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Nuntiatio

(256 words)

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

Alienatio

(285 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] means alienation, in some cases also the authority to alienate, but not yet sale (Dig. 50,16,67 pr.). Cicero (Top. 5.28) defines abalienatio as genus for traditio alteri nexu (i.e.   mancipatio ) and   in iure cessio . Gaius (Inst. 2.65) adds to this   usucapio ( alienareiure civili) and distinguishes from it alienare iure naturali, which includes, for instance,   traditio . The meaning of alienatio also covers awarding of a thing by miscarriage of justice (Dig. 40,7,29,1). The praetorian edict is concerned with regulations on alienatio iudicii mutandi causa (for the p…

Servitus

(248 words)

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

Habitatio

(223 words)

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

Dominus

(367 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] ‘Master’ (generally, e.g. Cic. Leg. 2,15; Plin. Ep. 4,11,6). Domine/domina is from time immemorial the form of address used by children to their parents (Suet. Aug. 53,1; CIL X 7457 domine pater); the form also occurs between husband and wife (as in Scaevola Dig. 32,41 pr. domina uxor, Paulus Dig. 24,1,57 domine carissime), between close relatives, friends, and in commercial intercourse as well (cf. Dig. 13,5,26: to a creditor). Peculiar is the use of the word in relation to one's own children (CIL VI 11511; VI 17865; VIII 2862) or a ward (Dig. 32,37,2). In legal terms dominu…

Locus

(522 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] [1] Most undeveloped part of a country estate The mostly undeveloped part of a country estate ( fundus ). The estate itself forms an economic unit ( integrum aliquid, Dig. 50,16,60 pr.). The classification as a fundus or locus depends on the - dividing or linking - designation ( opinio, constitutio or similar) by the owner, be it by naming ( appellatio), by changing in the relationship of the previous nomenclature (Dig. 31,86,1; 33,7,20,7) or by changing in the bookkeeping (Dig. 32,91,3,), be it - for linking - in the course of an additional acquisition (Plin. Ep. 3,19). The lo…

Possessio

(700 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] 'Possession', primarily the actual control over a thing, but in contrast to dominium ('ownership') as full legal power. As a technical term in Roman law, possessio has partly real, partly legal features ( possessio non tantum corporis, sed et iuris est, Papin. Dig. 41,2,49,1). For example, Ofilius and Nerva filius (Cocceius [6]) consider the acquisition of possessio to be a de facto matter ( rem facti non iuris, Dig. 41,2,1,3). Therefore, a pupillus (minor, minores ) without the agreement of a guardian ( tutoris auctoritas) and even a furiosus (mentally ill person) s…

In iure cessio

(232 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] The in iure cessio of Roman law is an act of the transfer of a right in the form of a fictitious trial, the   legis actio sacramento in rem . It is - like the   mancipatio - not dependent on the existence of a cause in law ( causa), e.g. of a purchase agreement, but rather is ‘abstract’. The in iure cessio is concerned with items in which Quiritic ownership is possible (e.g. not provincial plots of land), and is only available to Roman citizens (Gai. Inst. 2,65). Some rights, like the   ususfructus , can only be transferred by in iure cessio (Gai. Inst. 2,30). The buyer takes up the…

Submissio

(147 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] ('placing as alternative') in Roman law is found as replacement acquisition in case of usufruct, in dotal law ( dos ) and in the fideicommissum . For example, if usufruct ( ususfructus ) of a herd were bequeathed (on this in detail, Dig. 7,1,68-70), the usufructuary first had to replace dead or unfit animals with young from the herd. Otherwise, he was liable towards the owner. The ownership situation in the submissio was disputed. According to Iulianus [1] and Ulpian, it was in abeyance until the submissio, while according to Pomponius the usufructuary was initiall…

Bona

(585 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] A person's property; the exact meaning depends on the context. In one sense, bona means the totality of goods in a person's possession, while the legal right to possession may be another matter: with naturalis appellatio bonorum, deriving etymologically from the word beare = to make happy, which is relevant for the fee-liable missio in bonis and venditio bonorum, possession is unrestricted (Ulp. Dig. 50,16,49). More tightly defined and restricted, on the other hand, is possession in terms of civilis appellatio bonorum; this means possession only as   dominium

Nuncupatio

(197 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Nuncupare ( nomen capere) was pertinently interpreted by the jurist Cincius as ‘express accurately, using the appropriate words’ (Fest. 176), and later by the jurist Gaius as ‘name overtly’. The Twelve Table Laws (tab. 6,1) and the augural formula spoken on the Citadel (Varro Ling. 7,8) indicate by lingua nuncupare the tongue as a tool for conveying thoughts in words. Verbis nuncupare in the devotional formula of P. Decius Mus (Liv. 8,9,8) is tautological, while nomen nuncupare (Varro Ling. 6,60) is a figura etymologica (Figures). The ceremonial promise of spolia at t…

Rei vindicatio

(691 words)

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

Ususfructus

(411 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] The right, in Roman law, to use something that one does not own without diminishing its substance ( uti, therefore usus) and to draw yield from it ( frui, therefore fructus; Paul. Dig. 7,1,1; Just. Epit.. 2,4 pr.). Ususfructus developed as early as the 3rd cent. BC. The jurists of the Republic ( veteres) debated the issue whether a slave child ( partus ancillae ) belonged to the 'fruits' (Cic. Fin. 1,4,12; Gai. Dig. 22,1,28,1; Ulp. Dig. 7,1,68 pr.). An owner could grant ususfructus to another person by way of in iure cessio (Gai. Inst. 2,30), although,…

Precarium

(310 words)

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

Res mancipi

(133 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] In Roman law, RM were objects which (Gai. Inst. 2,22) were transferred by mancipatio to another person. RM could be slaves, cattle, horses, mules, donkeys (the latter according to the Sabinian school from birth, according to the Proculian school only from being tamed: Gai. Inst. 2,15); also Italian land (Gai. Inst. 1,120), servitutes rusticae such as via, iter, actus, aquae ductus (rights of way, right to drive cattle, water rights; Ulp. 19,1) and provincial land of the ius Italicum (Gai. Inst. 2,14a). With the disappearance of the mancipatio, the importance of the …

Mancipatio

(507 words)

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

Fructus

(384 words)

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

Hypotheke

(669 words)

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

Traditio

(588 words)

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

Dominium

(211 words)

Author(s): Schanbacher, Dietmar (Dresden)
[German version] Originally signified the domestic power of the   pater familias (Ulp. Dig. 50,16,195,2: in domo dominium). From the beginning of the Imperial period dominium occurs in the sense of property (Labeo Dig. 18,1,80,3; Sen. Benef. 7,5,1; 7,6,3). In the early period, the Roman conception of property is uniform, being understood at first solely as dominium ex iure Quiritium: property rights accessible to Roman citizens and at the limit to peregrini with   commercium . Later on, in honorary law established by the   praetor ( in bonis habere,   bona ), allowed…
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