of the creditor on
non-realized performance. In this expression the damage represented:
• real damage (damnum emergens), i.e. a proprietary value by which was the
damaged creditor’s property decreased and
• loss of profits (lucrum cessans), i.e. a value which would have definitely been
gained by the damaged through a ordinary course of events it there was no
damage;
Proprietary damage and loss of profits constitute together the whole interest (in-
teresse), i.e. difference between the current state of damaged’ property and the state
that would have been if there was no damage.
9. Contractual obligations
Contractual obligations were protected through actions actio in personam that ap-
ply only between parties of a particalar contract. Every recognized contract, i.e. which
was recognized by ius civile, had a corresponding action in ius conceptae (iudiciae bona
fidei or actiones stricti iuris) and the contractual obligations outside the system of civil
109
law were protected by praetorial actiones in factum conceptae or actiones utiles. Accord-
ing to the mode of creation there were contracts consensual, real, verbal and literal.
9. 1. Consensual contracts
Among consensual contracts belonged contract of sale, contract of mandate, lease

and contract of association. They are informal contracts, causal and bilateral. The are
created through an agreement on essential elements and were protected through
actions bonae fidei in which the judge could have taken into account adjacent agree-
ments, circumstance which impacted upon the consensus (error, fraud, coercion) and
scope of liability (fault). Origin of consensual contracts is in the practice of alien praetor.
9. 1. 1. Contract of sale
Contract of sale is a bilateral equal contract that is created through an agreement

on the object of purchase and purchase price. The object must be individualized and
the amount of purchase price must be certain, i.e. defined by a certain amount of
money. The purchased thing must be part of trade relationships (in commercio).
The seller is obliged to:
• transfer possession of the purchased thing to the buyer (to claim fulfillment of
this duty has the buyer actio empti) a
• secure its uninterrupted use to the buyer (so that the buyer could acquire own-
ership through acquisitive prescription),
• hand over to the buyer all fruits produced by the purchased thing after the
creation of the contract of sale.
• The buyer is obliged to:
• pay the purchase price immediately, if they didn’t agree on a different time of
payment (he is obliged to transfer ownership of money to the seller – to claim
the purchase price the seller has available actio venditi),
• recompense the seller for inevitable and useful expenses he had with the thing
until its transfer;
The seller is from the time the contract came into being liable for damages oc-
cured due to his fault and lesser chance (custodia). Risk of destroying or damaging of
the thing due to the vis maior burdens the buyer (periculum est emptoris) and therefore
if the thing perishes by chance before transfer of the thing, the buyer still must pay the
purchase price.
The seller is liable for legal defects of the purchased thing and subsequently for
eviction. Such situation is when the buyer after the transfer of the thing into his pos-
session is sued by a third party (with a real right to this thing, e.g. pledgee, owner,
holder of ususfruct) for its extradition. If the buyer notifies the seller about the suit
with the third party, the seller is obliged to stand in his stead at the trial (as a procesual
representative or through an intervention in the trial).
Liability for eviction originated:
110
• based on the mancipation; action of the damaged buyer (actio auctoritatis)

then claimed double of the purchase price from the the seller;
• based on the stipulation; if the purchased thing was transferred by tradition
the liability for eviction came into being only after creating of a special contract
in form of a stipulation with a claim of double of the purchase price (stipulatio
duplae);
Liability for factual (physical) defects of the thing was essentially a burden of the
buyer if the seller didn’t know about them (with the exception of a purchased land if it
didn’t have the acrage declared by the seller at the time of creation of the contract of
sale). Liability of the seller must have otherwise been constituted by a special agree-
ment on attributes which the purchased thing should have. Only later in accordance
with the edict of aediles curules was the seller at the markedt obliged to notify the
buyer of the defects of slaves and livestock or he was obliged to guarantee through
the stipulation that the slave is without defect. If defects came to light the buyer has
actio redhibitoria for termination of the contract of sale (because of the defect the
thing couldn’t be used at all) or actio quanti minoris for proportional decrease of pur-
chase price (because of the defect use of the thing is impeded). Situation, who is liable
for physical defect if the seller assured the buyer that the slave is without defect, was
dealt with by Ulpianus:
Ulp. D. 19,1,13,3: Ulp. D. 19,1,13,3:

Quid tamen si ignoravit quidem furem What would be the case, however, if
esse, adseveravit autem bonae frugi et fi- the vendor was not aware that the slave
dum et caro vendidit? Videamus, an ex was a thief, and had given the assur-
empto teneatur. Et putem teneri. Atqui ig- ance that he was frugal and faithful, and
noravit: sed non debuit facile quae ignor- sold him at a high price? Let us see if he
abat adseverare. Inter hunc igitur et qui would be liable to an action on purchase.
scit praemonere debuit furem esse, hic non I think that he would be liable, but sup-
debuit facilis esse ad temerariam indica- pose that he was ignorant of the charac-
tionem. ter of the slave? He ought not to assert
so positively something that he did not
know. There is then a difference be-
tween this instance and that where the
vendor knew the character of the slave,
for he who knows should warn the pur-
chaser that he is a thief, but in the other
instance, he should not be so ready to
make a rash statement.
To a contract of sale (to its essential elements) could the parties add different ad-
ditional agreements (e.g. on re-purchase, on re-sale, on trial purchase, reservation of
a better deal).
111
9. 1. 2. Lease
Lease was a bilateral equal contract that appeared in three distinct forms:
• lease of a thing,
• lease of labor (contract of employment),
• lease of result of work (contract for a work done).
a) Lease of a thing (locatio conductio rei)
The lessor (locator) yields to the lessee (conductor) non-consumable thing for using
in compliance with its purpose in exchange for a agreed-upon rent. If the object of a
lease is fruit-bearing thing the contract is termed as “usufructuary lease” and the rent
could be agreed-upon to be paid partly in extracted fruits/the produce. The period of
lease is determined by the contract, local customs or the lease terminates by a unilat-
eral termination of the contract due to grave reasons (e.g. long-term non-payment of
rent, bad condition of the leased thing, necessary repair of the leased building).
The lessor is obliged to maintain the thing in condition fit for use and reimburse all
costs of repairs. He is liable for legal defects of the thing and factual defects if he fraud-
ulently withheld information about them. The lesseee is obliged to pay rent essentially
after the termination of the lease. In accord with the principle of utility (usefulness)
both parties are liable for their own fault (dolus, culpa). For custodia and chance is lia-
ble the lessor since he is the owner of the thing. The lessor has available actio locati to
claim the rent and the lessee has actio conducti to claim the obligation of the lessor to
maintain the thing in usable state. If the lessor sells the leased thing during the lease
to a third party, he is liable for damages incurred by the lessee in case the new owner
deprives him of use of the thing.
b) Contract of employment (locatio conductio operarum)
The lessor (laborer) exchanges the use of his labor for a certain wage. He is obliged
to work personally, properly, according to instructions of the lessee and he is liable for
damages caused by him. The lessee (employer) is obliged to pay him the agreed-up-
on wage (merces), create and maintain appropriate working conditions. Through the
action actio locati the laborer claims his wages and through the action actio conducti
the employer claims appropriate completion of the work or damages caused by the
underwork. The object of contract of employment could have been only unqualified
manual work (operae illiberales).
c) Contract for a work done (locatio conductio operis)
The provider (conductor) udertakes to perform or execute a particular piece of

work and he promises to produce a certain specified result for the person commis-
sioning the enterprise (the customer/ locator). The object of this contract was qualified
112
work performed by a craftsman (artifex) – e.g. building of a house, transport of goods,

cleaning of clothes, teaching the craft.
The customer is obliged to provide the material and to pay a salary (reward, rent).
He has a right to a proper manufacture of the work and to approve the delivered com-
pleted work. The provider is obliged to manufacture and deliver the work and has a
right to be paid the agreed-upon salary. He is liable for any damage caused to the work
and for damage caused by his inexperience and unprofessional approach. If the work
was manufactured with aid of other, by the provider authorized persons, he is also lia-
ble for damage caused by them, i.e. for a bad choice of persons (culpa in eligendo). For
the theft of things accepted by the provider (custodia) is liable the provider only if he is
a cleaner (repairman) of clothes and a tailor as evidenced by a text in Gaius’Institutes:

Item si fullo polienda curandaue aut Moreover, if a fuller receives clothes
sarcinator sarcienda uestimenta mercede to be cleaned or pressed, or a tailor re-
certa acceperit eaque furto amiserit, ipse ceives them to be repaired, for a certain
furti habet actionem, non dominus, quia compensation, and loses them by theft,
domini nihil interest ea non periisse, cum he, and not the owner, will be entitled to
iudicio locati a fullone aut sarcinatore bring the action; because the owner is
suum consequi possit, si modo is fullo aut not interested in their not being lost; as
sarcinator rei praestandae sufficiat; nam si he can recover the value of the clothing
soluendo non est, tunc quia ab eo dominus in the action of leasing against the fuller,
suum consequi non potest, ipsi furti actio or tailor, provided the said fuller or tailor
conpetit, quia hoc casu ipsius interest rem has sufficient property to make good the
saluam esse. loss; for if he should not be solvent, then,
for the reason that the owner is unable
to recover what belongs to him, he can
himself bring the action of theft, be-
cause, in this case, it is to his interest that
the property should be saved.
9. 1. 3. Contract of mandate (mandatum)
Contract of mandate is a bilateral unequal contract based on which the mandata-

rius undertakes to procure for the benefit of the mandator grauitously some affair (a
thing, a legal act, a factual act). If the object of obligation is management of a whole
property then the mandatarius is called procurator (Ulp. D. 3,3,1, pr.). Contract of man-
date could be entered into for the benefit of a third party. If the cause was only for the
benefit of mandatarius it would be a non-binding advice (consilium).
The mandatarius is obliged to execute the mandate faithfully and after the end of
procurement of affairs to provide an accounting and hand over to the mandator what-
ever he received on account of or in the execution of the mandate. He has a right to
be reimbursed for any expenses that he might have incurred on behalf the mandator
and a right to payment for damages suffered in direct connection with the execution
of the mandate (ex causa mandati). To claim the stated he has available actio mandati
113
contraria. He is liable only for malicious intent (dolus). If he renunciates the contract
(renuntiatio) at an importune moment he must reimburse the mandator for potential
damages.
Since the mandatarius acts in his own name, i.e. he is only an indirect represent-
ative of the mandator (the mandatarius acquires while executing the mandate for
himself), the mandator is obliged to accept everything the mandatarius had acquired
(to release him from contracted obligations). If the mandatarius fails in his duties the
mandator has actio mandati directa which if used successfully causes mandatarius’loss
of honor (infamia).
If the mandatarius has exceeded the scope of instructions, he was acting on his
own behalf and the mandator wasn’t obliged to accept anything from him. In this case
the mandatarius was liable even for a chance.
9. 1. 4. Contract of association (societas)
Contract of association was a bilateral equal contract of two or more persons bound
to achieving a common goal through reciprocal performances (work, money, things,
reputation). The purpose of such contract was to through a common efforts reach a
goal that wasn’t achievable by an individual through his own strength (preservation
of common property and its management, business based on several activities). Cor-
porations were divided to businesses (aimed at profitable activities) and others (aimed
at non-profitable activities). Corporation didn’t have its own legal personality. Proper-
ty put into the corporation were co-owned by the partners, rarely it could remain in
ownership of the one partner and in this case the common purpose was being served
only through the profit from this investment. Every partner had a right to portion of
the profits.
Partners were obliged to:
• perform promised deposits (according to their character),
• be faithful to the partners in his actions; from the relationships of partners that
was based on trust if followed that the partners were liable only for malicious
intent (possibly for care which they were taking with their own affairs – culpa
in concreto); execution of obligation against the partners could have been only
proprietary (not personal).
• participate in the losses of the corporation (depending on the size of invest-
ments of individual partners).
Corporation dissolved:
• by an agreement of partners,
• by resignation of a partner,
• in case of death of a partner,
• after the lapse of appointed time,
• by achieving the appointed goal,
• by litigating to settle mutual personal obligations (actio pro socio), i.e. action for
termination of a corporation.
114
For division of property that was co-owned by partners there was an action actio
communi dividundo.
As a representative of partners in a business corporation based on their authoriza-
tion acted:
• administrator of the business corporation (institor tabernae), or
• administrator of a sailing corporation, i.e. ship’s captain (magister navis).
Obligations of administrators against third parties within the business were claim-
able based on the adjectic liability. Obligations of partners against third parties gradu-
ally took on the character of solidary obligations.
Contract of association created on the principle that one or several partners should
take participate only in profits and other partners should participate only in loss is in-
valid. Such a corporation was termed as lion’s corporation (societas leonina) described
by Ulpianus in D. 17,2,29,2 as contrary to decency and justice.
9. 2. Real contracts
Real contracts are informal gratuious contracts with emphasis on cause that come
into being through a physical delivery of a thing to the contractual party based on
a previous agreement. The most significant real contracts were loan, borrowing and
deposit. Real delivery of a thing with the aim to create a lien (pignus) abides by an an-
alogical regulation as does the deposit.
9. 2. 1. Loan (mutuum)
Loan is a unilaterally binding contract lying in a transfer of ownership to money or

to consumable thing of a certain type, quality and amount with a duty to return the
same amount, quality and type (of money or other things). The debtor is burdened
with a risk of damage occuring for whatever reason (dolus, culpa, custodia, vis maior)
since he is owner of the loaned things, he can use them in a whatever way he wants.
Interest (usurae) did not result from the loan as such but they had to be agreed-upon
through a specific formal contract and analogically they were claimable separately.
Since it is a unilateraly binding contract only the provider of the loan has an action - ac-
tio certae creditae pecuniae (if the object of the loan are money) or actio certae creditae
rei (if the object of the loan are other things). They are actions stricti iuris, i.e. the judge
couldn’t take into consideration any special circumstances of the legal relationship. If
after the disclosure of all evidence it is evident that the plaintiff claimed more that he
was entitled to (pluspetitio) the judgment was one of acquittal.
9. 2. 2. Borrowing (commodatum)
Borrowing is a bilateral unequal contract lying in a transfer of detention to an in-

dividually defined (essentially) non-consumable movable thing in the interest of its
gratuitous usage in accordance with its natural purpose. The recipient was obliged
115
to return the thing at a time appointed by agreement or on request (if the due date
wasn’t agreed-upon). The recipient was liable for damage caused by his fault and cus-
todia (theft and damage of the thing by a third party or an animal) under the principle
of utility (usefulness) which is essentially on his side. Vis maior burdens the provider
of the thing as its owner. If the recipient has used the thing contrary to its purpose
or contrary to the agreement, he was commiting a theft of benefit (furtum usus) and
consequently he was burdened by the risk of damage caused by the vis major. The re-
cipient could through an action actio commodati contraria after the conclusion of the
borrowing claim reimbursement of unforseen useful costs expended on the thing (e.g.
treatment of a slave) and payment of damages caused by the borrowed thing. The
provider has actio commodati directa for return of the thing with a possible accession
and for payment of possible damages. The character of the actions is bonae fidei. Mora
debitoris led to a duty to pay late charges. Mora creditoris moderated the liability only
to the malicious intent.
9. 2. 3. Deposit
Deposit is a bilateral unequal contract lying in transfer of detention of a non-con-

sumable individually defined thing to the depositary for the purpose of its protection
without the right to use the thing (it could be agreed-upon but with a possible higher
liability of the depositary). The depositary was obliged to care for the thing and to pro-
tect it against damage. However he was liable only for damages caused with malicious
intent. If he acrued any expenses related to care and protection of the thing he could
have claimed them through an action actio depositi contraria together with the right
to retain delivery of the thing (lien) as long as the depositor didn’t pay the expenses. If
he used the thing he committed a theft of a benefit (furtum usus) and furthermore he
was liable for damages caused by a chance.
The depositor could through an action actio depositi directa claim return of the
thing at the appointed time (or on request) and payment of damages caused by the
depository with a malicious intent for his whole interest (quod interes). Actions are
bonae fidei.
If the object of deposit were money which were not in a sealed pouch with an
agreement that the depository could use them if he would need them (depositum ir-
regulare) the deposit would transform into a loan but only at the moment of their
usage (i.e. taking away from the place of deposit with the intent to use them) with all
the consequences (change in liability, change in rights and duties). Such a case is de-
scribed by Ulpianus:
116
Ulp. D. 12,1,10: Ulp. D. 12,1,10:

Quod si ab initio, cum deponerem, uti If, however, when I deposited the
tibi si voles permisero, creditam non esse money with you in the beginning, I
antequam mota sit, quoniam debitu iri permitted you to make use of it, if you
non est certum. wished to do so; it is held that the loan
does not exist before the money is re-
moved, since it is not certain that any-
thing is owing.
9. 3. Verbal contracts
Verbal contracts were formal unilaterally binding contracts needing a verbal form
with prescribed words (verbs) affirming the consensus of parties. They served mainly
as an insurance for already existing obligations created from a different reason. These
included for example:
• stipulation,
• fideipromissio (creation of a guarantor’s obligation through a promise, it was
available for foreigner as well),
• dotis dictio (establishment of dowry through a unilateral declaration of a head
of the family in front of the future husband).
The most significant verbal contract was stipulation.
9. 3. 1. Stipulation
Stipulation (stipulatio) was a verbal contract that came into being by an answer of
a future debtor with a verb “I promise” („Spondeo“) to a question of a future creditor
asked with a verb “Do you promise?” („Spondes?“). Of course that in the question was
included the content of the obligation as well (e.g. “Do you promise to return to me
1000 sestertium?”), but since the stipulation was a strictly abstract legal act the reason
of creation of the obligation was exclusively in the used prescribed words even despite
a possible uttered cause which was a reason for creating a stipulation. The purpose
of stipulation was to insure or transform already existing obligations or to create new
obligations, e.g. so that the unenforceable obligations become enforceable (stipula-
tion of natural obligations). Disadvantages of the stipulation were that it was possible
to only create unilateral obligations and that the parties must have been personally
present. In the period of post-classical law the significance of vebal form of stipulation
disapeared and a presupposition of existence of stipulation was authenticated with-
out anything else the document of stipulation.
9. 4. Literal contracts
Literal contract has as a reason for creation of obligation a written entry - transcrip-
117
tio. It could have been in two forms:

• change of a monetary debt based on a certain causa for a literal one, i.e. writ-
ten debt;
• remittance of a debt, i.e. change of a monetary debt of one person for a literal
debt of another person.
In both cases the reason for a new debt is a written (literal) entry. The sole purpose
of transcriptio was a renewal of obligation (the original obligation with its causa was
terminated, a new obligation came into being which reason for creation was transcrip-
tio).
10. Delicts
Among the delicts acording to Roman law (delicta privata) belonged unlawful acts
infringing into the private sphere unlike the public crimes (crimina publica) which were
infringing social (public) interest of Roman municipality (civitas), e.g. murder, incendi-
arism, treason, contempt of the emperor. Common attributes of delictual obligations
were:
• presence of an action based on fault (essentially a malicious intent, unlawful
harming of somebody else’s thing requires only negligence);
• essentially they were tied to the person of delinquent (at the beginning they
were passively as well as actively non-inheritable);
• noxality, i.e. for delicts committed by persons alieni iuris and slaves were liable
those in whose power these persons were (pater familias, or the slave’s owner);
• cumulative liability (every one from several accomplices of a delict could be
sued separately);
• delictual capacity didn’t have mentally ill persons;
Legal protection was provided through penal actions (actiones poenales) through
which it was possible to claim a fine or through mixed actions (actiones mixtae) through
which it was possible to claim partly payment of damages and partly a fine.
10. 1. Theft (furtum)
Theft was a delict according to civil law lying in an intentional unlawful usurpation
of somebody else’s movable thing with an intent to enrich oneself (mercenariness).
The usurpation included these situations (there always had to be present malicious
intent):
• retaining of possession of somebody else’s thing;
• usage of somebody else’s thing in contradiction to an agreement (furtum usus),
e.g. with deposit;
• taking away of one’s own thing from possession of a bona fides possessor,
pledgee and holder of the usufruct;
118
• intentional acceptance of an eroneously rendered performance.

For theft civil law provided actions actio furti and condictio furtiva.
Through the action actio furti it was possible to claim a fine and it was available
essentially to a robbed owner. Besides him it was available to the one who had some
other real right to the thing (pledgee, holder of the usufruct) and the one who had
an interest in that so the thing was not stolen (the provider of a work if the delivered
material was stolen from him; robbed user of a borrowed thing). The fine for theft was
a double of the stolen thing’s value or quadruple of its value (if the perpetrator was
caught in the act of theft – furtum manifestum). To claim return of the stolen thing or to
claim payment for damages if the thing was destroyed, the robbed owner was granted
condictio furtiva.
10. 2. Unlawful harming of somebody else’s thing (damnum iniuria datum)
This is a delict according to civil law (lex Aquilia, the law of the plebeian assembly
from the 1st century B.C.). According to this law liable was the one who:
• killed or othewise damaged (injured) somebody else’s slave or a four-footed
herd animal.
• damaged some other, not his thing.
Presuppositions of establishment of liability were:
• unlawfulness of the act (disculpating reasons were olny acts in extreme emer-
gency or in self-defence),
• action based on fault (action with a malicious intent or gross negligence; for
establishment of liability omission of action was not enough),
• occurence of damage (i.e. proprietary detriment – death, injury, destruction,
damage),
• the object of damaging action was somebody else’s thing,
• typical action (the action must have lied in immediate physical action upon the
thing).
• Through praetorial so-called similar actions (actiones utiles) liability was estab-
lished even in analogical situations:
• if the damage was caused indirectly (the damage did not occur due to an im-
mediate physical action upon the thing, e.g. a thrown stone injured slave’s
head),
• if the integrity of a thing was not broken by the action but a damage was in-
cured (sinking of a ship if there was an intetionally cut off the rope which tied
it to the tier),
• if other animals than a herd ones were killed or injured (dog, lion, bear, birds).
In these instances if all other presuppositions of establishment of liability were
fulfilled, praetor granted actions contrived for a factual situation (actiones in factum
concepta).
The action according to the lex Aquilia (actio legis Aquilie) was used to claim a fine
119
which was equal to:

• the highest value of the killed slave or animal during the last year before its
killing,
• the highest value of a damaged thing during the last 30 days before its dam-
age plus other interest of the injured (loss of profit, medical expenses).
Justinian law granted the action even in a case if somebody damaged physical
integrity of a free person.
10. 3. Fraud (dolus)
In year 66 B.C. praetor Aquilius Gallus established an action against acts causing
damage that has attributes of fraud (intentional misguidance of other so that he made
a certain legal act which he wouldn’t otherwise do) or of a malicious damage of other
person (misguidance is missing).
Praetor in these situations if the damaged who had performed based on the fraud
didn’t have any other action available, subsidiarily granted an action actio doli through
which it was possible to claim payment of all damages. Proving of a fraund in front of
a judge was problematic though. If the person damaged through fraud was in a posi-
tion of a defendant, praetor had granted exception exceptio doli against the action of
the fraud who was claiming performance of the obligation. It was irelevant wether the
fraud came about at the creation of the legal act or afterwards.
10. 4. Coercion (metus)
This is a praetorial delict established probably around year 80 B.C. Praetor protect-
ed a person who under the threat of unlawful detriment to himself or members of the
family from somebody else was coerced to make a legal act to avoid the threatening
damage. Factual attributes of coercion were these:
• coercion must arouse legitimate fear, i.e. threatened detriment was big (detri-
ment to health),
• the fear was the result of the threat (causality between coercion and fear),
• the threat was immediate (feasible in reality),
• the threat was illegal/unlawful (it was not a reason which could with the re-
spect of the actor be considered as justified).
Praetor granted the coerced an action actio quod metus causa (restitution of
everything the coercer gained from the act) or an exception exceptio metus to prove of
coercion in front of the judge and a consequent dismissal of the petition. In case of a
serious detriment he subsidiary granted also restitutio in integrum (praetor in this case
on the instigation of the damaged through a decree terminated, after examination of
the case without a subsequent trial in front of a judge, all effects and consequences of
the legal act made under coercion).
120

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Trnavská univerzita v Trnave, Právnická fakulta

Inovatívne formy vzdelávania

ROMAN PRIVATE LAW

ROMAN PRIVATE LAW

1. Law in objective meaning

In objective meaning law is a summary of standards (i.e. common binding rules of

Ulp. D. 1,3,41: Ulp. D. 1,3,41:

Important characteristic feature of law norms is their normative abstractness, i.e.

Cels. D. 1,3,4: Cels. D. 1,3,4:

2. Law in subjective meaning

In subjective meaning law is read as authorization, admitted by the body of laws,

3. Sources of Roman law

Under the concept of law source it is needed to differentiate source in an material

Jul. D. 1,3,32,pr.: Jul. D. 1,3,32, pr.:

3.1. Types of sources of Roman law

Gai. Inst. 1, 2: Institutes of Gaius 1, 2:

In the Roman state belonged to the formal sources of law:

e) jurisprudence (jurisprudentia) – answers of lawyers belongs to the most signifi-

Pomp. D. 1,2,2,49: Pomp. D. 1,2,2,49:

1. 1. Public Law – the concept

Ulp. D. 1,1,1,2: Ulp. D. 1,1,1,2:

1. 2. Branches of Roman public law

In light of contemporary understanding of the fields of law we can divide Roman

1. 3. Attributes of public law

a) The precedence of all-society interest

b) The coercive character of the norms of public law

Pap. D. 2,14,38: Pap. D. 2,14,38:

c) Subordination of subjects of public law relationship

d) Strict interpretation of the norms of public law

f) Public relationship is not subject to judicial jurisdiction

2. 2. The characters of private law and its norms

a) Protection of the private interests

c) Equal position of the subjects of the relationship

d) Extensive interpretation of the private law norms

Cels. D. 1,3,17: Cels. D. 1,3,17:

e) Analogia (analogy) in private law

Jul. D. 1,3,12: Jul. D. 1,3,12:

his jurisdiction, not in the norms of the civil law.

f) Private relationships are subject to the judicial power (jurisdiction)

2. 3. Branches of private law

Ulp. D. 1,1,1,3: Ulp. D. 1,1,1,3:

Paul. D. 1,1,11: Paul. D. 1,1,11:

a) Civil law (ius civile)

Pap. D. 1,1,7, pr.: Pap. D. 1,1,7, pr.:

b) Pretorian or honorary law (ius honorarium)

Pomp. D. 1,2,2,10: Pomp. D. 1,2,2,10:

Pap. D. 1,1,7,1: Pap. D. 1,1,7,1:

Besides the above-mentioned special competences, praetor had ordinary compe-

c) Law of nations (ius gentium)

Pomp. D. 1,2,2,28: Pomp. D. 1,2,2,28:

Gaius D. 1,1,9: Gaius D. 1,1,9:

Ulp. D. 1,1,1,4: Ulp. D. 1,1,1,4:

Hermog. D. 1,1,5: Hermog. D. 1,1,5:

d) Natural law (ius naturale)

Cicero, De Re Publica III, 33: Cicero, Treatise On The Common-

Ulp. D. 1,1,1,3: Ulp. D. 1,1,1,3:

Paul. D. 47,2,1,3: Paul. D. 47,2,1,3:

Ulp. D. 15,1,11,2: Ulp. D. 15,1,11,2:

Paul. D. 1,1,11: Paul. D. 1,1,11: