NEXUS NOTES

Roman Law 2021-2022

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Week 1
Literature
Introduction
• A major body of Roman Law was first codified by Emperor Justinian in the 6th century
AD - that was the first milestone in the development of Roman Law
• In the 11th century Justinian's codification of Roman Law was rediscovered and all the
universities started studying it --> resulting in Roman Law influencing the whole of
Europe when it comes to law (excluding England)
• Within Roman Law there is a distinction between public and private law: public law is
concerned with the functioning of the State, while private law relates to relationships
between individuals >> Romans mostly focused on the development of private law,
which will also be the focus of this course.

The Constitutional and Historical Background

A. The Republic
• The Roman Republican Constitution was finished around 287 BC (after almost 2
centuries of internal struggle between the Patricians and the Plebeians)
• The Constitution stipulated 3 elements: the magistrates, the Senate and the assemblies
1. The magistrates (Consuls, Praetors etc)
• Consuls = Inheritors of royal power - there were 2 consuls ruling at every moment
• Had full executive power (imperium)
• 3 limitations: the consuls had veto power over one another, they held office for only one
year, their power was limited by legislation
• The Praetor was the magistrate concerned with private law (the administration of civil
law)
• The Curule Aediles were magistrates responsible for public works, but they influenced
private law through their influence over the market and the law of sale
• The Censors supervised the morals of the citizens and decided their societal status - at
some point, they were the magistrates tasked with choosing the Senate members
2. The Senate
• = council of elders that had an advisory function, but was very powerful through their
influence
• Discussed law proposals and issued opinions on them
3. The Assembly
• = the entire citizen body
• Often lacked initiative because only the magistrate presiding it could convene it or
decide which bills are to be discussed and voted
• Every citizen had a right to vote, but voting was numbered by groups, not people
• There were 3 different assemblies actually - comitia curiata, comitia centuriata, comitia
tributa (the latter 2 make laws)
• There was also an assembly for the Plebeians alone (concilium plebis) - the resolutions
adopted by this assembly were conferred full legislative power through lex Hortensia
• Conclusion: 3 legislative assemblies - comitia centuriata, comitia tributa, concilium
plebis

• During the later Republic years, Rome became a great commercial power, as it started
adding new provinces to its territory and engaging in commerce
 • A proletariat emerged in Roman society and the society was heavily influenced by
Greek morals (which were laxer, resulting in moral degeneration of the Roman society)
• Therefore, many generals hired poor people to fight their battles, resulting in a great
expansion, but also many civil wars
• Augustus rose to power and restored the Constitution - thus began the Empire

B. The Empire
B.1. The Principate (27 BC - 284 AD)
• Augustus kept the Constitution in form, but concentrated the power in his hands
• He was in forms merely princeps, but in substance his authority extended into every
department of government
• While Augustus did not dissolve the popular assemblies, the gradually died out, as they
merely ratified the wishes of the Emperor
• The Senate's power increased actually - the Principate was considered a dyarchy, as the
Emperor and the Senate both ruled (still, the Emperor was the more powerful party of
the duo)
• the Senate had legislative power --> senatusconsulta (its resolutions) had the force of
law
• The Emperor was very powerful because he relied on the army and on the fear of the
citizens that Rome will return to its years of civil war
• Because of the empire was ever growing, the Emperor soon became someone who was
not necessarily from Rome itself
• The last Emperors of the Principate era were very weak, resulting in economic and
political chaos due to wild taxation and devaluation of the currency

B.2 The Dominate

• Emperor Diocletian's rule started the period known as the Dominate, when the Emperor
became openly accepted as dominus and was given absolute power
• The Roman Constitution was discarded
• Diocletian recognized the issues that the Principate faced:
1. Politically: the Emperor depended too much on the army
2. Administratively: the Empire was too big to be ruled from a single central authority
3. Economically: the heavy taxation led to currency devaluation
• To fix these issues, Diocletian did the following:
1. Politically: installed the monarchy - he had all the power, the Senate was discarded
2. Administratively: the division of the Empire - Diocletian ruled the Eastern part and
Maximian (his co-Emperor) the Western part
3. Economically: the State controlled all commerce, resulting in a rigid hereditary class
system
• Diocletian's successor, Constantine moved the capital of the Eastern empire to
Constantinopole, thus creating the Byzantine Empire; he also stopped the persecution
of the Christians, resulting in a close association between the Byzantine Emperor and
the Christian Church
• The Western empire slowly died out, as it was attacked by the Goths - the Western
Empire ended in 476 when Emperor Romulus Augustus died
• In 527 Justinian succeeded to the throne, ruling over what was left of the Roman Empire
(Rome didn't make part of it anymore) - he proceeded to conquest a large part of the
former Empire, as his dream was to restore the glory of the Roman Empire and to
perpetuate Roman Law
Sources of Law
A. Statutes = express enactment of a general rule by a legislator or legislative body
• The foundation of Roman Law was the Twelve Tables, which were a result of the
struggle between the Patricians and the Plebeians - the Plebeians demanded that the law
be made public and readily available - as such, Twelve Tables with law were set up in
the marketplace
• During the Republic, there were 3 legislative bodies: the comitia centuriata and the
comitia tributa produced lex, while the concilium plebis produced plebiscitum (also
reffered to as leges)
• During the Principate era, Senatusconsulta gained the status of lex for a short time, but
soon it simply merged into direct legislation from the Emperor
• During the Empire era, the pronouncements of the Emperor (constitutiones) had the
force of lex - the constitutiones took multiple forms:
1. Edicta - closest to the contemporary idea of statutes, the edicts set out the Emperor's
orders and the policty (e.g. constitutio Antoniniana was an edict giving Roman
citizenship to all inhabitants of the Empire)
2. Mandata - administrative instructions to officials
3. Decreta - judicial decisions of the Emperor given by him as he was exercising
jurisdiction as a trial judge on appeals
4. Rescripta - written answers from the Emperor to questions or petitions

B. Edicts of Magistrates
• The edicts of the magistrates, mainly of the Urban Praetor, led to the creation of ius
honorarium - this law supplemented ius civile (the traditional law embodied by statutes)
• The edicts of the Praetor indirectly altered the law, as he was tasked with the
administration of private law between citizens
• The Praetor created new remedies for citizens, and thus new law - initially, a claim
could only be initiated in one of the 5 modes recognized by statute (legis actiones), the
Praetor created new course of actions
• This adaptation was carried out through the Praetor's Edict - this was a document
published by every Praetor at the beginning of his 1 year term of office stating the
circumstances in which he could grant new remedies
• As the Praetors constantly changed, they mostly kept the same Edict and only made
slight modifications for legal certainty
• During the Empire, the great jurist Julian was commissioned to make a final revision
of the Praetor's Edict and then the office was terminated
• Ius honorarium is meant to support, supplement and correct ius civile

NOTA BENE: Explanation of the Praetor's function and of the formulae

• The proceedings in a private law action were divided in 2 stages
1. Before the Praetor (in iure) - the Praetor drew up the formula
2. Before the judge (iudex) - the actual trial

• The function of the Praetor was not to try the action, but to decide whether it fit a pre-
existing formula or to grant a new one to meet the facts of the case
• The formula was basically a direction to the judge to condemn the defendant if he found
that the claimant's case could be proven or to absolve the defendant otherwise
Example: If Person A has to pay Person B 10,000 sesterces under a contract and he
doesn’t, the show up before the Praetor, which writes the following formula:
 "Let X be iudex. If it appears that the defendant ought to pay 10,000 sesterces to the
plaintiff, let the iudex condemn the defendant to pay 10,000 sesterces to the plaintiff. If
it does not appear, let the iudex absolve him."

C. Juristic interpretation
• The jurists advised the Praetor in the formulation of the Edict and in granting remedies,
they advised the iudex in the hearing and decision of a case and they advised private
individuals in the drawing up of documents and also in their conduct before the Praetor
or judge
• Very famous jurists: Papinian, Ulpian and Paul
• The jurists only worked during the Republic and the Principate eras
• Emperor Augustus awarded certain jurists the status of ius respondendi, which
conferred onto them the right to reply to legal issues with the Emperor's authority (made
their opinions legally binding)

The work of Justinian

• 529: The Corpus Iuris Civilis: a collection of all constitutions enacted by former
Emperors, edited as to remove contradictions
• 533: The Digest: a collection of the works of all jurists, edited by Tribonian and his
team to remove contradictions - has legislative force derived from the authority of
Justinian
• 533: Institutiones: a textbook for students (was given legislative force) - 3 main
chapters: Persons, Things, Actions
• 534: Corpus Iuris Civilis (2nd edition)
• Novelle: constitutions enacted by Justinian during his reign
• NOTA BENE: the "lex posterior" rule still applies - the constitutions in the Corpus Iuris
Civilis are not from 529/534, but from the date they were enacted by the respective
Emperors - that is why in any situation, the Digest/Institutions/Novelle is to be applied
over them
• NOTA BENE: even though the Digest contains the legal opinions of multiple jurists,
legally it was considered to be "the words" of Emperor Justinian! Thus, there can be no
contradictions in it, and if such a situation arises it has to be solved through
interpretation

Ius naturale, ius gentium

• Gaius made a distinction between ius civile (=statutory law, characteristic of a country)
and ius gentium (=universal law, applicable to all of mankind equally)
• The Stoics also referred to this concept of universal law as ius naturale
• "the law which natural reason establishes among all mankind is observed equally by
every people" - Gaius
• The Romans did not however make this distinction between positive law and natural
law, and by no chance did they consider natural law as superior and capable of
invalidating positive law
• There is however a theoretic difference between ius naturale and ius gentium - ius
naturale is law which SHOULD be observed by all mankind due to its moral standing,
while ius gentium is law which is ACTUALLY observed by all mankind (kind of like
an universal set of customary law) - example: according to ius naturale all men are free,
but ius gentium makes it okay to own slaves
• Ius gentium also meant the part of Roman law that was applicable both to the citizens
and to foreigners
Lecture 1

The claims of Roman Law

Initially, Roman law was just the law of the city of Rome (and later on of the Roman Empire)
BUT from the 11th century, Roman Law became the ius commune of Europe, as it was
rediscovered
What is Roman Law? - the most original product of the Roman mind, it is a system of principles
abstracted from detailed rules
What Romans did to create law was look at issues and disputes and try to find a solution - later
on, if a similar situation arose, they applied the same solution, which soon led to the creation
of principles, which became a system of principles that could be used to solve almost any
problem

Roman History
According to tradition, Rome was founded on 21st April 753 BC by Romulus and Remus - the
ruler of Rome was chosen through auspicium (they both went to separate hills and watched the
sky and whoever saw more birds flying by would become the ruler --- they started arguing
about the results of the birdwatching and Romulus ended up killing Remus)
Romulus became the ruler
Rome started with a succession of 7 kings (753 BC - 510 BC)
After the 7 kings, the Romans were done with kings and created the Republic (510 BC - 27
BC) - these days were regarded as the days of liberty by the Romans - gradually, the civil unrest
led to the creation of the Empire (27 BC - 476 AD (for the Western Empire)/ 1453 AD (for the
Eastern Empire)) with Augustus being the first Roman Emperor

Early Rome: sources of law

• Imperium = power of kings/magistrates (from imperare = to command) --> Imperium
entailed religious/executive/ military/ judicial/ legislative power
• Legislative power meant the power to enact edicts
1. EDICTS (edicere = to ordain by proclamation, to enounce)
• Edicts were basically 'ordinances'
• Edicts cannot be considered statutes, because their binding power only lasted as long
as the king that enacted them lived - the edicts died with him

Republic and the New Constitution after 510 BC

• 2 consuls now held the imperium (remember, imperium is one and indivisible, so the 2
consuls had veto power over each other - this veto power was called intercessio)
• The consuls were chosen by an assembly of the people for 1 year only - after that year
they could be prosecuted for their actions as consuls
• The consuls could enact edicts - for legal certainty, there was a custom of taking the
edicts of the previous consuls and slightly changing them if necessary
2. STATUTE (lex)
• The statutes were enacted by an assembly of Roman people (comitia)
• A magistrate wanted to propose a bill -> Senate was consulted on the proposal ->
magistrate called for an assembly and proposed the bill -> People voted yes/no -->
adopted bill became statute (lex - leges)
• A statute remained valid until revoked by the comitia through a new vote
• Statutes are independent of the imperium of the magistrates (and superior to imperium)
 • Voting procedure in comitia
• Only male citizens could vote
• The voting wasn't based on the idea of "one man one vote", but by social classes

• The Senate was an advisory body composed of older Patricians (the oldest heads of the
families of Rome)
• The Senate was initially the advisory body of the King, but it continued its function
during the Republic

• Social struggle in the Republic

• Patricians vs Plebeians - there were some rich Plebeians that also wanted to hold
positions of power
• Thus, the Plebeians went on multiple strikes (they left the city entirely and moved to
the Holy Mountain)
• 494 BC: As a result of their Plebeian strike, there was a concession between the
Patricians and the Plebeians - the plebeian tribune (tribunus plebis)
• The plebeian tribune held no imperium, but it had a right of veto
• 451 BC: The Plebeians demanded the codification of law (the rules of customary law
were kept secret by the Patricians) - thus, the law was codified on 12 tables which were
put in the marketplace --> Law of the XII Tables (lex duodecim tabularum) - the
problem was that the Plebeians still didn't know how these rules were interpreted
• 400 BC: One of the scribes of a Patrician judge published the notebook on the
interpretation of the laws, making it accessible to the Plebeians
• 367 BC: through leges Liciniae Sextiae, plebeians were given one consul, but this was
a compromise - the Patricians demanded a new magistrate --> the creation of a Patrician
praetura

• The Praetor
• If you wanted to go to trial, you needed the permission of the Praetor
• There were 2 Praetor offices: praetor urbanus and praetor peregrinus (for trials
involving foreigners)
• The Praetor influenced Roman Law through the Praetor's Edict (while the Praetor held
office for 1 year, for legal certainty the custom became for every Praetor to adopt the
previous Edict and only make slight modifications)

Lecture 2

The Empire
• Sovereignty was transferred to the Emperor - his dispositions became constitutions
• There are various types of Imperial legislation:
1. Edicta
2. Mandata
3. Rescripta
4. Decreta
• Emperor Hadrianus asked the most important lawyer of those times (Salvius Julianus)
to draft a definitive version of the Praetorial Edict, as to stop the constant influence that
the Praetor had over ius civile (the emperor had complete legislative power, so the
Praetor should not influence law) -> this resulted in the Edictum Perpetuum
 • As all legislation, statutes and edicts needed interpretation - there were lawyers who
studied the law and wrote comments on its interpretation
• Augustus noticed this trend and chose the some jurists which were awarded with ius
publice respondendi - the advice given by these jurists was to be seen as a second source
of law - this law was known as ius
• Ius became very present after enactment of the Edictum Perpetuum, as the jurists could
write comments on it, but also on the comments of other jurists - they even started
writing books and developed law schools where they debated the interpretation of
Edictum Perpetuum
• Law during the later Empire: leges (law from the Emperor) + ius (legal writings from
the jurists)

• The Roman State needed to be restructured - in 330 AD Emperor Constantine founded

a new Rome (Constantinople) that was meant to be the new capital
• In 395 AD, Emperor Theodosius I divided the Roman Empire in two - The Western
half governed from Rome and the Eastern half governed from Constantinople
• Mirroring the 2 consuls situation, there were 2 emperors with imperium (nota bene:
imperium is one and undivided) - thus, one emperor didn't only have imperium over his
actual half of the empire, but on the entirety of it
• 476 AD - Fall of the Western Empire as Emperor Romulus Augustulus is overthrown
by the German king Odoacer; while factually there was no emperor in the Western part,
there was still an Emperor in the Eastern part which legally and theoretically had
imperium over the entire Empire, so de iure the Western part did not fall; factually it
did.
• Emperor Theodosius II (408 - 450) tried to codify Roman Law:
• 426 AD: Lex Citandi (Law of Citations) - People can only use comments from 5 famous
jurists (Gaius, Paulus, Ulpianus, Modestinus, Papinianus) in courts - Papinianus'
comments weighed the heaviest, as he was considered the legal hero of Roman Law
• 438 AD: Codex Theodosianus put together all the imperial law from 300-438 that
Theodosius II considered important; Theodosius II tried to systematize the imperial law
he gathered in the Codex, as such everything was generalized

• Emperor Justinianus (527 - 565) came to the throne - his plans was to revive the greatness
of the Roman Empire armis legibusque (through the army but also through the law) - he
reconquered many of the parts of the former Western Empire through force, but more
importantly, he codified Roman Law (leges + ius)

Emperor Justinianus - Corpus Iuris Civilis

• Justinianus wanted to systematize and generalize the 2 sources of Roman Law
(constitutions and legal writings)
• 529 AD: Codex Justinianus (1st edition) - it was a codification of ALL imperial
legislation (if a law was not included in the codex, it was no longer imperial legislation)
• the Codex was EXCLUSIVE! - if 2 rules in the Codex contradicted each other, the
following rule applied: the newer rule applies! (lex posterior derogat legi priori)
• 533 AD: Digesta ('Pandects') - it was a codification of the jurists' law
• Justinianus didn't only want the comments of the 5 jurists from Lex Citandi, but from
ALL jurists - he merged comments from various jurists
• IMPORTANT: there is no lex posterior rule in the Digest, as Justinianus stated that the
Digest itself was imperial law created by him - "everything that is in the Digest comes
from my mouth and cannot be contradictory"
 • IMPORTANT: the Digest prevails over the Codex!
• 533 AD: Institutiones ('Elements') - this was a textbook for students on Roman
legislation that was considered so important by Justinianus that he even promulgated it
as imperial legislation
• IMPORTANT: the Institutiones prevail over the Codex
• 534 AD: Codex repetitae praelectionis (revised ed.) - Justinianus adjusted the content
of the initial Codex to fit in better with the Digest)
• The Digest and the Institutiones prevail even over this revised edition!
• 534 AD: Novellae (new constitutions) - New constitutions enacted by Justinianus

Working Group

Question 3
The occupation of jurist became very necessary in the Roman state – Roman law, as all laws,
required interpretation, and the common people did not have the means to do so; therefore, they
needed advice from people who constantly studied the law. These jurists were very present in
the judicial system and often held offices or advised praetors or judges. Emperor Augustus
noticed the importance of jurists and decided to award some of them the status of ius publice
respondendi, giving the comments of these jurists legal force. This was also legally recognized
by Emperor Theodosius II in Lex Citandi and later on in the Digest by Emperor Justinianus.

Question 4
Emperor Theodosius II decided that only the opinions of 5 jurists were to be followed (through
Lex Citandi), Papinian amongst them – as he was considered the best jurist, his views prevailed
whenever there was a contradiction between the opinions of those 5 jurists. (Lex Citandi
explicitly recognized his higher status as a jurist in comparison to the other 4).
Question 5a
The judge would have to apply the lex posterior rule – given that the Novellae were enacted
after the constitution decided upon by Marcian and later recorded in the Codex Justinianus, the
judge would have to apply the Novel 105.

Question 5b
The issue of contradiction was not possible for the Digest as Emperor Justinianus regarded it
as his own work, all enacted at once – even though the Digest compiled the opinions of several
jurists, its legal status was that of statute given (enounced) by Justinian, as if all the words
would have come directly from him and therefore they could not be contradictory.
Week 2
Literature for lectures
Formalism
• In primitive systems, such as the Roman one, mere agreements or simple expressions
of intention do not create any legal consequences
• To create/transfer a right, one must perform a particular act or say some particular
words (this "ritual" is known as the form)
• If the form is not followed, no right is created or transferred; if the form is followed,
but the intention did not exist, the right is still created/transferred!!
• Roman law had very few forms, but they were used for a wide variety of purposes
• There were 4 main forms:
1. Stipulatio: oral question and answer, only used in the law of contract
2. Act before the comitia curiata: a "private bill" passed by the comitia, was used in
adoptions and wills - basically, the magistrate approved a private act
3. Mancipatio: ritual by which property was transferred - in the presence of witnesses, the
transferee received the object he bought and paid for it, while reciting a specific text;
mancipatio was more about the transfer of a right, than the actual sale and was used for
the transfer of slaves
4. In iure cessio: method of transferring property rights applicable to any property - the 2
parties to a transfer go before the Praetor and the transferee holds the object while
reciting a specific text; the Praetor then asks if the transferor opposes and "adjudges"
the thing to the transferee

Main features of the law of persons

1. Citizens?
• A non-citizen had no rights under the Roman ius civile
• There were some exceptions made for their Latin neighbors who could have the
following rights: commercium (right to be party to mancipatio or to a contract in
general), conubium (right to marry a Roman citizen) and testamenti factio (right to make
a Roman will)
• This difference became obsolete in 212 AD when all residents of the Empire were
granted citizenship (with the exception of Junian Latins - which were imperfectly freed
slaves)
2. The Family
• The family was considered a legal unit in itself - its head, the paterfamilias was its sole
representative before the law (even if the other family members (filiusfamilias) were
also citizens, they didn't have much legal power)
• The paterfamilias had patria potestas, meaning they had complete control over his
family (he could even kill them) and he was the only one that could own property
• Patria potestas could be artificially created/terminated, but it was generally reserved for
the oldest male in the family
• In early law, the paterfamilias had the same power over his son as he did over his slaves
- formalities for emancipation or adoption were basically the same as for the transfer of
property (the paterfamilias could even sell his sons)
 • A filiusfamilius could own nothing and anything that he acquired was automatically the
paterfamilias' property - it became customary for the paterfamilias to let the
filiusfamilius to use the objects (peculium) he acquired for free and not to interfere with
them, but legally they still belonged to the paterfamilias
• Patria potestas revolved around agnatic relations: an agnate is a relative in the male line
(regardless of that person's gender)

Explanation: If a man has a daughter and that daughter gives birth to a girl:
• The man is agnatically related to his own daughter
• The man is NOT agnatically related to his granddaughter (because a woman comes
between them in the family tree)

3. Slaves
• The law regarded the slave as a "thing" rather than a person
• Over time, certain constitutions were enacted protecting slaves against ill-treatment
from their masters (masters could be punished criminally for abuse of power over their
slaves)
• Factually, the life of slaves was very different depending on their occupation - slaves
which acted as doctors, teachers or managers of an estate were generally treated as "free
men" by their fellows
• Sometimes, masters would even give their high-ranking slaves peculium (they could
open businesses etc. which legally belonged to the master, but socially to the slave
themselves)
• As such, slaves could be running an entire business by themselves and buying their
freedom (even though by law everything they had was actually owned by their master);
in regards to peculium, a slave could act as an independent person

Creation and termination of slavery

• One could be sold, captured or born into slavery
• Slavery could also end through manumission:
1. Manumissio vindicta: a friend of the slave and the owner met before the Praetor; the
friend claimed that the slave was a free man and if the owner did not deny that, the
Praetor declared the slave a free man
2. Manumissio censu: the master consented for the slave to be added to the list of citizens
composed by the Censors
3. Manumissio testamento: a master could put down in his will that certain slaves are to
be freed upon his death
4. Informal manumission: slaves could also technically be freed through letter (per
epistulam) or before witnesses (inter amicos) - this method was not actually recognized
by the law, but only devised by the Praetor - as such, the "freed" slave was not actually
free and could not bring actions himself or own property - his enjoyment of freedom
was only de facto protected by the Praetor by barring any action brought by the master
to assert ownership - this situation was later corrected through lex Junia - if the slave
was not freed through any of the first 3 methods, he became a Junian Latin (not a citizen,
but had the right of commercium)

• Consequences of manumission:
• The freedman was both a libertinus and a libertus at the same time
• Libertinus - indicates the relationship with society as a whole - the freed man was now
either a citizen or a Junian Latin
 • Libertus - indicates the relationship with the former master - the freed man owed his
patron the duty of respect (obsequium) - e.g., he could not bring a legal action against
his former master without the Praetor's permission

Creation and termination of patria potestas

• Patria potestas was normally created by birth within a Roman marriage, but it could
also be created artificially through:
1. Adrogatio (adoption of a person who is independent): could be carried out only with
the approval of the comitia curiata, after an investigation undergone by the pontifex
maximus, as adrogatio basically means that a family must disappear and merge with
another; there were some strict criteria
2. Adoptio (adoption of a person who is under the patria potestas of another): the Twelve
Tables stated that a son could be free from the patria potestas of his paterfamilias if he
was sold three times - as such, adoptio became very complicated: the paterfamilias of
the child sold him to the person adopting, then the adoptive family freed him through
manumissio; this was repeated 3 times, and after that the adopter makes a claim before
the Praetor that the child is his son - Justinian removed this cumbersome ritual

• After adrogatio or adoptio, the son had the same legal status as the natural sons of the
paterfamilias - he took his name and acquired rights of succession
• Because very often adopted children children were manicipated by their adoptive
family (meaning they lost rights of succession both in their natural and adoptive
families), Justinian changed the legal meaning of adoptio - now, adoptio was just the
creation of a right to succession in a new family, but the child remained with his natural
family (adoptio minus plena)
• Patria potestas is terminated either through adoptio, adrogatio of a paterfamilias, by
death or loss of liberty/citizenship
• Most important artificial method of terminating patria potestas was emancipation: the
same ritual as in adoptio was followed, but at the end the "adoptive" father simply
claimed before the Praetor that the son was free, rather than in his potestas

Marriage
• Marriage in the Roman world was mostly a social fact, about which the law had very
little to say, and which barely impacted on the legal condition of the parties
• All that was necessary for a marriage was:
1. the right to do so (conubium - belonging to all Romans)
2. paternal consent (if one of the parties was in the patria potestas of someone)
3. a manifestation of the common intention to get married
• Divorce was also very easy and common: all one needed was to manifest the intention
to no longer be married
• Legally, marriage was only important for Romans in small matters: was the husband
allowed to prosecute the wife for adultery/ the prohibition on gifts between husband
and wife etc.
• During the Empire, the husband had no rights over his wife or her property - if she was
sui iuris she remained independent and if she was alieni iuris she remained in the
potestas of her father
• During the Republic however, marriage was more complicated: the wife was in the
manus of her husband (similar to patria potestas) - manus was usually created by
 coemptio (a form of mancipatio of the woman to the husband), but it could also be
created through confaerreatio (religious ceremony) or through usus (prescription)
• A Roman marriage (iustae nuptiae) could exist only if both parties were Roman citizens
or at least foreigners with conubium - this was important to know in order to determine
the status of their children
• Children born from iustae nuptiae took the legal status of their father (according to ius
civile); children born from a non-Roman marriage took the legal status of the mother
(according to ius gentium)
• There was also the alternative of concubinage - this was very similar to marriage, but it
lacked legal recognition (so it was basically just living together as a couple)

Guardianship
• Tutela impuberum: what happens to a child when his father dies?
1. Who becomes his tutor?
• The first rule was that the nearest male relative became the guardian (tutela legitima)
• The father could however appoint a different tutor through will (tutela testamentarius)
• If none of these applied, a magistrate could appoint a tutor (tutela dativus)
• It's very important to remember that a woman (not even the mother) could never be a
tutor - tutela was an extension of patria potestas, which a woman could never have
2. For how long is the child under guardianship?
• The child became independent at the age of puberty (14 for boys, 12 for guys)
• It was considered that at that age they could have their own children, which would be
entitled to inheritance, making the inheritance claim of the guardian inconvenient
3. Accountability of the tutor
• The tutor was concerned mainly with the property of the child; upbringing and
everything else was left in the care of the mother
• In the early days of the Republic, the tutor was only legally required not to fraudulently
misappropriate the property of the child (pupillus); in the late Republic, the Praetor
created a remedy (actio tutelae) allowing the child to bring the tutor to court upon
reaching puberty for management of his property in bad faith
4. Functions of the tutor
• The tutor could either administer the property himself or validate the acts of the pupillus
• The former was very burdensome, because Roman law lacked the concept of agency
(acting on behalf of someone and thus creating rights and obligations for them instead
of you) - thus, the child could not benefit from any investments the tutor did with his
property
• So, the pupillus could directly incur rights and obligations only if he acted by himself -
he could do so after the age of 7, with the validation of his tutor
• The child could acquire rights without the approval of the tutor (e.g., he could receive
gifts or promises), but he could not alienate them or incur duties without auctoritas
(express oral approval from the tutor)
• Therefore, auctoritas was needed for most transactions
5. What happened after the tutela ended?
• It became apparent in the later Republic that leaving children at the age of puberty
manage their property was not ideal - they were prone to bad transactions - thus, a new
institution was created to protect young people (under 25) from being taken advantage
of financially
• 200 BC (Lex Plaetoria): penalty on anyone who fraudulently took advantage of an
inexperienced young person - the Praetor could either restore the minor to his original
position through restitutio in integrum or by barring the transfer of property
 • Soon, people became wary of transactions with young people and an adult witness
always had to be present to such transfers (this institution became the curator - his
consent was not necessary nor in itself sufficient to prove good faith, but it was a type
of evidence)

Capitis Deminutio
• Capitis deminutio maxima = loss of liberty, citizenship and family rights (e.g., through
enslavement)
• Capitis deminutio media = loss of citizenship and family rights (usually as a
punishment)
• Capitis deminutio minima = loss of family rights (through adoption, adrogation,
marriage with manus, emancipation)

Lecture 3

Ubi remedium, ibi ius

• Modern law: ubi ius, ibi remedium - in modern times we first ask ourselves if we have
a right, then we go to court and get a remedy
• In Roman Law, it was the other way around: you could only go to court if you have a
remedy available (if there is one, it means that you also have an enforceable right)
• In Roman law, you could bring your case before a judge if a magistrate (the Praetor
specifically) decided that you can (similar in Common Law, you could go before a
common law court if the Chancellor gave you a writ)
• It was very important for the Romans that the right words and forms were used

Forms of procedure
1. Legis actiones (found in the Law of the Twelve Tables, used until the rule of Emperor
Augustus)
2. Actiones per formulam (involved using specific "phrases", only the priests knew all
these phrases, so it was mandatory to consult a priest before going to trial in order to
find the applicable ritual)
3. Cognitio extraordinaria
• In legis actiones and actiones per formulam, the judge was just a random Roman citizen
who was chosen only for that one case
• In cognitio extraordinaria, the judges were actually professionals, appointed by the
Emperors - slowly, the first 2 procedures were abolished (as the Emperor wanted to
have control over the judiciary)

Actiones per formulam

• In 367 BC, a praetor urbanus was appointed - the Praetor issued an Edict, containing
all the complaints that could be filed before a court; the Praetor was tasked with judging
the facts and writing a document appointing a judge and describing the facts
• In 242 BC, a praetor peregrinus was appointed to deal with cases involving non-
Romans (ius civile did not apply to them)
• In 150 BC, the procedure per formulam became very popular and the legis actiones
procedure died out (Lex Aebutia)
• The Praetor's Edict was pretty much the same every year, as it became customary for
the Praetor to just adopt the Edict of his predecessor and only make slight changes - in
the Empire, the Emperors wanted to have complete control over the legislative process,
 so in 135 AD the Edictum Perpetuum was enacted by the Emperor Hadrianus and it
was never changed again

Contract of sale forms

• Romans could only sell certain things through manicipatio – it was a complicated ritual
• Foreigners could not participate in mancipatio, so for them a contract of sale was
concluded through consensus (if they could prove they agreed on a price, there was a
valid contract of sale)
• The Romans realized mancipatio was too complicated and adopted consensus as well
• Ius gentium = the law as it was applicable to everyone, including Romans

Legal counsel

1. In iure (= before the Praetor)

• You needed a lawyer to help you choose the right forms and words - these lawyers were
known as iurisconsulti
• The iurisconsulti were generally rich Patricians
• The Roman system was based on patrons and clients - the Patricians usually were
patrons who helped their clients (lent them money, gave them legal advice) in exchange
for their vote in the elections for Senate/Consul/Praetor etc
• Technically, the iurisconsulti worked for free, but they were not opposed to getting
honorary amounts of money

2. In iudicio (= before the judge)

• Because the judge was not a professional legal scholar, you didn't use iurisconsulti
before the judge, but orators (people who were good at telling stories and convincing
the judge that you were right)
• Example of famous orators: Cicero

In iure
• Indefensus: if the defendant failed to present himself before the Praetor or refused to
defend himself, the Praetor simply ruled in favor of the complainant and didn't send the
case further to trial
• if the defendant threatened not to comply with the Praetor's decision later on, the Praetor
could declare him missio in bona - he would be declared bankrupt and all his belongings
would be taken away - this is in cases of actio in personam
• Actio in rem: if the complainant argued that his property was in the possession of the
defendant and the defendant did not defend himself, the Praetor simply ordered the
defendant to give it back
• Confessus pro iudicato habetur: if the defendant confessed, the case did not go to trial,
but the Praetor simply ordered him to pay or give back the object
• If the defendant denies the claims, the case goes to court

Example of a formula of the action asserting ownership (vindicatio rei)

"Titius must be judge. If it appears that the thing in question belongs to the plaintiff at
civil law (ex iure Quiritium), then unless at the direction of the judge the defendant
restores the thing, let the judge condemn the defendant to pay the value of it to the
plaintiff. It if does not so appear, let the judge absolve the defendant"
• The clause written in bold above is very important (the defendant voluntarily giving the
thing back) - the only thing a judge can award is the obligation for the defendant to pay
a sum of money (omnia iudicia pecuniaria sunt)
• The judge could not enforce the judgment, so if the defendant did not pay, the claimant
would go back to the Praetor and file another action - this time the defendant had to pay
twice the sum decided by the judge, otherwise he would be declared missio in bona
• Clausula arbitraria (restitution clause) - gives the defendant the option to give the object
back and not be condemned to pay its value - the judge would be the one to evaluate the
value of the object (so he just asked the claimant what the value was, and obviously the
claimant always claimed extremely high amounts of money, forcing the defendant to
actually give the object back rather than pay that much money)

• Exceptio : situation in which the defendant does not simply deny the claim, but actually
brings legal arguments that invalidate the claimant's arguments

Example of a formula containing an exceptio in the case of a stipulatio

"Titius must be judge. In so far as the defendant has promised to plaintiff a performance
not expressed in monetary terms and the day by which this performance must have been
made had come, let the judge, unless the plaintiff's bad faith is or has been involved,
sentence the defendant to the payment of a sum representing the value of all the defendant
owes the plaintiff in view of this fact. If this does not appear, let the judge absolve the
defendant."

Example of a formula containing an exceptio in an actio empti

"Titius must be judge. In so far as claimant bought from defendant the thing involved, to
all the defendant because of that has to give or do in accordance with good faith, let
the judge sentence the defendant. If this does not appear, let the judge absolve the
defendant.

• The example above is a contract of sale - both parties have an obligation!

• If the circumstances of a contract change and the balance of obligations between the
parties changes and becomes too burdensome on one of them, the judge can use the
standards clausula bona fide

• The Praetor can sometimes use fiction to fill in formulae (actio utilis):
For example:
1. Acsi heres esset (as if he was the heir) - sometimes, Roman citizens wanted to leave
their belongings to non-Romans (example Cicero wanted to award his secretary Tiro a
part of his estate, but couldn't do so because Tiro was Greek - in these situations, you
could informally request your actual heir to follow your wish; if the actual heir did not
follow through, the non-Roman would go to the Praetor and the Praetor would use
fiction in order to be able to give him a remedy)
2. Acsi anno/biennio possedisset (as if you were in the possession of something for a
year/2 years) - you could become owner of an object through prescription in good faith;
if you lost the object in the process of the acquiring ownership, you could claim against
anyone else except the real owner through fiction
Lecture 4
Persona
• = an entity capable of having rights and duties
• There are 2 types of rights (absolute rights and personal rights)
• The Romans did not consider slaves as personae (as they had no rights during their
enslavement) - but they could become personae because they could become freedmen
• The Romans did not have the concept of legal person (= corporations etc.)!

Status
1. Libertas (= liberty)
• Libertas was related to whether you were a slave or a Roman citizen
• How did one become a slave?
• According to ius gentium, if you fell hostage in a battle you became a slave - under
Roman law, there was a right that if you escaped from captivity, you regained your legal
status as a Roman citizen (and your enslavement period was retroactively erased as if it
never happened) (ius postliminii)
• According to ancient Roman law, if you did not pay your debts, you ended up in the
ownership of your creditor (and the creditor could even sell you)
• According to ius gentium, the children of a female slave were also slaves irrespective of
the status of the father; but if the mother was a free woman (or had been at any point
during the pregnancy), the child would also be a free person

• What was the status of slaves?

• Slaves were usually the ones running the business of their masters (because Senators
were not allowed to run businesses themselves) - thus, the businesses were given in
peculium to the slaves to run (this was not ownership!!! The masters were still the ones
incurring rights and debts from their property in peculium) -- peculium meant factual
ownership, but not legal ownership
• However, if the slave had peculium and then became a freed person, they would be liable
for their actions during their management of the peculium

• How could you become a free man?

• Through ius postliminii (retrospectivity - legally you were never a slave, factually you
were)
• Acquire freedom by being set free by your owner through manumissio (there were
various forms:
i. Through vindicta (fake trial - if a 3rd person claimed before the Praetor that the slave
was a free man and the owner did not deny, the Praetor declared him a free man)
ii. By the censors (censu) - if the master allowed the slave to be counted as a citizen by
the Censors, he became a free man
iii. Through testamento (will) - the master could free the slave upon his death through his
will
• Acquire freedom informally - the master simply told the slave that he was free in front
of witnesses, if the Praetor believed the story (based on the evidence of the witnesses),
he would protect the freed man

2. Civitas (= citizenship)
• One could be a citizen (civis Romanus) or a non-citizen (peregrinus)
 • Ius civile could only apply to Roman citizens; ius gentium applied to everyone else
• There was a praetor urbans that dealt with ius civile and a praetor peregrinus that dealt
with ius gentium
• This division between citizens and non-citizens was mostly done away with by Emperor
Caracalla in 212 through Constitutio Antoniniana (he pretty much gave Roman
citizenship to everyone)

3. Familia (= family rights)

• Patria potestas - the paterfamilias (always a man) held absolute power over his relatives
• Patria potestas = unfettered power of life and death (ius vitae necisque) over his alieni
iuris
• Sui iuris (= independent, outside the patria potestas of anyone)
• How did you become sui iuris?
i. Under the law of the Twelve Tables, if a paterfamilias sold his child into slavery 3
times, the child would become free (as a punishment for the paterfamilias) - the Romans
took this ritual and adapted it for Emancipation!
ii. Emancipation for sons: the paterfamilias "sold" the son to a friend 3 times, the friend
immediately freed him each time (manumissio) and after the 3rd time, the son became
sui iuris!
iii. Emancipation for all others descendants (daughter, grandson etc.) - the same
Emancipation process but the descendant was only sold once and upon being freed,
they were immediately sui iuris

• Alieni iuris - everyone under the patria potestas of someone were his alieni iuris
• How did you become alieni iuris?
i. Adoptio: paterfamilias of family B adopted an alieni iuris from a family into his own
family (alieni iuris in family A -> alieni iuris in family B)
ii. Adrogatio: paterfamilias of family B adopted someone who was sui iuris (and
everything in his patria potestas) into his own family (sui iuris in family A -> alieni
iuris in family B; complete extinction of family A) - this was only possible if the
comitia curata gave its permission, after the Pontifex maximus had undergone an
investigation

• Marriage by manus (ancient Roman form of marriage)

• The woman would enter the manus of the husband - she would be kind of an alieni iuris
to her husband
• Marriage by manus could be achieved by prescription - if the woman lived with the man
for a year continuously, she would automatically enter into his manus
• The only way to block the prescription way by ius trinoctii - the woman would have to
leave the house for 3 nights in a row every year to avoid getting into a marriage by
manus

• Marriage sine manu (subsequent Roman form of marriage)

• The Romans were NOT formalistic about marriage - all that was needed was a shared
intention to be married (no ceremony or ritual was needed)
• No consummation of the marriage was necessary for it to be valid!

• Divorce
• Divorce was also NOT formalistic at all - all it took was for one of the spouses to express
the intention not to be married anymore!
 • Matrimonial property law
• The marriage had NOTHING to do with the property of the spouses - their property is
separated; the husband and wife hold their own estates
• The wife would give a dowry (dos) to the husband before the marriage (initially used to
cover the costs of the household) - there was a lot of debate about what happens to the
dowry after divorce
• Justinian decided that the wife would have a hypothec over the dowry for the entirety of
the marriage, after divorce she had a security right to get her dowry back!

• Guardianship (only applies to minors with their own estate, meaning they are sui iuris)

Age Validity of his acts Institution

protecting them
Infans: <7 years old Null and void Tutor
Impubes/pupillus: <12 (girls) Null without auctoritas (= explicit Tutor
/14 (boys) years old approval from the tutor)
Pubes: 12/14 < age < 25 years Consensus of the curator was Curator
old advised, but not necessary

• Other forms of Guardianship: You could have a curator if you were mentally ill (furiosi)
or a spendthrift (prodigi)

Literature – Working Group

Law of Things
• The law of things refers to rei - rei not only includes material things (like a table or a
piece of land) but also abstract things (like debt) - rei covers all concepts which have
economic value
• The law of things governs the creation, transfer and enjoyment of economic assets
(meaning all things and rights which can evaluated in monetary terms)
• Since this is a very broad notion (almost encompassing all of private law), Gaius makes
the distinction between the law of property (things in the narrow sense), law of
succession and law of obligations

Fundamental distinctions - property and obligations

• A person's assets are of 2 types:
1. Property = owning something (e.g., his house)
2. Obligations = being owed something (e.g., his right to receive the goods he ordered
from a seller)
• Thus, a distinction arises between the types of actions:
1. Action in rem refers to a relationship between a person and a thing - this action is
available against persons generally if they interfere with one's property (law of
property)
2. Action in personam refers to a relationship between persons - this action is available
against a particular person/persons which owes the claimant something (law of
obligations)
 • The Roman system lacked an institution to enforce its judgments, so the result of a
successful action was just an order for the defendant to pay a sum of money; it was the
duty of the claimant to seek the execution of this order! (he could ask for the execution
of the defendant if the defendant did not pay)
• Despite this, actions in rem usually ended up with the defendant returning the property
rather than paying (as the claimant would ask for a very high sum of money)

• Rights in rem and rights in personam are created through different acts - a contract is
needed for rights in personam, while a conveyance is needed for right in rem
• This difference was important for the Romans! Since rights in rem can be claimed
against everyone, they should never be secretly created or transferred (however, in the
later Empire the Romans gave up on the very public rituals of conveyance, since they
became futile)

• Classifications of res:
1. Res mobiles, res immobiles: the Romans distinguished between movables and
immovables (land and houses); this distinction was present in the law on prescription
(only 1 year was needed for movables, but 2 for immovables)
2. Res mancipi, res nec mancipi: Res mancipi (slaves, farm animals, Italic land,
servitudes) could only be transferred through mancipatio or in iure cessio; everything
else (res nec mancipi) could be transferred by simply delivery (traditio)
3. Res corporales, res incorporales: the Romans distinguished between physical and
abstract things - this distinction was important because abstract things could not be
possessed, so they could not be acquired by usucapio nor conveyed by traditio

Ownership
• Ownership can be understood as absolute in terms of enjoyment (that is indeed
disregarding the legal restrictions imposed on the owner for the general well-being of
society and the restrictions placed on his enjoyment by other's rights (such as servitude)
on his property
• Ownership can also be understood as absolute in terms of title - ownership, as a property
right, is the only right of its kind in Roman law

Working Group

Question 1
Real rights (relating to the relationship between a person and a thing) are enforceable against
everyone and are tied to property. As such, a right to servitude is enforceable against the owner
of that property, irrespective of whom the owner is or if the ownership was transferred to
someone else.

Question 2
Let’s assume A has a servitude right on B’s land. B sells the land without informing C of A’s
right. Despite this, A will still have a right of way and C will be able to sue B for damages, as
the land was not as was agreed upon in the contract. There is no such thing as 3rd party
protection in Roman Law. Ulpian suggests that the fraudulent delivery of an object
encumbered with a real right cannot affect that real right (“he diminishes nothing of the right”),
but he also suggests that the seller “binds himself” to the bona fide purchaser – the buyer is
entitled to claim damages from the seller.
Remember: There are 2 types of legal actions:
Actio in rem: if you have a real right, you claim FOR your property (the defendant is not very
important)
Actio in personam: if you have a personal right, you claim against a specific person who has
failed to keep their contractual obligation towards you
Creditor = someone who IS OWED something; Debtor = someone who OWES

Question 3

Real rights: ownership, servitude, pledge, superficies, emphyteusis} all these are protected by
actio in rem
Ownership is protected by rei vindicatio. Servitude is protected by action confessuria.
Pledge/hypothec is protected by action Serviana. Superficies and Emphyteusis are protected
by rei vindication utilis.

Question 4
Generally, a judge could only order the defendant to pay a sum of money to the claimant.
However, in an action in rem, he could be constrained to give the object back by the claimant
asking for a very high price.

Question 5
Not really – Blasius never had any real right over the horse as delivery was not made. He only
had a personal right against Aulus (which owed him the delivery of the horse). Blasius can only
bring an action against Aulus. According to CJ. 8,27(28) 12 (Emperors Diocletian and
Maximian), ownership passed to Crassus.

Question 6

Actio serviana is an actio in rem, meaning you would have to sue the person who currently
owns the property you have a pledge on. The debtor has sold and delivered the object on which
the pledge was put, so there is no point in suing him anymore, but in suing the purchaser. Thus,
you could only sue through an action in personam against the debtor.

Question 7
a. The personal claim is most attractive and practical.
Where the debtor has a lot of money, they can pay the debt and there’s not a lot of
issues.
b. The real claim is most attractive and practical.
If the debtors is not that rich, it’s easier to find the new owner of your object and claim
against him.

Question 8
8a. Can Dolabella successfully claim from Crassus?
No. The restriction upon the sale was agreed upon by Dolabella and Nepos and has no influence
on Crassus. The promise not to sell the ring before turning 40 or marrying was right in
personam that Nepos owed Dolabella and is thus enforceable only against Nepos.
 8b. Can Dolabella successfully claim from Nepos?
Yes. According to Cf. D. 18,1,75 (Hermogenian), Dolabella can claim damages from Nepos
for breach of contract.

Question 9
Terentius can only bring an actio in personam against Claudius, as he had a contract with him.

Question 10
In the Dutch solution, the contract between Terentius and Claudius becomes a contract between
Terentius and Ursus – thus, Terentius can sue Ursus.

Question 11
Protection of the tenant.
Week 3
Literature for lectures
Historical Development of Contracts
A. Early days of Roman Law
• debt = a man owed another a certain thing or sum
• A debt could result from:
1. An illegal act (a man injured another or damaged his property)
2. A formal act
3. Loss of entitlement to a thing (gives rise to the obligation to return the thing - e.g. a
loan)
• There was no differentiation between them in the beginning - they were all just debts
• In the early days, agreement between the parties was neither necessary nor sufficient to
give rise to obligations

B. Origins of contract
• Promissory debt = debt arising from a formal act (e.g. debt arising from stipulatio) -
produces a change in the status quo
• Real debt = debt arising from an informal payment/transfer - restricted to debts of a
specific object/sum of money that need to be returned to the creditor - restores the status
quo
• Many commercial transactions required a more developed form of stipulatio - the form
was too restrictive to ensure the fulfillment of a service --> the first step was adapting
the stipulatio (the promisor had to promise to pay penalties in case of non-performance)
• Stipulatio was then extended to include all types of promises (1st century B.C.)

C. Consensual contracts
• Soon, it became accepted that in certain types of transactions the parties could be bound
by mere agreement without the need for the traditional forms

D. Unilateral and bilateral contracts

• Stipulatio was an unilateral contract - only one party has rights and the other party only
has obligations
• Consensual contract are bilateral - the parties both have rights and obligations

E. Stricti iuris and bonae fidei actions

• Unilateral contracts were enforced by stricti iuris actions - in a stricti iuris action, the
judge had to simply decide whether the defendant was liable according to the law or
not
• Bilateral contracts were enforced by bonae fidei actions - bona fidei actions implied the
addition of 3 specific words in the formula for the action - in a bona fidei action, the
judge also had to take into account whether the defendant acted in accordance with
good faith
• The distinction was fundamental only until the 1st century BC when the defense of bad
faith (exceptio doli) was accepted in stricti iuris actions
• The distinction still remained important, as in bilateral contracts, the judge had to strike
a balance between the obligations of the party according to good faith - in a unilateral
contract, there was no balance to be struck
 F. Classifications by Gaius
• Gaius concluded that there are 4 types of contractual obligations:
I. Formal contracts:
1. Obligations arising verbis: by saying certain words (like in stipulatio)
2. Obligations arising literis: from a document
II. Informal contracts:
3. Obligations arising consensu: from a consensual contract
4. Obligations arising re: by the transfer of a thing

G. Law of Contracts (plural)

• It's important to understand that Roman Law had a law of contractS, not of contract -
there were no unitary rules applying to all contracts, but a list of accepted contracts
• There are 3 practical consequences for the lack of generalized rules:
1. Every type of contract had its established rules and consequences - thus, the parties
could know more easily what was legally expected of them
2. Every type of contract had its specific remedies - the parties had to use the specific
action linked to that form of contract
3. Because an agreement had to meet the requirements of one of the contract on the list to
be enforceable, it happened sometimes that an agreement was not recognized and had
no legal effect because it didn't fit any form on the list
• The stipulatio was the element of generality in the Roman system of contracts - any
agreement could be made effective if it was cast in the form of a stipulation - we can
consider stipulatio a method of contracting rather than a type of contract!

Discharge of Obligations
• An obligation was usually discharged by the voluntary act of the parties, but there were
also other circumstances (impossibility of performance, extinction of obligation by
death of the party)
• In the early days of Roman Law, the a formally created obligation could only be
formally discharged - thus, formal acknowledgments of performance had to be done
(orally through acceptilatio or in writing through accepti relatio)
• In the classical era, performance by itself was sufficient to discharge an obligation and
acceptilatio simply became a way to discharge the debtor of their obligation despite
non-performance

Privity of Contract
• Privity of contract = a principle according to which a contract should only affect the
parties; 3rd parties should not acquire rights or obligations under that contract
• Roman Law was very strict about the privity of a contract
• A 3rd party could not acquire rights under a contract because all acquisitions through a
person outside the family (extranea persona) were excluded
• The only way to transfer the rights and duties created by a contract to a 3rd party was
by creating a new contract between the 3rd party and of one of the original parties; the
old contract was extinguished (and so were the rights and duties created under it) and
replaced with the new one - this process was called novatio
A. Assignment
• A change in creditors is referred to as assignment under English Law, and does not
require the consent of the debtor - X simply transfers his right against Y to Z; Y must
now pay his debt to Z.
 • This was not possible in Roman Law, but there was a way to work around it through
novatio
• For the change of creditors through novatio, the consent of all the 3 parties involved in
the process was required
• For the change of debtors through novatio, the consent of the original debtor was not
necessary
• Delegatio: A owes B 500 euros and B owes C 500 euros. Through novatio, A can
promise to pay the 500 euros to C, extinguishing A's debt to B and B's debt to C.
B. Agency
• Through agency, a person can enter into contract on behalf of someone else and create
rights and obligations between the principal and that 3rd party
• Roman Law did not fully recognize this concept
• Exceptions:
i. Within the family - the rights (but not the duties) incurred from a contract concluded
by a slave or family members vested in the pater potestas
ii. Outside the family - if X appointed Z as manager of a business, X was liable in fully on
contracts made relating to the business (through actio institoria); the relationship
between the principal and the agent had to be very close for a 3rd party to be able to
sue the principal; the principal could not sue the 3rd party

Lecture 5

Person
• A person is an entity capable of rights and duties
• What are the assets of a person?
1. Property rights
2. Obligations being owed to them
3. Debts owed by them towards another

What is an obligation?
• An obligation = a bond which unites at least 2 persons by which one part is bound (the
debtor) and the other one is entitled (the creditor) to some act or forbearance to which
the debtor is usually also liable in a court of law.

History of Obligations under Roman Law

• Before the concept of obligations, the system was governed by Lex Talionis (retaliation
in kind) - an eye for an eye
• Roman Law gave up on Lex Talionis and proposed that all debts be compensated
through money/objects, rather than violence
• Obligatio was used in respect to various debts:
1. Debts arising from illegal acts - compensated through penalties
2. Debts arising from formal acts - e.g., debts arising from stipulatio
3. Real debts - e.g. lending someone money
• Law of the 12 Tables: the creditor had the right to incarcerate the debtor if the latter
didn't fulfill his debt; the debtor would be set free only if someone else paid the debt
for him; otherwise, he would be sold into slavery - this was a literal interpretation of
the word obligatio (which means bond, chain, rope)
• The Plebeians protested against this tradition --> Lex Poetelia Papiria: the system
changed to the execution of the debtor's property in the event of non-performance of a
debt
Obligations - characteristics
• Under Roman Law, claims cannot be assigned by the creditor to a new one - the only
way to do that was for the first creditor to get the debtor's agreement to extinguish his
debt and then for the debtor to create a new debt with a new creditor (under novatio)
NB: This doesn't mean the claim was transferred! The initial claim was extinguished and
a new one was created!

• Roman Law did not recognize the concept of agency - a 3rd party could never intervene
in a contract between 2 persons
NB: agency = giving an individual the power to conclude contracts on behalf of someone
else (e.g., when you buy something from Jumbo, you conclude a contract of sale - the
cashier is acting as an agent for Jumbo and concludes the contract of sale on its behalf)

• Roman Law did not recognize third-party clauses - alteri stipulate nemo potest (nobody
can stipulate on behalf of someone else)
Situation: A lends B 100 euros with the requirements that B will pay back that money to
C. The problem is that A does not have any action available to enforce against B to force
him to pay C + C also does not have any action available against B.

• Summary:
1. No change of creditors (assignment)
2. No agency
3. No third-party clauses

Subjects of the obligation

• The creditor is the person to whom something is owed - the creditor cannot be changed!
(**without the consent of the debtor)
• The debtor is the person who owes something - the debtor can be changed through
novatio (a new obligation is created between the creditor and the new debtor, while the
one between the creditor and the old debtor is extinguished) – the consent of the debtor
is not required

Object of the obligation

• There are 3 types of performances the debtor can be bound to do:
1. To act (facere)
2. To give (dare) - dare always means transfer of property
3. To warrant (praestare)

Unenforceable obligations
• Not all obligations are enforceable in a court of law - they are referred to as obligatio
naturalis (natural obligations)
• These obligations cannot be enforced in a court because one of the parties is not a person
(= a slave) for example
• There can only be an obligation in fact between a slave and a citizen, not a legal one
• Voluntarily paying the debt under a natural obligation was still considered paying a
debt - the debtor could not reclaim the money
• While natural obligations are not enforceable in a court of law, they are binding in a
moral way
 • Unenforceable obligations are not a gift - this is important from the perspective of law
of succession and of taxes
• Unenforceable obligations can be turned into enforceable ones by:
1. Novatio (not possible in the case of gambling/betting)
2. Providing security (if a debtor gives the creditor an object as pledge, the obligation
remains unenforceable, but the creditor has the choice to execute the pledge if the debtor
refuses to pay voluntarily)

• It was possible to set-off natural obligations - situation: If A owed B 100 euros (under
a civil, enforceable obligation) and B owed A 100 euros (under a natural obligation), it
was possible to just balance the debts through compensation

Lecture 6

Extinction of an obligation by payment/fulfillment (solutio)

1. When?
• The time of payment/fulfillment of a debt can be agreed upon through contractual
clauses

2. Who can fulfill an obligation? There are 2 types of debts in this regard:
i. Personal debts - debts which can only be fulfilled by a specific person - example: you
are hired as a painter; your friend cannot fulfill your obligation as a painter because
they don’t know how to paint
ii. Impersonal debts - debts which are not tied to a specific person and can be fulfilled by
anyone (it doesn't really matter who pays the debt) - example: If I go to the store and I
want to get a beer, but my friend pays for it, the debt is extinguished regardless
• Can I get reimbursed for paying someone else's debt?
• There is the possibility to get the money back by claiming unjust enrichment, depending
on the state of mind of the person making the payment and on other circumstances.

3. To whom should payment be made?

• Roman law adhered to the strict view that an obligation was a strong bond between the
debtor and the creditor
• In certain situations, the creditor could contract adiectus solutionis gratia - the debtor
would be then allowed to pay to the creditor directly, but also to somebody else (a bank,
a creditor of the creditor)
• It is important to understand that the 3rd party involved through adiectus solutionis
gratia does not become a party to the contract between the debtor and the creditor
(meaning the 3rd party cannot enforce the contract)
• If the debtor and the creditor would want the possibility for the 3rd party to be able to
enforce the contract, they would use adstipulatio
Example of adiectus: A owes B 100 euro; they decide that A can pay to B or C -> C is
then not a party and has no actio available, he can only accept the payment from A.
Example of adstipulatio: A owes B 100 euro; A promises to pay that money to C under
a second contract (between A and C) -> C becomes a creditor and has an actio available

Extinction of an obligation by non-fulfillment

1. What happens if fulfillment is impossible?
• Example: A builds a house for B but the house burns down.
 • Whether the debtor is liable under the contract or not depends on the standard of care
(diligentia)
• If the debtor met the standard of care, he is not liable and the obligation is terminated
• In determining the standard of care, it’s important to assess who gets the most benefits
from the contract from an economic view
Example 1: A loans B a book. The book gets stolen while B talks to C.
Obviously, B had the most benefits from this contract (he got the book for free) and he
has to exercise a very high level of care - in this situation, he is liable
Example 2: A goes to a club leaves his coat at B's cloakroom for free. The coat is stolen.
Obviously, A had the most benefits from this contract (he got a place for his coat for
free); B incurred an obligation for no money in return - B did not have a very high duty
of care and he is not liable.
• In situations when an unforeseeable event makes the fulfillment of the obligation
impossible, the debtor claims vis maior (= act of god, superior force) and his obligations
are discharged
• BUT: if the debtor misses the deadline of the fulfillment and then the unforeseeable
event happens, he is still liable - mora perpetuat obligationem

2. What happens if fulfillment is possible, but the debtor doesn't fulfill?

• Example: A has to build a house for B, but he just sits around all day, doing nothing.
• The creditor first has to give the debtor a notice (interpellatio) asking for performance
of the obligation and setting a deadline; if the debtor still refuses to act, he is liable
under mora perpetuat obligationem
• This is not necessary if a deadline has been set in the original contract - in this situation,
the debtor is liable from the moment that deadline passes under mora perpetuat
obligationem
• If the debtor improperly fulfills the obligation, the creditor is entitled to claim damages
- dies interpellat pro hominem

Extinction of an obligation by novatio

• Novatio = the renewal of an obligation; the old obligation is extinguished and replaced
by a new obligation
• Novatia necessaria: the replacement of an obligation at the order of a judge
• Contractual (active) novatio was used to transfer claims from a creditor to another, since
assignment was not allowed under Roman Law (A's debt to B was extinguished and a
new debt to C was created) - all 3 parties had to be present and agree
• The difference between assignment of claims and novatio also relates to security rights:
• Under modern law, security rights attached to a debt continue existing and are
transferred under assignment
• in Roman Law, the security right attached to a debt was extinguished under novatio and
a new security right had to be created as well, otherwise the new debt was not secured.

• Passive novatio (expromissio) was used to change the debtor (A's debt to B will be paid
by C) - A's agreement is not necessary; the creditor simply creates a new contract with
the new debtor and releases the old debtor from his obligation.
• Novatio can also be used to change the nature of a claim (since some claims were
extinguished with the death of the debtor, novatio could be used to change the claim to
one that was not).
Extinction of an obligation by limitation
• If the creditor doesn't claim the debt for a certain amount of time (30 years), the
obligation is extinguished
• It's not yet clear how this form of extinction worked - 2 options possible:
1. Procedurally (ope exceptionis) - was it an exception that the debtor could invoke in
court?
2. Material (ipso iure) - did the creditor automatically lose their claim after 30 years and
the judge would acquit the debtor without the need for him to invoke an exceptio?

Extinction of an obligation by compensatio

• If there were 2 identical debts between 2 identical persons (A->B and B->A), the 2
debts are compensated (they cancel each other out basically)
Example: A owes B 500 euros from a contract and B owes A 500 euros from another
contract.
• The debts need to be identical (not in value, but in kind - you can't compensate a 500
euros debt with an object)

Extinction of an obligation by alternative form of payment (in solutum datio)

• A has to paint B's house - A and B agree that instead of that A will just give B a horse.
• Debate: Is the obligation extinguished by this alternative form of payment? What
happens if the alternative payment proves unsatisfactory? (e.g., the horse dies?)
A. The old obligation is extinguished and a new one is created when the alternative form
of payment is delivered - the creditor has an actio available resulting from the new
contract - this view is supoprted by Gaius and Sabinians (material view)
B. The old obligation is not extinguished, but the creditor was barred from bringing an
action against the debtor, prohibition which was lifted when the alternative payment
proved unsatisfactory? - this view was supported by Proculians (formal view)
• Justinian adopted the material view - "Every obligation is dissolved by the payment of
what is due; or where a party gives one thing instead of another with the creditor's
consent."

Confusio in the Law of Obligations

• Confusio (meaning in the law of obligations) = when the same person ends up being
both creditor and debtor
• Example: A owes B 100 euro. A dies and leaves his entire estate to B. -> B would be
the creditor, but also the debtor (as he inherited the debt from A) to the same claim.

Literature – working group

Original natural modes of acquisition of ownership

• Occupatio - acquiring ownership over a thing which has no owner by taking possession
of it
• Increment by rivers:
i. Alluvio - if pieces of land carried down by the river become attached to a bigger piece
of land, the owner acquires ownership over the extended land
ii. Insula nata - if a river creates an island, the owner of that island is the owner of the
bank closest to the island
iii. Alveus derelictus - if a river changes course, the owner of the land next to the old bed
of the river becomes owner of it
 • Accessio - if things belonging to 2 different people are merged (without the consensus
to do so) and the identity of one thing (considered the accessory) is lost in the identity
of the other (the principal), the owner of the principal becomes the owner of the merged
thing
• Example: A owns a bike (the principal object) and uses B's saddle (the accessory) to fix
it.
• Accessio also applies to immovable things - if A builds a house on his land using B's
materials, the building accedes to the land (inaedificatio) and belongs to A
• If the owner of the principal thing acted in bad faith, he is liable for compensation and
penalty
• If the owner of the accessory has possession of the merged thing, the owner of the
principal can bring a vindicatio to get it, but must pay compensation for the accessory
• If the owner of the principal acted in good faith and the owner of the accessory is not in
possession, the latter has no remedy available

• Confusio - if things belonging to 2 different people are merged (without the consensus
to do so) and the identity of the whole merged thing is the same as the identity of both
of the component things, the ownership is joint
• Example: A owns 2 liters of wine and B owns 4 liters of wine - they are mixed together
in the same bottle.

• Specificatio - two things are merged to create an object that is different from its
components (and therefore a completely new object)
• Example: A uses his flour and B's eggs to make a cake.
• If this was done by agreement, the agreement will decide who gets ownership.
• What happened if there wasn't consent from one of the parties?
i. The Sabinians: give ownership to the ownership to the owner of the materials OR joint-
ownership if there are multiple owners of materials
ii. The Proculians: give ownership to the maker
iii. Justinian: give ownership to the maker only if the materials could not be returned to
their original state OR if the maker himself supplied at least one of the materials
• Good or bad faith is irrelevant in this case

•
Acquisition of fruits
1. Civil fruits = rents, profits from an object - the right to civil fruits is established in the
contract
2. Natural fruits = gain from land or from animals - generally, the owner of the parent
thing is also the owner of the natural fruit
• If the parent thing (e.g. land) is leased to a tenant, the tenant becomes the owner of the
fruits with the consent of the owner of the land (him gathering the fruits is considered
traditio brevi manu)
• If the parent thing (e.g. land) is subjected to a limited real right of someone else, who
gather the fruits, that person has ownership of the fruits
• A bona fide possessor of the land is also a bona fide possessor of the fruits, but is obliged
to give them to the owner if the owner asserts his title

• Treasure
• If a person finds a treasure on their own land, they become the owner of it; if they find
it by chance on the land of another, they each get half of it
Working Group
Question 1
Proculus may consider that unilateral abandonment does not result in direct loss of ownership
because at that time in Roman Law it was considered that ownership can only be transferred,
not given up on – but the unilateral abandonment of an object could not qualify as a transfer of
ownership, so the person remained the owner of the object until someone else acquired it (point
at which a delivery can be said to have been made).

Question 2
Romans had multiple methods of conveying ownership, based on the different categories of
objects that they established. Mancipatio was the formal way of conveyance of a res mancipi
(lands, slaves, animals). It was a ceremony involving the transferor and the transferee, in the
presence of 5 Roman citizens (witnesses) and of a man holding a scale. The transferee held the
object in question, announced himself the owner of it, then struck the scales with a piece of
copper, which he then handed to the transferor. Because the transferor did not contradict the
transferee, it was considered that ownership had passed.
Unilateral abandonment (dereliction) did not result in an automatic loss of ownership of a res
mancipi, because then anyone finding the object could acquire ownership of it by picking it up,
which was contradictory to the principle that ownership of a res mancipi could only be obtained
through mancipatio.

In an exam question, always check if the object is a res mancipi or a res nec mancipi! The
category of object dictates which type of conveyance is used: mancipatio for res mancipi,
tradition for res nec mancipi.

D. 42,8,4&5. (Paul and Gaius) A debtor is understood to intend to defraud his creditors who
does not do what he ought to do, for instance, if he does not make use of servitudes to which
he is entitled. Or if he should abandon some of his own property, in order that anyone may
obtain it.

In the case of a fraudulent transfer of ownership creditors of the transferee could invoke the
invalidity of the transfer. This text makes clear that this remedy was also available when the
debtor abandoned property in order that someone else might obtain it.

Question 3
Unilateral abandonment implies that one does not know who is going to pick up the object
and become the new owner. In this case, there is a clear agreement between Aulus and
Crassus that Crassus is to take the statue from the forest, which makes this a transfer of
ownership, rather than an unilateral abandonment.

Question 4

A wild animal in the forest is by itself a res nullius – the first person to acquire possession of
it will acquire ownership by occupatio. The fact that Venerator was illegally hunting on
Vicinus’ land has no implication for property law.
Question 5

a. The landlord will own them – as long as they are attached to the building, the windows
become an integral part of it (the house being the principal object) and the owner of the
principal object acquires ownership over the accessory (the windows) through accessio.

b. In accordance with Iulian, when the accessory is removed from the principal object,
ownership reverts to the original owner of the accessory. In this case, the lessee acquires
ownership again over the windows once they are removed from the house.

c. No – the contract can only yield personal rights and cannot influence proprietor status.
Contracts cannot override the modes of acquisition of ownership.

Question 6.
The 2 natural modes of acquisition of ownership referred to in the text are:
1. Accessio – is the granary part of Seius’ land and thus under his ownership?
2. Specificatio – the granary has been constructed from wooden boards and thus a new object
was created – the question arises: what happens if you use someone else’s wooden boards to
construct a granary; who has ownership?

Question 7.
The Dutch Supreme Court and Scaevola disagree – Scaevola based his argument on the fact
that the granary is movable, but the Dutch Supreme Court would argue that the granary is
destined to remain in its place permanently. Thus, Scaevola would say that the granary belongs
to Titius, while the Dutch Supreme Court would say that the granary belongs to Seius.

Question 8.
a. resembles accession and occupation
Accesio – resembles accessio because the treasure is found in the land of a person and the
landowner acquires a proprietor right in the treasure
Occupatio – resembles occupatio because the finder of the treasure acquires a proprietor
reward

b. different from the two modes of acquiring ownership?

The situation is different since a treasure is not res nullius – its initial owner did not hide it
to renegade ownership, but to protect the object. Upon death of the initial owner, the
ownership transferred to the living heirs and so on – at this moment in time, all the living
family members are co-owners. The problem is that it’s impossible to track them down. So,
it’s more practical to just split the treasure between the finder and the owner of the land.
Finding a treasure is not exactly like occupatio since the treasure is not res nullius.
Finding a treasure is not exactly like accessio because from a commonsense point, the
treasure is not an accessory to the land.

When a treasure is found on the land of another, half of it belongs to the finder and half to
the owner of the land.

Question 9
The rules of commixtio do not apply to money as it is a common thing that changes hands very
fast and thus a specific coin is very difficult to track. This measure was also taken to protect
the economy.
Question 10
Money follows the natural mode of acquiring ownership known as accessio – it can be argued
that the moment a coin is put in the bag of a person, it becomes an accessory to the bag and the
ownership of the bag spreads over the coin.
Specificatio

Question 11
Factor cannot claim the statue from Maecenas. His ownership over the marble ended when
Lysias used it to create the statue, because the marble cannot be brought to its original state.
Lysias made a new object, over which he naturally acquired ownership through specificatio
and thus he was entitled to later sell it to Maecenas.

If A uses B’s materials to create a new thing, A acquires ownership over the thing only if the
object cannot be returned to the original state of the materials (e.g., A makes a bronze statue –
by melting it, the bronze can go back to its original form, so B is the owner of the statue)
If the object cannot be returned to the original state of the materials, A becomes the owner of
it – e.g. A makes a marble statue; marble cannot be brought back to its original state as a block
of marble after it has been sculpted, so A is the owner of the statue.
Week 4
Literature for lectures
Real contracts according to Justinian
1. A real contract is one in which an obligation doesn't arise from agreement alone, but
from the delivery of an object (the agreement is still required!)
2. According to Justinian, there are 4 types of real contracts:
3. Mutuum
• A loan for consumption, not just for use - e.g., giving someone food or drinks
• The borrower did not have to return the thing itself, but its equivalent in quantity and
quality
• Unilateral action, actionable by condictio
• No claim for interest could arise under the mutuum itself - an agreement for interest had
to be made separately

4. Commodatum
• A loan for use only
• The borrower received only detention (no ownership, no possession)
• Gratuitous contract - the borrower did not have to pay for the loan

5. Depositum
• Handing over of an object for safe keeping, not for use
• The borrower received only detention (no ownership, no possession)
• Gratuitous contract - the depositor did not have to pay for the deposit

6. Pignus
• Real security given by the transfer of possession

Real contracts according to Gaius

7. Gaius considered that only mutuum was a real contract
8. He also considered that an obligation arose re when A paid B a sum of money thinking
that they owed it to B, when in fact that was not the case (Justinian classified this as a
quasi-contractual obligation)

Relative unimportance of the real contracts

9. The contracts mentioned above are rather unimportant from a commercial point of view
10. Their existence is only relevant if a 3rd person takes possession of the object, as to
determine which party has the legal power to sue

Standards of care
11. Mutuum
12. The borrower had to return the equivalent of the object received
13. The borrower became the owner of the original thing, so any damage incurred by the
object only concerned him
 14. The 3 other real contracts
• Since the 3 other real contracts did not involve a transfer of ownership, a standard of
care had to be established in order to decide whether the recipient was liable for any loss
or damage to the object
• Roman Law distinguished between 3 degrees of liability:
15. Dolus (fraud, bad faith)
16. Culpa (fault, negligence)
i. Culpa levis (slight fault)
- Culpa levis in abstracto - original culpa; a failure to show the diligence
of a reasonable man; it was judged by an objective standard
- Culpa levis in concreto - failure to show the care which the particular
individual generally shows in his own affairs; it was judged by a
subjective standard
ii. Culpa lata (gross fault) - very gross carelessness, bordering bad faith
17. Custodia - very concretely defined - there is a list of ways in which the object could be
lost for which the recipient would always be liable, and a list of ways for which the
recipient would never be liable; it's basically strict liability for all losses except those
caused by superior force & acts of God

• Whatever standard of care applied, mora (delay - a party through his own fault failing
to fulfill his duty by the deadline) would automatically be liable
• It is not exactly clear which standard was applied to which contract - most texts suggest
that:
- Depositum < - > Culpa lata
- Commodatum, pignus < - > Culpa levis in abstracto

Consensual contracts
• Consensual contracts are created by mere agreement (nudo consensu) without the need
for physical action from the parties; these types of contracts are bound by the good faith
requirement (bona fides)
• There are 4 types of consensual contracts:
1. Emptio venditio (sale)
2. Locatio conductio (hire)
3. Societas (partnership)
4. Mandatum (mandate)
5.
Consensual contract of sale (emptio venditio)
• Essential elements: agreement on a thing and on a price
• The thing
• Typical object was a res corporalis, but it might have also been an incorporeal thing
(like a servitude)
• The typical sale is an agreement to transfer ownership of a thing (thus, if the goldsmith
uses his own materials to make me a ring, it's a contract of sale; if the goldsmith uses
my materials for the ring it's a contract of hire)
• The thing must be identified (either specific - "that book" or semi-specific - "one of my
books") - there can never be a sale through emptio venditio of a generic thing ("a book)
• The thing must exist at the time of the agreement (in the sense that they were not
destroyed or ceased to exist) - a sale of some "future things" was possible
Example: A merchant could buy from a farmer next year's crop from a specified field
• For this reason, there were 2 types of sales:
 • emptio rei speratae (the sale of an expected thing) - the price will depend on how much
grain there will be next year (set a price for every m3 of grain)
• emptio spei (the sale of an expectation) - the price is set from the start and the buyer
takes the risk of losing it all or getting a lot of grain for a small price (set a price for
every acre)
• The price
• There must always be money involved - barter does not qualify as a sale
• The price must be fixed and known at the moment of the sale - no sale for a price that is
to be fixed later or by a court
• The parties were free to set their price, with the exception that the sale must be seriously
intended, and it must not mask a gift (thus, you can't sell a car for 1 euro)
• Consent
• Consent = concurrence of 2 intents
• The intents of the parties must be known and the extent to which they concur must be
determined
• There are 2 defects of consent which can corrupt a contract:
• There is no consent regarding the entire transaction or a part of it - arises from error
• There is consent, but it was obtained illegitimately - arises from fraud, bad faith or duress
(metus)
• Bad faith applies not only if one party actively deceived the other, but also if one party
was aware that the other misunderstood but did not try to correct them
• Error can arise in the following situations:
• Both parties make the same mistake - e.g., both parties believe that the book is in German
when it's in Dutch
• One party has one intent and the other another - e.g., A wants to buy horse X and B
wants to sell horse Z - in this case, it would be bad faith for B to let A think he bought
horse X

• Not all mistakes can prevent the formation of a contract:

• Error in negotio - there is no consensus on the type of contract (A believes he is entering
into a contract of sale; B believes it's a contract of hire) --> no contract
• Error in pretio - there is no consensus on the price - the contract is partially operative
and can be enforced if one party is open to act in accordance with the other's belief
• Error in quantitate - there is no consensus on the quantity - the contract is partially
operative and can be enforced if one party is open to act in accordance with the other's
belief
• Error in persona - one party is mistaken as to the identity of the other
• Error in corpore - mistake as to the identity of the object sold (the horses case mentioned
above)
• Error in nomine - the parties are actually in agreement on a particular object, but they
use different words to refer to it
• Error in substantia - the parties agree on the physical identity of the object, but they are
mistaken as to an essential characteristic of it - e.g. A buys a Rembrandt copy from B
thinking it was an original. The contract is only void if A can prove that B was aware
that the quality of the painting was essential to A.

Effects of the contract of sale

• The passing of title
Ø The passing of title was an effect of the conveyance of the thing, not of the conclusion of
contract
Ø In the law of Justinian, it was necessary that delivery be made and that the price be paid (or
security be given for payment)

• The passing of risk

Ø The risk of accidental loss or damages passes to the buyer as soon as the contract is
concluded, even if no delivery had been made
Ø If the seller acts in due care in the period between the contract and the delivery, he can
claim the price from the buyer, no matter what happens to the object itself
Ø The buyer has no claim against the seller if the object is destroyed or lost and the seller is
not at fault

Duties of the seller

• Care and delivery
• The seller was bound to deliver the thing and to take reasonable care of it until then
• Warranty against eviction
Ø The sale itself is not corrupted by the fact that the seller is not the owner; he is only required
to refrain from bad faith and to maintain the buyer in undisturbed possession (until he
becomes owner by prescription)

•Warranty against latent defects

Ø Under good faith, the seller is liable for any defects of which he was aware of but did not
mention to the buyer
Ø In the case of res mancipi, under the Aedilician Edict, there was strict liability for defects
not declared - if a defect appeared which was not declared, the buyer could claim recission
of the sale within 6 months by actio redhibitioria and the difference between price and
value within 12 months by actio quanti minoris
Ø Justinian took the strict liability established under the Aedilician Edict and applied it to all
sales

Duties of the buyer

• The buyer was bound to pay the price and to compensate the seller for any expenses
incurred while looking after the object between the conclusion of contract and the
delivery

Lecture 7

Contracts - History
• Nowadays, a contract is an agreement enforceable in a court of law which creates a
relationship between the parties
• But in Roman Law:
Ø Principle of enforceable agreement was accepted, but not all agreements were enforceable
in a court of law
Ø Consensus was considered to be enforceable only in some instances (only four forms were)

• Concept of 'debt':
Ø Had various sources, could come from non-contractual sources (delicts), agreements etc.
Ø There were 2 ways to create debt:
 1. Debt arising from a formal act, which had the purpose to create the debt; the form to be
used was stipulatio - agreement was neither necessary (e.g., it didn’t matter if the debtor
was acting under duress or was defrauded, if the form was used then the debt was
created!) nor sufficient (e.g., the parties used the wrong words in the form and thus no
debt was created!)
2. Debt creating by conveyance: if someone transferred title over some objects to another
person and the deal was for the beneficiary to re-transfer the title to the initial person
(e.g., in the situation of lending money), at the moment of the physical transfer the debt
was created
Ø There were 2 types of debt:
1. Promissory debt: changing status quo
2. Real debt: restoring status quo

Ø Promissory debt was essential in commerce; there were no problems for transactions
involving cash
Ø But if the contract of sale was concluded on the basis of credit, a stipulatio was necessary
and sufficient
Ø Stipulatio could not be used for services though
Ø In the earlier days, stipulatio could not be used to transfer title, but then stipulatio poenae
was invented (the seller promised to give money to the buyer if the latter didn't become
owner of the object)
Ø Later in the day, formless agreements were accepted (emptio-venditio, locatio-conductio)
- these were created by the Praetor Peregrinus, as foreigners could not use the forms
established under Roman Civil Law
Ø In the end, stipulatio became the form for any kind of promises
Ø Executory contracts were already established in the 1st century BC

Bilateral contracts
• There are 2 obligations in a bilateral contract: for the seller to deliver the object and for the
buyer to pay
• One could use 2 unilateral contracts to do this, but the problem is that non-performance of
one of them could not lead to the non-performance of the other (e.g., if the buyer did not
pay, he could still force the seller to give him the object, as he is obliged to under that
unilateral agreement)
• Only later was the situation described above solved through exceptio doli (exception of bad
faith) (around 66 BC)
• Bona fides was always in action for bilateral contracts, but you had to plead for exceptio
doli
• The origin of bona fides was the edict of the praetor peregrinus, but later on it became part
of ius civile
• Bona fides could only be used in bilateral contracts to strike a balance between obligations
(there can be no balance in unilateral obligations obviously)

Contract
• The penal stipulation for enforcing contracts was found under the penalty-clause: the clause
agreed upon an amount of money to be paid if the debtor did not meet his obligation in due
time (you could thus force the debtor to meet the obligation by setting a very high penalty)
• Nemo alteri stipulari potest: you cannot make a stipulation in favor of a 3rd party, but you
can make a stipulation forcing someone to pay you a certain amount of money if they did
not hold up their obligation towards a 3rd party
Law of Contracts
• Under Roman law there is no unitary law of contract
• Only the contracts provided with an action in the Edict were enforceable in a court of law
(pacta nuda non valent) - agreements which are not made in the right way are not
enforceable
• There are 4 groups of contracts which are recognized and enforceable in a court of law: (in
the 1st century BC)
1. Contractus re: real contracts (similar to real debts created by conveyance)
2. Contractus verbis: contracts by speaking (like stipulatio)
3. Contractus litteris: contracts by writing
4. Contractus consensu: consensual contracts

• There was now a distinction between informal and formal contract: informal contracts are
concluded just by consensus, formal are all the other ones
• A new form of contract came to be accepted: innominate contracts (contracts that did not
get their own specific action, but there was only 1 action for innominate contracts)
• Classification of contracts is very important!

Lecture 8
• Some contracts in Roman Law where of the consensual type, but there other that were not
based on consensus, but on specific rituals

Consensual contracts
1. Emptio venditio
2. Locatio conductio
3. Societas
4. Mandatum (= giving someone a mandate to do smth - e.g., "can you take my suit to the
seamstress?")

• All these contracts are concluded bona fide - creates the obligation for both parties to act
in good faith (bona fide is an objective standard of behavior!)
• The bona fide requirement only applies to bilateral contracts
• Since there was no specific ritual to be followed, it was also possible to conclude contracts
without the physical presence of both parties at the same place (e.g., through letters)

Determining the nature of the contract

If A orders B to build a house for him (A) is it:
i. Locatio conductio (hire of services)?
Or
ii. Sale?
Determining factor: who supplied the materials? - since for a contract of sale one needs to
acquire ownership from someone else through a transfer, while for a hire of services contract
one already has the materials already and just gets a handyman to use them to build the house

Duties for the buyer

• Pay the price (in Roman Law, sales NECESSARILY involved cash)
• Alternative forms of payment such as in natura did not result in a contract of sale, but in a
barter (permutatio); a barter has its own specific actions
• There has to a price (pretium):
Ø The price has to be determinable (certum) - the parties have to agree on a mechanism to
determine the exact price
Ø The price has to be real (verum) - the price cannot be trivial (e.g., you can't sell a house for
1 euro)
Ø The price has to be fair (iustum) - according to the Price Edict by Diocletian, when the sale
price was lower than half the actual worth of the object, the seller (ONLY the seller) could
annul the contract (and ask for restitutio in integrum) or he could ask for the amount of
money missing to meet the worth of the object - it was for the buyer to choose between the
2 options (obligatio facultativa)

Duties for the seller

• A mere sale in Roman Law does not automatically make the buyer the owner of the object;
there needs to be a VISIBLE delivery (traditio) for ownership to pass
• The seller has the obligation to make a delivery of the peaceful possession (vacua
possessio) and provide a warranty against evictio
• What is evictio?
Ø A sells and delivers C's ring to B'. C brings a rei vindicatio action! B obviously loses the
ring to C and now can bring an action against A as they did not provide a warranty against
evictio!
Ø The person that sold a thing that did not belong to them has to pay a fine that amounted to
twice the value of the thing (this was the general rule)

Warranty against latent defects (aedilician liability)

• The market master (aedilis curulis) developed a new law regarding defects present at the
time of the sale - there were 2 options for someone who had bought a defective object
(applicable to animals and slaves):
i. Actio quanti minoris: ask for a cut in price and get a partial refund (ask within 12
months)
ii. Actio redhibitoria: give the object back and get your complete refund (ask within 6
months)
• This rule was later generalised by Justinian:
Ø Strict liability (knowledge of the seller was irrelevant) (*if the seller knew that the object
was defective, he would be acting in bad faith and the buyer could simply argue that, so
there was no need to further complicate with strict liability)
Ø General warranty for everything that was expressly promised and for mala fide behaviour

Origins of the sale

• The origins of the sale as a primitive cash sale are still visible in the rules developed in the
later Roman days through:
1. No sale for generic/future goods (hanc rem meam esse) - for generic goods, some act
of determination was necessary (like marking them);
• for future goods, the Romans drew a distinction between:
i. emptio rei speratae (you buy an expected thing and if there ends up being nothing there
is no contract)
ii. emptio spei (you buy a chance but if there is no harvest, you still have to pay) - there is
a fixed price
2. Custodia liability for the seller
Ø The liability for the seller was very strict, especially when the transfer of ownership has
occurred, but the seller keeps the object in his possession for a while longer
 3. Res perit emptori
Ø Periculum est emptoris (the risk is for the buyer) - if the parties agreed on a price but then
something happened to the object that the seller could not have prevented (and is thus
outside the seller's liability) then that is the buyer's problem, and he still has to pay the price
(even though delivery had not been made already)
Ø This rule was later upgraded to include advantages - if something good happens to an object
for which a price has been agreed on but that has not been delivered, it becomes the buyer's
advantage (e.g., if you buy land and then a treasure is found there, it's your treasure now!
even though the land has not been delivered yet)

Literature – Working Group

Possession
• Always remember that possession and ownership are not the exact same thing!
• How was possession protected through law?
Ø The possessor had remedies by which he could restrain others from interfering with his
possession and by which he could recover possession if ever dispossessed
Ø E.g., If B evicted A from the land A occupied, A could bring an action against B (as long
as A's possession of the land was not obtained by force (vi), secretly (clam) or by grant at
will (precario) from B - A can only use this remedy against B + A can enforce this
remedy even if B is the actual owner (B would then get the land back through vindicatio)
• Why was possession important?
Ø Possession was easy to claim, as it had a factual character - ownership required more
evidence that may be difficult to obtain and thus was harder to prove
Ø Possession was the root of the 2 most common methods of acquiring ownership (traditio,
usucapio)

• What qualifies as possession?

1. Who is capable of having possession?
Ø It is easier to say who CANNOT have possession:
i. no one who holds a property according to a contract with the owner can possess (e.g.,
a borrower, a depositee, a hirer cannot have possession, as they only hold property on
behalf of the owner who has possession through them)
ii. no one who holds a property due to a right in rem other than ownership can possess
(e.g., someone who has the right of usufruct over a property cannot possess it)
NOTA BENE: a right in rem other than ownership is modernly referred to as iura in re aliena
and could not be conveyed by traditio nor acquired by usucapio, given that the person who
had such a right did not have possession

Ø Romans understood possession not exactly as the act of holding something, but more like
holding a thing in the manner of an owner (exclusive holding)
Ø As long as someone who holds a property in good faith acknowledges that they do not
own it, they cannot have possession
Ø Someone who is aware that they do not own a property but acts in bad faith and seeks to
hold it as much as possible acquires possession (e.g. a thief)
Ø A holding that did not amount in law to possession was referred to by detention
 2. What amount of physical control is necessary for possession?
Ø The acquisition of possession requires both intent to exercise control (animus) and the
effective power of control (corpus)
Ø The effective power of control depends on the nature of the object - there's more control
needed to possess a book than a house
Ø Possession cannot be acquired by an act of intention alone
Ø Retaining possession has less strict conditions - you could even retain possession through
intention alone (e.g., you had a vacation house - you don't leave in it, but you have the
intention to retain its possession)

Working Group

Question 1

The act of possession requires both animus and corpus - but while factual control is necessary
to obtain possession, it is not necessary for it to be continuous, as long as the possessor can at
any moment regain factual control over it and still considers themselves the possessor. As
highlighted by Paulus, a person is still the possessor of something that is momentarily lost if
that thing can be found.

There are 2 requirements for possession: animus and corpus. Corpus is always necessary to
acquire possession, but there is no need to exercise factual possession continuously to continue
having possession over an object.

Question 2
Possession was not retained as the owner could not retrieve them easily – his mere intention
was not sufficient, as he could not by any means and by himself regain factual control over
them, as mentioned by Paulus.

Possession and ownership are legally 2 different things – one can lose possession, but not
ownership!

Question 3
Romans understood possession not necessarily, or strictly, as the physical control over an
object, but as an intended exclusive holding over an object – in the circumstances that 2 people
would possess the same object, but they are not co-owners, that would mean that one of them
is aware that they do not own the object, despite holding it, which makes possession in the legal
sense impossible. Moreover, you can’t have 2 persons exerting factual control over the same
object at the same time.

C41,2,18pr (Celsus) What I possess in my own name I can possess in that of another. For I do
not change the title to my possession when I hold it through another, but I cease to possess
(=hold) the property, and I render him possessor (= holder) by my own act. It is not the same
thing to possess personally and to possess in the name of another; for he possesses (=holds) in
whose name possession is held. A representative lends his agency to the possession of another.

There is a difference between possesio civile (the legal meaning of possession) and possesio
naturale (which is only holding something – factual). The text from Celsus relates to this. E.g.,
if you rent something, you exert factual control over it but the animus is to exert factual control
for the landlord, meaning that the landlord is still in possession legally.
Question 4
This type of delivery is called constitutum possessorium (it implies that ownership is passed,
but the former owner holds the object on behalf of the new owner).
This type of delivery is not contrary to the rule that no one can himself change his title to
possession,

Question 5.

If I hold something on behalf of another, I cannot change my animus (from that of holding
something for someone else to that of holding something for ME) and start possessing the
object for myself!

Question 6.

This type of delivery also falls under constitutum possessorium – there is no requirement for
the seller to be in physical holding of the object, he can deliver something to the buyer through
a 3rd party who is holding that object. In this case, Garus would transfer ownership and
possession to Tertius and Faber would stop holding the chariot on behalf of Garus, but on
behalf of Tertius.

Question 7.

Traditio brevi manu (a person is the detentor already and wants to acquire ownership – so the
owner transfers ownership without the detentor needing to give the object back only to regain
it now as an owner).

Question 8

Lentulus – the constructive delivery from Janus to Hero is not successful as Janus never had
any possession over the boat (nemo plus rule) and thus cannot transfer it through constitutum
possesorium. If there had been a factual delivery between Janus and Hero, Hero would have
acquired possession! You can’t lose possession over something that is held by somebody else
until that something happens to explicitly state that the person is no longer willing to have
detention over the object but become the possessor.

Question 9
Possession is a factual thing and not a right! As it requires both corpus and animus, it is
necessary for the heir to go claim their inheritance in order to acquire possession. (Facts cannot
be transferred through wills obviously)

Question 10.
For a transfer of ownership, you need delivery (in this case traditio) – if you acquired
possession through occupatio you did not acquire ownership! In this case, even if the delivery
was not mentioned in the contract, it still happens because the seller knew that the buyer went
and took the object with the knowledge and consent of the seller! Occupatio would imply that
the seller does not know and does not consent to the buyer taking the object.
Delivery can happen with only one person when the buyer facilitates and consents to it.
Week 5
Literature – lectures

Locatio conductio - hire contracts

• This was a very wide category of contracts! Scholars have distinguished between 3 types:
i. Locatio conductio rei - one party allows another party to use one of his objects
(movable or not) - e.g. A rents his apartment to B for 2 weeks.
ii. Locatio conductio operarum - one party offers his services to the other - e.g. A hires B
to babysit his child.
iii. Locatio conductio operis - one party has an object on which the other party must work
on - e.g. A hires B to repair his house.
NOTA BENE: locatio conductio operarum and locatio conductio operis are both contracts for
the performance of work, but the difference between them depends on the amount of control
exercised by the person paying for the service! If the person conducting the work has the
freedom to make decisions throughout the process, it's a locatio conductio operis contract. If
the person conducting the work is under constant supervision, it’s locatio conductio
operarum.
è locatio conductio operis = hiring an independent contractor; locatio conductio
operarum = hiring a servant

• These distinctions were not used by the romans in their texts!

• The rules on the formation of sale contract also applied to contracts of hire (thing, price
and consent)
• In locatio conductio rei, the person renting only had DETENTION of the thing - meaning
he only had a personal right against the other party and no remedy against 3rd parties
interfering with the object in question

Formal contracts

Stipulatio - the contract verbis

• Stipulatio was the most used form to create a contract: it was a spoken promise between 2
parties
• Stipulatio had few requirements: the parties need to be in the same place and the promise
had to be made in a question and answer form!
• It was important that the parties used the same terms in their question and answer (e.g. If
A asks "Do you promise to give me your laptop?" and B replies "I swear" there is no
stipulatio!)
• There were no witness requirements, but it was advisable to have evidence of the
stipulatio (e.g. through documents or witnesses)
• Any agreement could be made legally enforceable through stipulatio; there were no
requirements on the content
• Emperor Leo in 472 AD removed the need for "formality of words", thus stipulatio only
needed to take the form of a question and an answer and the parties could use differing
terms

NOTA BENE: In time, stipulatio as a form changed and was used to also include written
agreements which had a clause stating that the oral agreement has also happened
Written contracts
i. The Classical Contract: very old type of written contract which could only renew or
transform an existing obligation by converting it into a money debt or transferring the
debt from one debtor to another
ii. The New Written Contract under Justinian: This type of contract was a written
acknowledgment of a wholly or partially non-existent debt (e.g., when the 2 parties
already made a loaning contract and then the creditor realized he doesn’t have the
money, they create this document stating that there was no actual loan and thus there
is no debt)

Lecture 9

Pacta
• Pactum = originally "compromise", it meant agreement not to sue
• According to ius civile, pactum extinguished ONLY obligations ex delicto (obligation ex
delicto = cases in which damage was inflicted upon someone/someone's object; these
cases include a penal aspect)
• Since pactum could only be used against obligations ex delicto, it could not extinguish a
contractual obligation (well one could still make a pactum but it did not create any legal
changes in a court of law)
• The praetor accepted the use of pactum in contractual action, so the praetor introduced
the exceptio pacti against any action (if the party could prove that a pactum had been
concluded, the judge would consider the exception valid and acquit him)
• Thus, pactum came to be accepted within law, but it was considered that such agreements
could only give rise to exceptions, not to obligations (nudum pactum obligationem non
parit, sed parit exceptionem)
• Pacta also referred to contractual clauses and sometimes they could be enforceable in a
court, but only in the case of bilateral contracts covered by good faith (pacta in continenti
facta)
• But if these clauses were made after the contract was concluded (pacta ex intervallo), they
could only be used for defense
• Some types of pacta could give rise to actions (they were known as pacta vestita =
informal agreements that were awarded legal enforceability):
1. Pacta legitima - pactum was made enforceable by the Emperor through an imperial
constitution
2. Pacta praetoria - pactum was made enforceable the praetor through the Edict or through
an actio in factum
NOTA BENE: actio in factum = action that was not part of the edict but that was awarded by
the praetor because the facts were so unique that no other action could fit the situation which
still needed redress

Contractus verbis - Stipulatio

Stipulatio (specific words needed to be spoken + consensus)
• Took the form of question and answer
• Stipulatio could be used for any anything, there were no rules on what could be promised
• Actions against breaking stipulatio: condictio (for money and specific objects) + actio ex
stipulatu (for services)
• Advantages: it's easy to pinpoint the moment the contract has been concluded and has
become enforceable; it was easy to make all the clauses and subsidiary terms of the contract
explicit (you just mentioned them all and then asked: "do you promise?")
• Disadvantages: since the contract had to be concluded verbally, the parties needed to be in
the same place at the same time; there was no legal requirement for witnesses (but
obviously you needed to prove that the promise took place, so the parties had to choose a
form of evidence [witnesses, documents])

• If there was already a document as evidence for the stipulatio, why not give up on the oral
requirement and just switch to written contracts? That is what eventually happened - in
principle Roman Law never accepted written contracts, but in practice people just used
these documents and gave up on performing the traditional form (which was risky, because
a party could just allege in court that they never actually used the oral question & answer
form; this was very difficult to prove however)
• Emperor Leo in 472 AD removed the requirement for "formality of words" - it is unsure
whether that meant words were no longer needed or whether the parties could choose their
own
• There were specific actions for stipulatio (condictio and actio ex stipulatu) but they only
regarded the promise itself, not any other clauses to the agreement - thus one needed either
exceptions or to make a stipulatio which mentioned ALL clauses

Types of Stipulations:
Ø Stipulatio poenae were penalty stipulations used to ensure the observance of the obligations
created through agreement (e.g. 3rd party stipulation: A and B make a stipulatio that if B
doesn't pay C 100euros then B has to pay A 200euros)
Ø Acceptilatio - if a debt is created through a stipulation and the debtor doesn't want to pay
anymore, he can go to the creditor and ask if the creditor agrees to extinguish the debt
through a new stipulation (this new stipulation is called acceptilatio - the debtor asks if the
creditor has received the payment and the creditor lies and say yes - thus the debt is erased)
Ø Stipulatio Aquiliana - if a debt was NOT created through a stipulation and the debtor
wanted to extinguish it, he could go to the creditor, transform the debt into a debt created
through stipulation and then extinguish it using acceptilatio
Ø Novatio - was used to renew obligations - if the creditor wanted to transfer the debt to
another creditor, he had to extinguish the the claim and then the debtor made a NEW
stipulation with the new creditor

Fideiussio
• Fideiussio (=suretyship) was a specific type of contract that was very popular as a means
to provide security with respect to obligations

NOTA BENE: suretyship = legal relationship through which a 3rd party (called the surety)
undertakes liability towards the creditor in connection to the performance of the obligation by
the debtor (e.g. if the debtor fails to perform the obligation, then the surety will have to pay for
it, not the debtor)

• In the beginning, suretyship was done through sponsio (the oldest form of stipulation) but
it was only available to Roman citizens
• Fidepromissio was the form of suretyship that was available to everyone (not only Roman
citizens); it had some disadvantages:
• Could only be used if the debt in question had been created by stipulation
• The obligation died when the surety person died
• Suretyship only lasted for 2 years
• When there were multiple sureties, then they were liable only for a proportionate share even
if one of them was insolvent (e.g. if there are 4 co-sureties each has to pay 1/4 of the debt;
if one becomes insolvent, the creditor will only get 3/4 of the debt back)
• In the end, fideiussio was adopted as the way to create suretyship:
• Fideiussio could be used in respect to any kind of debt
• Fideiussio was binding on the heirs of the surety and there was no limitation period
• When there were several sureties, the creditor could claim the full debt from any one of
them - Hadrian then changed it: the debt was to be divided among the solvable sureties (e.g.
if there are 4 co-sureties each has to pay 1/4 of the debt; if one becomes insolvent, then the
rest of them have to now pay 1/3 of the total debt)

Literature – Working Group

Derivative modes (acquire things from a previous owner)

• Mancipatio - discussed in the law of persons literature, was abolished by Justinian along
with the distinction between res mancipi and res nec mancipi
• In iure cessio - discussed in the law of persons literature, was only used for the
conveyance of incorporeal things but had ceased to be used
• Traditio (simple delivery based on a valid ground for the passing of ownership) - the
effect of a traditio depended on the cause of it (the parties agreed purpose)
• It was the consensus (that ownership was to pass) that mattered and not the fulfilment of
the cause (e.g., traditio was effective to pass ownership even though the sale was legally
void)

• Traditio requires the acquisition of possession animo et corpore, but there are certain
situations when the corporeal requirement is diminished (constructive deliveries):
Ø Traditio longa manu: in the case of immovables/big movables, it is enough to point
towards them and for them to be in the line of sight of the acquirer
Ø Traditio brevi manu: party A gives party B an object and only later decides to sell it to B -
obviously B doesn't need to give A back the object only for A to give it to him again
Ø Constitutum possessorium: A sells a book to B but they agree that A is to keep the book
on loan from B for a while

Original mode of Roman Law - Prescription (usucapio)

• The 12 Tables laid down a period of 2 years for the prescription of land and 1 year for
movables
• Prescription was used to cure defects in the conveyance of a thing (e.g., traditio of a res
mancipi) and to cure a defect in the title of the person who conveyed it (e.g., sale by a
non-owner)
• There are 5 conditions for prescription:
1. The person claiming prescription must have had uninterrupted possession for the
required period
2. The possession must have been acquired ex iusta causa
3. The possession must have been acquired in good faith
4. The thing must be capable of being owned
5.The thing must not have been at any time stolen or taken by force
• Iusta causa = a transaction according to which the possessor should have become owner,
but he didn't because of a defect in the transfer (incorrect conveyance, lack of title of the
transferror)
• Under prescription, there are 2 types of possessors:
1. Bonitary owner - someone whose title of ownership was only formally defective
due to incorrect conveyance - he was protected against everyone
2. Bona fide possessor - someone whose title of ownership was substantially
defective because it was derived from a non-owner - he was protected against
everyone BUT the actual owner

• Justinian's reforms:
Ø Usucapio was only used for the acquisition of movables (but the period was extended to 3
years)
Ø Prescription of land (longi temporis praescriptio) required 10 or 20 years
Ø He also created a new form of acquisitive prescription: longissimi temporis praescriptio -
people who acquired things in good faith (even if without iusta causa) and held it for 30
years became owners

Working Group

Question 1
The word traditio refers both to the physical act of delivery of an object (giving it to someone,
for example) but also to the method of conveyance of the right to ownership.

Question 2.
Traditio, as a means of transferring the right of ownership, requires both a valid legal basis and
a delivery, according to Paul – as such, the right is transferred when delivery is completed. In
the French system, the right to ownership is transferred when consensus is reached between
the parties, irrespective of the time of delivery. As such, the French system departs from the
Roman view on the transfer of ownership.

Question 3.
Nicholas describes delivery as colourless as it by itself did not characterize a legal relationship
– the act of giving someone an object needed an intention in order to be qualified as a
convenyance of a right, especially since delivery could result in different legal scenarios,
depending on the will of the parties (e.g., ownership could be acquired through delivery, but
so could possession and detention). It is obvious that the simple act of handing someone an
object should not carry in itself legal meaning, otherwise would go about unintentionally
transferring their rights every day.

Question 4.
Mancipatio: in the presence of 5 witnesses, the transferee received the object and paid for it,
while reciting a specific form – used for res mancipi
In iure cessio: in the presence of the Praetor, the transferee holds the object while reciting a
specific form, the Praetor then asks if the transferor opposes the transfer of ownership; the thing
is then adjudged to the transferee – used for the transfer of incorporeal things (such as a right
of servitude)
These 2 forms cannot be considered colourless as they are very specific – since they involve
the presence of witnesses and the recital of certain forms, performing them is obvious evidence
of the fact that the parties’ intention is to transfer a right. Given their specificity, there is no
worry that civilians will unintentionally perform them and risk transferring their rights away
unknowingly.

For tradition there is always the requirement of iusta causa, but there is no such requirement
for mancipatio and in iure cessio. When Justinian codified Roman Law, he did away with
mancipatio and in iure cession, and only kept tradition as the sole way of transferring
ownership.

Question 5.
The Dutch and Austrian provisions are similar to the opinion of Ulpian, according to which
valid title (consensus of the parties on the reason for the transfer) is required for ownership to
be passed. The German provision reflects the view of Julian, which argues that there is no need
for title, but only the intention of both parties that ownership is to pass (irrespective of whether
they believe that ownership passes for the same reason).

Question 6.
Usucapio requires that there is a valid iusta causa – since in this case the valid iusta causa was
for Stichus, not Damas, there is no possibility to acquire Damas as such.

Question 7.
The problem with mancipatio was that it was very formal, difficult to perform and required
both parties to be in the same place at the same time – it became easier to just use traditio and
let usucapio fix the situation (especially since the Praetor stated that people acquiring
ownership of a res mancipi through traditio would be protected by him).

Question 8.

Scenario I – Blasius sues Aulus:

1. Blasius does not have access to rei vindicatio (since he is not the real owner because
they did not perform mancipatio). The praetor created Actio Publiciana for such
situation – it was an action similar to rei vindicatio for situations like this; it’s whole
point was acting as if the ownership had actually passed, despite being aware of the
truth (it was thus based on fiction).
2. Aulus would assert that he is still the owner as the mancipatio was never performed. He
has an exception – exceptio justi domini – based on the fact that he is the actual owner.
3. In response to this, Blasius would use the replicatio: rei venditae et traditae (based on
the fact that Aulus actually sold him the hourse and delivered it to him).
Scenario II – Aulus sues Blasius:
1. Aulus would resort to rei vindicatio as he is the owner
2. Blasius would assert that Aulus sold and delivered him the horse – exception rei
venditae et traditae

Question 9.
Scenario A: After a month Geta finds out that the chandelier actually belonged to Faustus. Can
Geta continue to usucapt?

Yes – Roman Law only required good faith when you acquired possession. If you later realize
the seller did not own the object, you can continue to usucapt.
Question 10.
Scenario B:
Scenario I: Geta sues Faustus
1. Geta would invoke Actio Publiciana
2. Faustus would assert that the year necessary for prescription has not passed and he is
still the owner, invoking exceptio iusti dominii
Scenario II: Faustus sues Geta
1. Faustus uses rei vindicatio

Usucapio cannot be used for stolen things!!!