Roman Law by L. Kabir - Full Book

CHAPTER—Vm
MAGISTRATES AND JUDGES

1. Judicial system during the Republic. —The power of
determining civil causes belonged at first to the kings, and
after their expulsion it passed to the consuls. It then devolved
on the praetors and in certain cases on the curute and
plebeian ediles, who were charged with the internal police of
the city.
Jurisdiction of the praetor.—The praetor a magistrate next
in dignity to the consuls, was elected annually by the comUa
centurtata. His chief duty was to act as supreme judge in the
civil court, at Rome, and he was assisted by a council of
jurisconsults in determining questions of law. At first one
praetor, known as praetor urbanu.s, was appointed for the
determination of disputes arising between the citizens;
afterwards another praetor, known as praetor peregrirws was
appointed to decide all disputes in which foreigners were
concerned. After the conquest of Sicily, Sardinia and Spain.
New praetors were chosen to administer justice in these
provinces.
Permanent courts, which were usually presided over by a
praetor, were established for the trial of certain crimes. It
became the practice for these magistrates to remain at Rome
during their year of office and after that they proceeded to the
provinces where they dispensed justice as pro-praetors. The
first among them was always the praetor urbanus. He
performed the duties of the consuls in their absence and his
functions were considered so important that he was not
permitted to leave Rome for more than ten days.
The praetor held his court in the comitium, wore a robe
bordered with purple, set in a curule chair, and was attended
by lictors. Ulpian informs us that his assessors at Rome were
ten in number—five senators and five equestrians. These
242 Roman Law Chapter—VIII
assessors were often called judges, but they did not pronounce
the sentence which was drawn up in the praetor's name by
their advice.
Proceeding injure.—According to the judicial system long
established at Rome, it was the duty of the praetor, or other
magistrate exercising civil jurisdiction to inquire into
matters of law; and whatever business was transacted before
him was said to be done injure. When the magistrate took
cognizance both of the law and the fact, and decided the whole
cause himself, the judgement was called extraordinary. But in
the great majorilty of cases, and particularly where the
parties were at issue upon the facts, it was customary for the
magistrate merely to fix the question of law upon which the
action turned, and then to remit it to a delegate with power to
hear the cause, inquire into the facts, and pro-flounce
sentence according to the result of the investigation. There
were three kinds of delegated judges, viz.,
(1) Judex,
(2) Arbiter, and
(3) Recuperatores.
(1) Judex.—The judex was not a magistrate; he was a
private citizen invested by the magistrate with a judicial
commission to try a case. Originally he was chosen from the
senators, and afterwards from the official list of judices
selecti, which was made up of persons whose qualification
varied at different times. The judex was chosen by the parties
from the official list. If they could not agree the praetor
proposed a judex, or allowed one to be drawn by lot. Both
parties had a right to object to the judex nominated by the
magistrate. As the function of the judex was a public one, he
could not decline to act without a lawful excuse. After being
sworn to do his duty he received from the praetor a formula
containing a summary of all the points under litigation, from
which he was not allowed to depart. In deciding suits, he
admitted the claim or rejected it and he had no power to
Chapter—VIII Magistrates and Judges 243
modify it. To suppose that the office of judex was limited to
simple questions of fact would be a mistake. He required not
only to investigate facts but to give sentence, and in doing so,
law was more or less mixed up with the case according to the
extent of the powers committed to him. For this reason he was
allowed to consult one or more jurisconsults to guide him in
cases of difficulty.
(2) Arbiter.—There were two sorts of arbiters-those who
were named by the parties extra-judicially in a reference or
submission, and those who were appointed by the praetor in a
law suit. Here we are concerned with the last sort of arbiter. It
does not seem to exist much difference between the duties of
an arbiter and a judex. The arbiter, like the judex, could hear
and determine all ordinary lawsuits and received a formula
from the praetor which enabled him to pronounce a sentence.
tLe main difference between an arbiter and judex is said to
have consisted in the formula and its consequences, so that
the arbiter in substance was a judex with more extensive
powers; and like the judex, he was also allowed to take the
assistance of assessors. At a later period, the terms judex and
arbiter became practically synonymous.
(3) Recuperatores.—Besides the judex and the arbiter there
were officers called recuperatores, to whom a certain class of
cases was sent by the praetor for decision. Beaufort is of
opinion that when the praetor appointed one person to hear
and decide a case he was called judex, but when three or more
persons were named for the same suit they were called
recuperatores. According to Zimmern the recuperatores might
be chosen from the whole body of the citizens, and did not
require to be taken, from the list of judices setecti, and they
were only called upon to serve in summary affairs requiring
extraordinary despatch. The number of recuperatores
appointed for each case was usually three or five, and in the
event of difference, the opinion of the majority prevailed.
Centumviral court.—The centumvirs constituted a
permanent tribunal, composed of members elected annually,
244 Roman Law Chapter—Vul
in equal number, from each of the 35 tribes making in all 105

and to this court the decemvirs were attached. In later times
the number rose to 180. This tribunal was presided over by the
praetor. It was divided into four chambers which, during the
republic were placed under the ancient quaestors, and after
Augustus under the decemviri. These sections gave judgment
separately; but they were sometimes united, so as to form one
tribunal in affairs of great importance.
This court did not possess what the Romans called
jurisdiction. All the proceedings injure took place, in the first
instance, before the praetor, or other magistrate, who
remitted the case to be heard and determined by the
centumvirs, if it was one falling within their cognizance. The
centumvirs were competent to decide questions of status,
properly, succession etc. The date of the institution of the
centumvtrs is uncertain. It is supposed to have subsisted till
near the close of the Western Empire, but it had entirely
disappeared before the time of Justinian.
Italy and provinces.—After Italy was subjected to the
Roman supremacy, the jurisdiction of each city and its
territory was in the hands of the municipal magistrates.
Justice was administered as it was at Rome. In the provinces
the governors performed the functions of the praetor, holding
circuit courts at stated periods at certain places within their
territory, when they decided suits, either directly, or by
remitting them to a judex, or to recuperatores. The circuit
court was called conventus. The governors were accompanied
by assessors, and they were assisted by legati (deputies) chosen
by themselves, or named by the senate.
Defects of the judicial system during the
Republican period. —The judicial system at Rome during the
Republic, as will appear from the above institutions, was
defective. The superior magistrates were changed annually,
and their political duties were mixed up with their judicial
functions. They were not necessarily lawyers by profession;
and the same objection applied to the subordinate officers

who, as judices or certtumvtrs were entrusted with the power
of hearing and deciding civil causes. They had also no
training as judges. The success of the system, however, was
considerably due to the institution of legal assessors who were
selected from the most skilful jurisconsults. Though the
magistrate was not bound to follow their advices, their
opinions exercised the great influence upon his decisions.
2. Judicial system under the Empire. — Under the
Empire the consuls preserved some judicial power till the
fourth century. The jurisdiction of the praetors continued
still longer. Praetors were appointed to decide questions
relating to trusts and guardianship, and exchequer cases; and
the number of these magistrates varied considerably at
different times. Augustus fixed their number at 12; Tiberius
raised them to 16; and Pomponius tells us that, in his time,
there were 18 praetors, besides 2 consuls, six ediles, and 10
tribunes of the people.
In the time of Augustus several important changes were
introduced in the judicial institutions of Rome, and new
jurisdictions came into existence under the Imperial
government.
Powers of the Emperor.—The Emperor himself became the
supreme judge and gave decisions in law-suits by his decrees,
sometimes directly and sometimes by appeal. When the
Emperor dispensed justice, he was assisted by a council,
which, under Augustus, was composed of two consuls, a
magistrate of each grade, and fifteen senators.
Praetorian prefects.—Next in dignity were the praetorian
prefects. At first their duties were purely military, but they
afterwards discharged the most important judicial functions.
Their jurisdiction was established in the reign of Alexander
Sever-us. For a time an appeal lay from their decisions to the
Emperor, but afterwards they became final, subject only to the
246 Roman Law Chapter—Vu!
condition that a petition might be made to the prince. The

praetorian prefects were chosen at first from the equestrian
order, and afterwards from the senators.
Prefect of the city.—The jurisdiction of the Emperor and
the praetorian prefects extended over the whole Empire.
Under Augustus the prefect of the city became a permanent
judicial officer. His jurisdiction was gradually extended till it
embraced appeals from decisions of the praetors. There had
been 18 praetors in the time of Alexander Severus; there were
only 3 in the reign of Valentinian. Finally, all the important
judicial functions of these ancient Republican magistrates
were withdrawn from them by slow degrees and transferred to
the prefect of the city and the praetorian prefect, who had
formerly stood nearly on a level with the consuls, were given
the duties of directing the public games.
Italy and the provinces.—Beyond Rome, in Italy and the
provinces, jurisdiction continued under the Empire to be
divided between the municipal magistrates and the governors.
but the competency of the municipal magistrates, which was
formerly unlimited, was restricted to suits not exceeding the
value of fifteen thousand sesterces, equal to about £125, and
their criminal jurisdiction was in a great measure absorbed
by that of the governors.
Judices pedanei.—Judices pedane ( inferior judicial
officers) were appointed by the governor of a province to try
cases of minor importance. Cases within their competency
were brought directly before them as permanent judges; but an
appeal lay from their decisions to the governor. The title
pedaneus was given to those judges because they were placed at
the foot of the judicial ladder,
Changes by Constantine.—Constantine reduced the powers
of the praetorian perfects by depriving them of their military
prerogatives and limiting them to purely civil and political
duties. Their number was increased to four, and they were not
kept in office for more than a year. The Empire was divided
into four prefectures—(1) The East, (2) lllyria, (3) Italy, which
included Sicily, Sardinia, and Africa, and (4) the Gouls, which
comprehended Spain and England. Each of these four
departments was administered by a praetorian prefect, who
acted as supreme judge in law-suits raised within his
prefecture.
Under the prefect, vicarii, invested with judicial powers,

were placed at the head of each diocese, which comprehended
many provinces. Each of the provinces had a capital or
metropolis. In the provinces the governor, called praeses or
rector, was judge ordinary, acting sometimes in the first
degree, and sometimes deciding appeals from the municipal
magistrates and other inferior judges, such as the judices
pedanei and the defensores civitatum.
Originally the defensores civitatum had civil jurisdiction
in suits not exceeding 50 solidi but augmented by Justinian to
300 solidi; and they also had power to try for petty
delinquencies. Dr. Colquhoun stated that Constantine
reduced the weight of the aureus and called it solidus. The
value of the solidus or aureus of Justinians age is said to have
been about 1 is. 6d. (Summary of Roman Civil Law, vol. III, p.
154-155).
CHAPTER-4K
ACTIONS AND PROCEDURE
1. Civil procedure.—Under the Roman law the history of
civil procedure is divided into three stages:
(A) Legts actones (actions of law).
(B) Formulary system.
(C) Extraordinary procedure.
(A) Legis actiones. — Legis actiones mean the actions of
law. Its main feature consisted in extreme formalities. A
process could only be introduced by uttering certain
sacramental forms which, were called the actions of law. The
party to the litigation had to utter some prescribed formula
before the magistrate at the time of presenting the case. They
could not depart or vary from them. If they departed or varied,
no case would lie. According to Gaius the legis actiones were
five in number, viz.,
(a) Actio sacramentL
(b) JudtcLs postulatlo.
(c) Condictio.
(d) Manus injectio.
(e) pignoris capio.
Strictly speaking, the first three were actions proper and
the last two were the modes of execution.
(a) Actio sacramenti. — It was the oldest form of
procedure. This action was of general application for all
matters for which no other form was prescribed by law. Thus
it was applicable in claims to property, to recover a wife in
manu or a fiuusfamtlias from a person who wrongfully
detained them, to a servitude, and to personal clamis which
resulted in the payment of a definite sum of money or of a
particular specific thing. In other words it was employed for
all things for which the law had not given special action. It
Chapter—IX Actions and Procedure 249
was necessary that the object in dispute must be brought into

the court. If this was impossible (because the object related to
land or a house), some part of it was produced such as a clod of
earth to represent the field itself. The plaintiff holding a wand
in one hand, seized the object with the other and claimed
ownership. The defendant also went through exactly the same
ceremoney. Then the praetor ordered them to release their
hold on the property. The plaintiff next asked for the
defendants title and the defendant in reply asserted his
ownership over the object. Whereupon the plaintiff denied the
right and challenged the defendant to a bet or stake of a sum of
money called sacramerttum and the defendant made a like
challenge. After this ceremony the praetor awarded
possession of the object to one of the parties pending the trial
and required the person so given possession to give security to
his adversary that if he lost the case he would restore the
thing and its profits to him. The case was then referred to the
judex or other delegated tribunal for trial. Before the judex or
other delegated tribunal parties were heard, evidence was
adduced and after pleadings in detail, sentence was
pronounced. The stake or wager of the losing party was
forfeited to the state for the benefit of the public worship. The
actio sacrarnentj derived its name from the sacramenturn or
sum of money which the parties deposited with the praetor by
way of stake or wager.
Summons—In the earliest times the action was
commenced by the plaintiff summoning the defendant to
appear before the praetor or other magistrate. According to
the law of the Twelve Tables, if the defendant refused to go
quietly, the plaintiff, after calling witnesses to his refusal,
could drag him before the court by force. The law did not
impose a legal duty upon the defendant to obey; if he did not
go, no further proceedings could be taken. All that the Twelve
Tables authorised was that, on proof of a refusal, the
complainant might use force without incurring any liability.
250 Roman Law Chapter—IX
(b) Judici.s postulatio.—Of the legs actio per jud(cis

po.stulattonem nothing is really known for that part of the
miss of Gaius which related to it was lost. This action seems to
have applied to petty cases when the sum in dispute was less
than 50 assess. It is also conjectured that this action applied
also to other personal claims of unliquidated damages which
means an unascertained sum, such as compensation and
expenses of illness in trtjuria. Where this action was available
the plaintiff had the right, after stating the facts of the case, to
demand to the magistrate (praetor) to have a judge appointed
without going through the preliminary sacramental
procedure. In this action it was not necessary for the plaintiff
to stake a sum of money.
(c) Corzdictio. The legis actLo per condictiortem was
introduced by a lex Si! ía of uncertain date and confined to the
prosecution of obligations. It derived its name from the
coricUctio, the formal notice given by the plaintiff to the
defendant to appear before the praetor on the 30th day from
the date of notice for the appointment of a judex. It was the
peculiarity of this action that the parties, at the plaintiffs
suggestion, mutually agreed that the person whose claim
proved unfounded should give the other not merely the sum or
thing in dispute, but one-third of its value as well. In other
words, there was a wager in this action as in the case of actio
sacrarnenti, but here the wager went to the party proved
successful and not to the state. The distinction between
sacramentum, postulatioriem and condictio was, according to
Poste, that the sacrarnentum was practically confined to real
actions before the centumv(ri; the judicis postulatio would be
the personal action for unliquidated sums; while cortdictio
app led to claims on a mutuum to a stipulation for some
definite sum or thing and to money due on a literal contract.
(d) Mantis injectio. Marius injectio (seizure of the

person of the debtor) was a mode of execution upon the person
of the debtor i.e. the creditor tookthe body of the debtor in
satisfaction of his claim, as authorised by the Twelve Tables.

It was available only in the case of debtors who had admitted
their liablility or against whom a judgment had been
obtained. The debtor was given a period of 30 days grace. At
the end of that period the creditor might arrest the debtor and
take him before the magistrate. If the debtor did not pay the
debt in the presence of the magistrate or if nobody offered to
guarantee the payment, the creditor took him away, put him
in fetters, and provided him with corn daily, unless the debtor
preferred to find his own food. The creditor could keep the
debtor in prison for 60 days and on three consecutive market
days the creditor had to produce the debtor publicly before the
praetor and proclaim the amount due. If no payment was
forthcoming the creditor was free to kill him or sell him as
slave beyond the Tiber. If there were several creditors they
could cut him into several pieces which were divided among
themselves.
(e) Pignoris capio.—PIgnoris caplo (seizure of the goods)
as described by Gaius was a mode or execution upon the
property of the debtor. (Literally pignoris capo means the
taking of a pledge, i.e. security for payment). This, however,
did not apply to ordinary private debts but only to a few
exceptional claims relating to the public treasury. The
pignoris cczpio bears an analogy to the English law of distress.
Defects of legis actio.—Firstly, the legis actiones were
excessively formal in their nature. A strict adherence to the
forms was essential, when relief was sought under them. The
litigant and the magistrate had to take part in it. They had to
act in a prescribed way and utter some prescribed formulas.
Any variation from the exact words and gestures prescribed
was ruinous to the cause of action. In one case a person who
complained that his vines were cut down, lost his case because
he used the word vines instead of 'trees.' The law mentioned
only trees in general. Its extreme technicality was its chief
defect. Secondly the system of leg us actiones was incapable of
adequate expansion. In theory no right could be enforced by a

legis action unless it came within the letter of some existing
law. Though the early jurists did something to, remedy this, it
was only possible by interpretation to deal with cases that
were in some sense analogous. So a new right was not
recognised though such recognition was describable having
regard to the increasing complexity of affairs. Thirdly, the
parties had to appear in person. There was no scope for
representation for attorneys and lawyers. Fourthly there were
two parts in the legal actions: (i) the proceeding injure (before
the magistrate) and (ii) the proceeding injudiclo (before the
Judge or judex). When the prescribed ceremonies necessary for
the introduction of actions were over, the case was referred to
the judex who was generally a private individual.
(B) The formulary system.—The system of legLs actio

was superseded for its extreme formalities by the formulary
procedure. By the lex Aebutia (150 B. C) and the leges Juliae,
the legis actiones were wholly abolished. The formulary
system was first introduced in the court of the praetor
peregrinus when he was administering justice in cases where
one of the parties was an alien. In administering justice he
avoided all the ceremonies. Under the formulary system, the
action began with a preliminary hearing before the praetor
who heard both the parties. If he was satisfied that a
primafacte case was made out, he drew up a formula which
was remitted to the judex to regulate his decision. The formula
was a written instruction to the judex in accordance with
which he had to decide the case. The formula always began
with the appointment of the judex, who had been agreed upon
by the parties, e.g. Let there be a judex. 'It also described the
cause of action, the allegation of the parties and the points at
issue. Here, as in legis actio, the process was divided into two
parts, one took place before the praetor (injure) and the other
before the judex (tnjudicio). All the formulae generally in use
were to be found in the album praetoris, and they were added
from time to time to suit the exigencies of particular cases.
The formulary procedure was less formal and more suitable
for the growing commercial needs of the country.
The formula contained not merely the claim but also the
defence (exceotto). When the formula was prepared, it was
handed over to the plaintiff in presence of the defendant. Here
the proceeding before the praetor ended and the Utis-
contestatlo took place. (See section 3 post).
Parts of the formula.—The formula usually contained
three distinct parts
(1) Demons tratio,
(2) Intento, and
(3) Condemnatjo,
(1) Demonstrat j o—The 'demons tratlo' stated shortly
what was the matter in dispute. It was, therefore, a short
recital of the material facts of the case out of which the
plaintiffs claim arose. It was, therefore, a statement of the
facts of the case and not a statement of the claim. It always
began with 'whereas' (quod).
(2) Intent j o—The 'intertUo' set forth the plaintiffs claim,
and the question which the judex was called upon to decide,
e.g. to find out whether Y is indebted to X. In short, it
contained the issues upon which the judex was to decide the
case.
(3) Condemnatio. The 'condemnatio' directed the judge
to condemn or acquit the defendant, according to the result of
his examination of the affair.
Besides the above three parts, the following might be met
with:—
(4) Adjud(catjo
(5) Excepto and
(6) Replicatlo.
(4) Adjudicatio—The 'adjuclicatio' only occurred in case
of partition suits. This clause enabled the judge to divide the
property among the various parties to the suit. When a process

was raised to divide a property held in common between the
parties, the term 'adjudlcatlo' was used in place of
'condemnatio."
(5) Exceptio—In certain cases an exceptio, raised by the
defendant, was inserted in the formula. An exceptio was a
defence which primarily admitted the claim of the plaintiff,
but alleged some other circumstances which nevertheless
barred the claim. Thus the defendant might admit a loan and
at the same time might state some circumstances (e.g.
limitation) which would make the loan unenforceable.
Similarly the defendant might admit a contract and at the
same time might state that it was induced by fraud (exceptio
doll). In such cases, the praetor entered in the formula an
exceptfo, i.e. a statement to the effect that the plaintiff should
not succeed if the facts alleged in the exceptio were found to be
true.
The burden of proving the exceptio was upon the
defendant. A defendant who relied upon an exceptio as a
special defence could not raise it before the judex (injudiclo)
unless it had been urged previously before the praetor (injure)
and the appropriate exceptio had been inferred in the
formula.
Exceptiortes were dilatory and peremptory. Dilatory
exceptiones were those whereby an action was legally
competent but brought at an improper time or in an improper
manner, e.g. before a court having no jurisdiction. These
dilatory exceptiones were to be raised at the beginning of the
suit, otherwise they were held to be waived. Peremptory
exceptiories were entered into the merits of the case. They not
only freed the defendant from the suit but totally destroyed
the plaintiffs right of action. Various examples of exceptiones
are given in the Institutes viz., res judicata, prescriptiofl
fraud, violence, forgery etc.
The praetor allowed all reasonable defences. It was partly
through these exceptiones that equitable principles of
jus
gentiurn found their entrance into Roman law.
Chaptei—JX Actions and Procedure 255
(6) Rep licatio—A repUcatio was a clause which might be

inserted after he excepUo for the plaintiffs benefit, because if
it was proved, it destroyed the force of the exceptio. Thus a
claimed 50 aurei from B: an except io was raised by B that A
made an informal release of the debt. A replied to the exceptio
that although he (A) promised to release B, B subsequently
undertook to pay the debt inspite of the release. If this
replywas proved, the value of the exceptio was destroyed and
if A made out his original claim he succeeded. This answer to
the exceptto was called replfcatto; a duplicaton, was the
answer to a replication: a triplication to a duplication and so
forth. In these pleadings the defendant was always entitled to
the last word.
Summons and procedure.—Under the formulary
system, which marked the finest period of Roman
jurisprudence, the summons to appear in court was given at
first verbally and afterwards in writing. If the defendant
refused to follow the plaintiff, or to give security to appear on
the specified day, he was subjected to a fine: and if he made no
appearance the magistrate could put the plaintiff in
possession of the defeaulter's goods. When both parties
appeard before the magistrate, the plaintiff pointed out the
action he wished to use, and his adversary explained the
grounds of his defence, and the exceptio which he desired to be
inserted in the formula. If the praetor considered the claim
and exceptio relevant, he prepared the formula, and appointed
the judex for the trial of the cause. After the delivery of the
formula the parties appeared, on a day fixed for the purpose,
before the judex: the cause was pleaded, witnesses were
examined, the advocates on both sides were heard, and the
sentence was pronounced. When the sentence was given by the
judex, his office came to an end, and his power ceased. For the
purpose of execution it was necessary to resort to the
magistrate.
Such was the ordinary course of procedure during the
formulary system. But there were cases in which judgment
was given by the praetor or other magistrate himself without
Roman— 18
remitting the case to a judex, and these were called judica
extraordinarta. The formulary system remained in force
from near about the close of the Republic till the reign of
Diocletian in 294 A.D.
(C) Extraordinary procedure. —The old constitution of
Rome ceased to exist at the time when the government became
Imperial. The constitutional changes effected corresponding
changes in the judicial system and in the form of procedure.
The formulary system was superseded in the Imperial period
by a new system known as extraordinary procedure. It was the
last and the only procedure that existed under Justinian.
As the manners of the people deteriorated, it became very
difficult to get suitable men to undertake the irksome office of
judicies in civil suits. This difficulty was chiefly experienced
in the provinces. By a constitution of Diocletian in 294 A.D.
the provincial governors were directed to decide all cases
brought before them without remitting them to a judex. This
was followed by other ordinances which established the new
system throughout the Empire. The formulae were no longer
required; after they remained in use for some time by force of
habit, they were expressly abolished by Constantine in 342
A.D.
The distinguishing feature of the extraordinary procedure

was the separation of the functions of the magistrate from
.those of the judex. the old distinciton between proceeding
before the magistrate ((rijure) and proceeding before the judex
(injudico) was abolished. All questions of law and fact were
discussed and decided by the same magistrate. Nothing was
referred to the judex. The procedure was called extraordinary
because even before its institution such a procedure was
allowed under exceptional circumstances. What was formerly
regarded as an exception became the general rule. Hence the
name extraordinary procedure.
The system of extraordinary procedure as developed under
Justinian was as follows
Summons.—In the first place, it was not necessary for the

plaintiff to secure the attendance of the defendant before the
magistrate.The magistrste himself summoned the defendant
to appear on the plaintiffs written petition (libellus
corwentiorus) and the summons was served by an officer of
the court who might arrest the defendant if he refused to
appear before the court. The written petition had to be signed
by the plaintiff or his agent and in addition the plaintiff
undertook, by a security (cautio), to duly pursue his action and
to pay the costs of the defendant if he lost the case.
Defence.—The defendant was given the opportunity to
make his defence in writing. The statement of defence made
by the defendant was called the libellus contradtcttonis. The
defendant could admit or deny the claim of the plaintiff or
while admitting the claim he could adduce some other
circumstances to defeat the plaintiffs claim e.g. resjudicata,
limitation, fraud, violence, essential error etc.
Framing of issue.—Then the issues were framed by the
court. Trial—The next step was the trial proper. The day was
fixed for trial. Witnesses could be adduced by the parties. The
parties could be represented by their agents. Finally after
hearing the evidence and arguments the magistrate settled the
whole matter and gave judgment.
2. Appeals.—An appeal is an application to a superior
judge to review the decision of an inferior one on the ground
that it is informal or erroneous. The effect of an appeal is
usually to suspend the execution of the judgment till it is
confirmed by the superior court. The first title of the 49th
book of the Digest deals with appeals.
During Republic no appeals in civil suits.—During the
Republic there was no right of appeal in civil suits against the
judgment of a judge, for each judge had power to decide finally
within the limits of his jurisdiction, and even the sentence of
the judex, as a general rule, was not subject to review by the
magistrate who appointed him. In such cases the only mode in
258 Roman Law . Chapter—IX
which a person could obtain relief was by the intercessio

(veto) of certain magistrates of high rank. There were cases in
which the praetor interposed to stop the proceedings of his
colleague. The veto was purely negative. It stopped the
proceedings, but it could not substitute anything in its place.
The tribunes could also use their authority to prevent
execution of a judicial sentence. Thus when the praetor
condemned L. Scipio for embezzlement, the tribune allowed
execution to pass against his property instead of sending him
to prison. In exceptional cases the praetor annulled the
judgment by granting "restitutio in integrurn."
Appeals competent under Empire.—From the time of
Augustus a regular system of appeals was established. At
Rome an appeal lay against the judgment of all the
magistrates to the prefect of the city, and then from the prefect
of the city to the praetorian prefect or the Emperor. M.
Aurelius, by a rescript, allowed an appeal from the judgment
of a judex to the magistrate who appointed him.
In Italy and in the provinces there was an appeal from the
municipal magistrates in the first instance to the governors,
and from them to the praetorian prefect or to the Emperor.
Under Justinian all appeals were to be filed within ten
days from the date of the judgment. The same Emperor
directed the Imperial court (auditorium principles) not to
entertain any appeal under the value of twenty pounds of gold,
and all cases below that standard were remitted to one or
more judge, whose decision was declared to be final.
3. Litis contestatio and its effects.—Literally litis
contestato means contest in a litigation between the parties
on a subject matter. Under the Roman law litis contestatio
arose when the issues were joined (the joinder of issue). The
issues were joined after hearing both the parties. It was the
beginning of the action proper. Under the legis actiones and
the formulary system, litis coritestatio took place when the
proceedings before the magistrate (injure) terminated. In legis
Chapter—DC Actions and Procedure 259
action proceedings injure terminated when the form or the

dramatic exhibition was complied with and in formulary
system when the formula was complete and delivered for the
investigation of the judex. At a later period, under the system
of Justinian, when all proceedings took place before the
magistrate litis contestatio arose when the case was ready for
hearing i.e. after the plaintiff had stated his claims and the
defendant his answers or defences.
Effects of litis contestatio.—Litis contestatio had the
following effects
(i) After Utis contestatio the subject in dispute became
litigous and could not be alienated.
(ii) Thenceforth the action was good against heirs.
(iii) The action became us pendens (pending litigation)
and prescription was arrested i.e. the prescription
was stopped there. The limitation would no longer
run against the plaintiff after litis contestatio.
(iv) From this moment the defendant, if he subsequently
failed, was bound to account to the plaintif for all
profits or fruits arising from the object in dispute,
and was liable for exacta dlligentia in the custody of
such object.
(v) Both parties were bound under a quasi-judicial
contract to submit to the decision of the judge.
4. Actions.—An action (actio) is the right of suing before a
judge for what is due. It is also applied for the enforcement of
right and in that sense it has been defined as a judicial
demand for attaining or recovering a right. He who makes the
claim is called the plaintiff (actor), and he who is subject to it,
is called the defendant (reus).
Different kinds of actions.—The Romans divided actions
into various kinds. The principal divisions were the
following :-
(1) Real and personal.—A real action (actio in rem) was
brought in respect of a right which the plaintiff enjoyed
against all the world, though only one particular individual
had infringed it, e.g. the owner of a thing, or the holder of an
inferior right such as servitude, pledge, or the like. A personal
action (actio in personam) was founded on an obligation
undertaken by another and was directed against the person
bound or against his heirs or universal successors.
(2) Mixed action.—A mixed action was that which was both
real and personal, e.g. an action for the recovery of a thing
and the enforcement of a penalty.
(3) Civil and praetorian action.—A civil action was
founded on laws, decrees of the senate, and the Imperial
ordinances. A praetorian action was one introduced by the
edicts of the praetors. Here no action lay under the law, but the
praetor granted it in consideration of equity or public utility.
By the strict rule of the civil law, no one was bound by the
contracts or deeds of another, but this rigour was relaxed by
the praetor in many cases where equity or public utility
required it. Thus the actio ins titoria was allowed against the
principal upon the contracts of those whom he employed as
managers or superintendents of a farm or any other
particular branch of business; and under the actio exercitoria
a similar remedy was given against the owners of a ship, upon
contracts for necessary repairs or provisions entered into by
the shipmaster.
(4) Ret persecutortae and penal action.—By the former the
plaintiff simply asked to recover what was his own, including
any loss or damage sustained by him. In penal actions, which
always arose from delict, something more was demanded by
way of penalty.
(5) Stricti juris and bonae-fidei action.—During the
prevalence of the formulary system great importance was
given to the distinction between strictijuz-is and bonae-Jidei
action. The first was an action of strict law; here, the formula
Chapter—TX Actions and procedure 261
issued by the praetor limited the power of the judge to the

strict letter of the law and he was not allowed to travel beyond
that. The second was an equitable action which embraced
actions arising from consensual contracts, such as, sale,
hiring, partnership, mandate and other contracts. Under the
second action the judge would take into consideration what
was fair and equitable between the parties. Thus in a bonae-
fldei action formula never imposed a fixed limit upon the
claim by naming a definite sum but was always general in its
terms.
(6) Actio arbitrariae.—It was an action where the judge was
instructed in the formula (condemnation) only to condemn in
damages if the defendant failed to do some act, e.g. to restore
the plaintiffs property. The judge had a discretionary power
to compel specific performance of a duty by fixing a heavy
penalty on nonperformance, e.g., on failure to return an
object deposited.
In Justinian's time the judge had full power to decree
specific restitution without giving the defendant an
alternative. By this action the plaintiff would get restitution
of property.
(7) Actro utWs and directa.—Actio utiUs was an action
granted by the praetor by extending the existing form of
action to analogous cases for which there was no such
provision. The praetor, instead of introducting a new right,
retained the formula and modified it to suit the new facts. An
action of this kind was called an utilis actio because it was
utilised to meet new cases. The modification might be made by
means of a fiction. The praetor granted in his edict an acUo
servana to a farmer (actio directa). Subsequently, finding it
necessary to protect other mortgages, besides farmers, he
modified the intent(o and created a new action (quasi-
serviaria) to meet the new cases.
An actio directa was one of the forms of action as provided
by law. The judge followed exactly the words of law as found in
262 Roman Law Chapter-1X
the formula in the determination of suits. This action was

brought by an injured person against the wrong doer.
5. Limitation of actions.— Originally all actions
founded upon the civil law were perpetual (perpetuae) and the
right to sue was not extinguished by lapse of time. On the other
hand, praetorian action lasted for a limited time (temporales)
and the right was lost if not brought within a year.
Conversely, even a civil law claim to specific property in the
hands of another might be lost by the operation of usucapio;
the querela inoflIciost testameuti was expressly limited to
five years. But the old distinction between actiortes perpetuae
and actiones temporales continued down to the time of
Constantine who provided that the right should be lost if not
brought within thirty years. At last Theodosius in 424 A.D.
extended this thirty years' limit practically to all perpetual
actions. Under Justinian the statutory period of limitation
was the same.
6. Interdict.—An interdict was an order issued from the
praetor or other judge by virtue of his imperium, directing an
individual to do or not to do some act. It is analogous to
injunction. It was granted in case which required the
summary interposition of a judge to preserve property or
rights in danger or immediate invasion. Interdict was used
mainly in disputes about possession. Possession of property
was regarded as an evidence of ownership. A person in
possession had a right to continue it against everyone who
could not show a better title. Where there was any dispute as to
the ownership of property, the lawful possessor was entitled
to continue his possession till the question of right was
finally decided; and if he had lost possession by violence or
stealth, the judge would summarily restore it to him.
Different kinds of interdict.—By the Roman law interdicts
were of the following kinds :-
(1) Prohibitory.
(2) Restitutory.
Chapter—Ix Actions and Procedure 263
(3) Exhibitory.
(1) Prohibitory.—The prohibitory interdict was ordered
to prohibit the doing of some act, e.g. disturbing
possession.
(2) Restitutory.The restitutory interdict was ordered
16 restore something wrongfully taken from
another's possession.
(3) Exhibitory.—The exhibitory interdict commanded
the exhibition or production of some person or
property wrongfully detained. Under this interdict
was the guarantee of individual liberty; it prevented
any free man from being detained by any one
whatever. It resembled the writ of habeas corpus.
Object of interdict.—Interdicts were granted in order
that possession might be (1) acquired, (2) retained, or (3)
recovered.
(1) Interdicts for acquiring possession were :-
(a) Quorum bonorum.—By this interdict goods belonging
to an inheritance were acquired by the bonorum
possessor i.e. the person who succeeded to a deceased
person under the edicts of the praetor. He was the
praetorian heir.
(b) Salviarium.—This Interdict was granted to enforce
the landlord's hypothec for payment of rent. The
landlord who had a hypothec over the stock of his
tenant as security for rent, could obtain possession
of it by this interdict.
(2) Interdicts for retaining possession were:
(a) Uti possidetis.—This interdict was granted in favour
of one who was in possession of movables. But to get
the benefit of such interdicts, his possession at the
date of the litigation must have been lawful. and not
obtained from his adversary by violence,
clandestinely, or by permission.
(3) Interdicts for recovering possession were :-

(a) Unde vi.—By this interdict possession could be
recovered by one who was forcibly ejected from lands
or buildings. This remedy applied only to
immovable property.
(b) As regards movables seized by violence, the possessor
could obtain redress either by utrubi, or in the form
of action vi bonorum reptonim, or vtfurti, or ad
exhibendurn. After the abolition of formulary
system, interdicts were superseded by actions.
7. Judgment.—Judgments are interlocutory or final. An
interlocutory judgment is a decision on an incidental point
which does not exhaust the merit of the case. A final
judgement is one which terminates the action by determining
the whole matters in dispute.
Under the Empire every judgement required to be reduced
to writing and signed by the judge. It was entered in a register,
and a copy was delivered to the parties. In the East, after
Arcadius, the judgement might be drawn up in Greek, but the
use of Latin was retained at Constantinople down to
Justinians time.
8. Modes of execution of judgment in early times.—
Under the Twelve Tables, after judgement the debtor was
allowed 30 days for payment of the debt. After the expiry of
that time he was assigned over to the creditor by the praetor,
and was kept in chains for 60 days, during which he was
publicly exposed for three market days, and the amount of his
debt was proclaimed. If no person released the prisoner by
paying the debt, the creditor could sell him as a slave to the
foreigners. When there were several creditors, they were
allowed to cut the body of the debtor into pieces, and divide
those among them in proportion to their debts, but some
writers contend that the price was divided among the
creditors when the debtor was sold as a slave. There was no
doubt thaL he debtor might be sold as a slave; but according to
Aulus Gellius, there was no instance of killing the debtor.
Chapter—Tx Actions and Procedure 265
Such was the state of law at the time of the Twelve Tables.
The lex Poetelia, probably of 326 B.C., brought some relief and
mitigated the severity of the form of execution by abolishing
the creditors right to sell or kill his debtor. But still the
creditor retained the power of attaching the person of his
debtor (manus injectio).
By the time of Gaius, however, a new method of execution
against the property of the debtor, was devised by the praetor
(jushoriorium,), and it was known as 'vend(tio bonorum.' The
praetor, on the petition of the creditors or some of them,
granted 'mLssio in bona,' i.e. made an order authorising them
to take possession of all the debtors estate. After an interval
of 30 days from the time the property had been seized, during
which other creditors could join in the possession, the
creditors met and elected a manager to conduct the sale of the
property of the debtor. The sale took place by public auction at
the end of ten days. At the auction the estate of the debtor was
sold as a whole to the highest bidder (emptor bonorum). The
sale proceeds were rateably divided among the creditors. The
auction purchaser thereupon became entitled in quity to the
'un(vers(tasjur(s' of the debtor. He was regarded as quasi heir;
he could sue for debts owing to the estate he purchased by a
formula based on such fiction (actio servianc4, or if he wished,
by the formula Rutiliana, where the iutentjo was in the name
of the person whose estate he had purchased and the
condemnaijo was in his own name. Conversely the creditors
of the estate could sue him by the like fiction, i.e.of heirship.
To get in the corporeal property belonging to the estate the
purchaser had the irtterdictum possessorium.
A more merciful method of execution, however, is
mentioned by Gaius (cessio bonorum) as taking place in his
time under the Julian law. This law, passed under Julius
Caesor (Augustus), enabled a debtor to make a voluntary
surrender (cessio) of all this property to his creditors, who
sold them in satisfaction of their claims. A debtor adopting
this method avoided infamy and was freed from

imprisonment. But he was not released from his debts unless
the creditors were fully paid. If the debtor subsequently
acquired property his creditors were entitled to attach it,
except those that were necessary for his own subsistence.
In the time of Justinian manus injectio and vertthtio
bonorum were obsolete. The mode of execution in his time was
as follow.—In the case of ordinary execution (where the debtor
was not insolvent), it was made by seizure and sale of the
debtor's property under the order of the court. When the
execution was in bankruptcy, the magistrate, on the
application of the creditors, appointed a curator, who, after
an interval of two years (in case of creditors within the same
province or four years, (incase of creditors of different
provinces) sold the debtor's property in lots. The proceeds
were divided among the creditors. Even under this system the
after acquired property of the bankrupt could be seized by the
creditors until they obtained payment in full.
CHAPTER—X
CRIMINAL COURTS AND PROCEDURE
1. Criminal courts.—
(a) Criminal jurisdiction of the king and consuls.—
The kings were the suprems judges in criminal trials, and
they were assisted by a council. After the termination of
kingship, the power of trying and punishing capital crimes
devolved on the consuls. They had the power of life and death.
But this power was of short duration. By the Valerian law of
449 B.C., every citizen had a right to appeal to the people
against any criminal sentence pronounced by a magistrate.
Subsequently the direct jurisdiction of the c(mitia was
established for the trial and punishment of all serious crimes
involving life and right of a citizen. The Twelve Tables also
expressly provided that no citizen was to be tried for any
offence involving his life or his rights as a citizen, except
before the comtja of the centuries. The laws of this kind
gradually reduced the criminal jurisdiction of the consuls and
other magistrates. In times of civil commotion, however,
when the liberties of the people were endangered the senate, by
a decree, invested a dictator or the consule sith extraordinary
powers, by virtue of which they might put any dangerous
citizens to death, and execute summary justice upon all
offenders, without regard to the ordinary forms of law.
(b) Criminal jurisdiction of the senate. —During the
Republic, the senate possessed no regular jurisdiction in
criminal cases. It sometimes exercised criminal jurisdiction
and decided criminal cases either by itself or by
commissioners taken from its body. This power was derived
from the express or tacit delegation of the people. On some
extraordinary emergencies, the senate, along with the
consuls, had the power to punish state criminals summarily.
An example of this is found in the proceedings against the
Roman Law Chapter—X
268
conspirators associated with Catiline and some of whom were
strangled in prison without regular trial, under the
consulship of Cicero. The people, however, viewed, this
measure as dangerous and unconstitutional stretch of power.
Although it was generally acknowledged that Rome had been
preserved from great peril by the vigorous conduct of Cicero,
he was afterwards driven into exile, under the law of Clodius,
for having put Roman citizens to death without trial.
Though the senate, during the Republic, had no proper
criminal jurisdiction over the city of Rome, they took
cognizance of all serious crimes committed in Italy and the
provinces.
Under the Empire, the senate was invested by the prince,
exercising the powers of dictator, with criminal jurisdictions
particularly in all offences against the state and the person of
the Emperor, as well as in crimes of extortion by provincial
magistrates and capital charges against senators. Frequently
the Emperor attended the deliberations of the senate. The
senators held their office during his pleasure and they became
a mere instrument in the hands of the Emperor who abolished
all its authority. The real authority belonged to the Emperor.
(c) Criminal jurisdiction of the comitia.—There were

three popular assemblies at Rome :—(a) Comttra curiata, (2)
Comitia centuriata and (3) Comitta tributa.
At the commencement of the Republic, the assemblies of
the people appear to have acted as a court of review in those
criminal cases only where an appeal was made from the
sentence of a magistrate. But after the power of the magistrate
as criminal judges had been restricted by successive laws
(Valerian laws and others) the comitia centuriata became the
regular court for the trial of all the more serious crimes
committed by Roman citizens. The Twelve Tables, passed in
this assembly, provided that no Roman citizen could be tried
for any offence involving his life or privileges except by the
Chapter—X Criminal Courts and Procedure 269
comll(a centuriata. The judicial power so conferred on the
popular assembly was regarded as fundamental part of the
Roman c onstitution, and the surest safeguard against
injustice and oppression down to the close of the Republic.
The comitia tributa like wise acted as a supreme court of
criminal judicature, but the limits of its jurisdiction are not
very clearly defined. Originally, it claimed the right of giving
judgement on those offences which were regarded as
infringement of the privileges of the pleberians. But as the
power of the tribunes increased, they grew bold and
un scrupulous, and occasionally they brought before the
comtja tributa capital offences which did not fall under their
cognizance. Thus Coriolaiius was condemned by the assembly
of the tribes, but this was considered a flagrant violation of
the constitution Cicero was convicted and driven into exile
by the same tribunal; but he complained that it had no power
to try him on the charge of perduellio (treason), brought
against him by Clodjus, which could only be tried before the
assembly of the centuries. Many writers are of opinion that,
although the comitia tributa
sometimes exceeded their
powers, they were prohibited by law and established usage
from inflicting any punishment more severe than the
imposition of a fine. In criminal trials before the comitja, no
one could act as an accuser except a magistrate. As a general
rule, no one could be brought to trial while holding any of the
higher offices of state, though this was sometimes departed
from. But all magistrates might be called to account for
malversation after their year of office had expired. When
threatened with a criminal prosecution by Milo, Clodius
avoided it by getting himself elected edile.
In a trial before the comitia, the people gave their votes in
the same manner as in passing a law.
(d) Criminal jurisdiction of commissioners

quaestiones perpetuae). —When the population of Rome
—ncreased it was inconvenient to convene the citizens in the
Roman Law Chapter—X
270
assembly for the trial of offenders. So the jurisdiction of the
people was delegated to one or more persons, invested with
temporary authority to try particular crimes. These judges
were called quaestors and the trial was termed quctestio. Their
authority ceased when the trial was over. The ordinary
magistrates were most frequently appointed as
commissioners, and sometimes private persons. In matters,
falling under their jurisdiction the senate usually appointed
quaestOrS from their own body.
In the early ages of the Republic, a special commission was
set up to try each case. But in the beginning of the seventh
century, when offences had become numerous and varied,
permanent courts were established for the trial of crimes of
frequent occurrence. These courts were called quaestiofleS
perpetLLae. At first Calpurnius Piso, a tribune of the people,
introduced a law, de pecunus repeturidiS whereby a
permanent commission was established for the trial of
extortion committed by provincial governors. This court was
composed of a praetor, who acted as presiding judge, without a
deliberative voice, and a certain number of judices,
resembling in many respects a modern jury. Chosen from the
senators. As the experiment was successful, it was soon
extended to other crimes, such as treason, peculation and
bribery. When the criminal code was remodelled by Sylla, new
courts of similar description were instituted for a great
variety of offences, and at last the system was brought into
general operation, and the whole ordinary criminal business,
with few exceptions was conducted by the quaestLOneS
perpetuae down to the establishment of the Imperial
government. Each court took cognizance of one class of
offences only.
Mode of trial,—A5 the quaestiOneS perpetuae were
:;tablished under different laws, the forms of procedure were
not always the same. But some general principles were applied
in all of them. Unlike the cotnitfa it was not necessary that a
magistrate should act as accuser in these courts. Any citizen
might come forward and prefer a charge before the praetor.
Every case was tried by a judge and a jury. The duty of the
judge was to preside and regulate the proceedings according to
1 aw and the duty of the jury, after hearing the pleadings and
the evidence, was to decide upon the guilt or innocence of the
accused. The number of the jury varied and was considerable;
and we find examples of 32, 50, 70, 75 and other numbers. The
presiding judge drew out the names of the jurors from the urn
(ballot-box). Each party had a right to challenge a certain
numbers and the verdict was returned by a majority of votes.
How jurors chosen.—During the last century of the
Republic, the power possessed by the judices (jury) was very
great, and was often abused for party purposes, At first the
judices were chosen only from the senators, and so was the
rule at the passing of the lex Calpurriia; then by the
Sempronian law of C. Gracchus, only from the equestrians;
afterwards, by the Servilian law, from both orders. Sylla
restored the privilege to the senators alone. By the Aurelian
law, Cotta, divided it among the senators, equestrians, and
tribunes of the treasury. Augustus increased the number of the
judices, and extended the qualification to the humbler classes
of the community. But the political importance of the office
was reduced under the Empire.
(e) Criminal jurisdiction of the Emperor and other
magistrates .—Under the Imperial government, the Emperor
exercised criminal jurisdiction in concurrence with the
senate. Frequently the Emperor presided personally in
criminal trials without consulting the senate.
By the side of the Republican courts. Augustus established
the Jurisdiction of the senate for a large class of crimes, such
as treason, and offences committed by magistrates and public
functionaries. During the first century of the Empire, some
crimes were tried by the quaestiones perpetuae, but their
powers were gradually transferred to Imperial magistrates.
Roman-19
272 Roman Law Chapter—X
The prefect of the city usurped many of the duties which

formerly belonged to the praetor and ediles. He punished all
ordinary crimes committed in the city of Rome, and within a
circuit of one hundred miles around it, having power to
banish persons from Italy, and to transport them to an island
named by the Emperor.
The praefectus vsgilum (prefect of police) who commanded
the soldiers appointed to watch the city, took cognizance of
incendiaries, thieves, vagrants, and the like, but he could only
inflict light punishments.
2. Procedure in criminal trials.—Authority to
prosecute.—Any Roman citizen could accuse another before
the praetor, if he was authorised to do so by that magistrate.
Such authority to prosecute was called postulatio, and it was
published in the forum to allow all concerned an opportunity
of objecting. At the same time the accuser gave his oath of
calumny that his proceedings were adopted in good faith and
in public interest.
Accusation.—After reasonable delay, if the accuser could
prove his charge, he made a formal declaration of the name of
the person to be impeached, and the crime which lay against
the accused. A document called inscriptio was then drawn up.
stating the name of the accused and the precise nature of the
charge. This was signed by the accuser and those who intended
to support him in conducting the prosecution.
The accused was summoned to appear before the praetor
and to hear the charge preferred against him. If he appeared
and denied his guilt, the praetor appointed a day for trial,
which was generally fixed after ten days.
Trial.—The parties appeared on the day fixed for trial. The
praetor or in his absence the presiding judge, called judex
questiones, drew out of the urn the proper number of names to
constitute the jury. Both the parties could challenge a certain
number of the jury. After the jury was sworn, the prosecution
opened the case. The accused defended himself in person or by
his counsel, and then the evidence was taken.
Verdict.—When the proof and pleadings were concluded,
the jury was called upon by the judge to give their verdict,
which was done at first openly, and afterwards by ballot.
After examining the verdict, the judge pronounced sentence,
according to the opinion of the majority, in ascertain form. If
the verdict was guilty, the praetor said. videtur fecisse; if it
was not guilty, non videtur fecisse, and if a majority was
unable to decide, he said amplius, and the cause was deferred
for a new hearing on a future day. When the criminal was
condemned, he was punished by law according to the nature of
his offence.
Such were the forms of procedure followed in trials before
the questiones perpetuae. The forms observed before the
comitia were almost the same, excepting the differences
arising from the nature of the tribunal and the mode of giving
the vote.
3. Crimes.—Crimes were divided by the Romans into
private and public.
Private crimes.—private crimes could be prosecuted only
by the party injured, and were generally punished by fines
which were paid to him. Some offences such as theft, assault
and violent robbery, were treated as civil wrongs in the same
manner as trespass, slander and various other injuries and
the penalty for such crimes was money compensation i.e.
payment in money.
Ordinary public crimes.—Ordinary public crimes were
those expressly declared to be such by some law or ordinance,
and which on account of their atrocious or hurtful character,
might be prosecuted by any member of the community.
Extraordinary public crimes.—Some crimes were called

etraordinary, when the nature of the punishment was not
274 Roman Law Chapter—X
defined by any specific law, but was left to the discretion of the
judge, e.g. violating a tomb, sheltering and abetting thieves,
etc.
4. Character of criminal system.—The criminal system
of the Romans did not atiain the same degree of maturity and
perfection as their civil law.
The classification of crimes was extremely capricious and
anomalous. Perjury was classed with cutting, wounding and
poisoning. This anomaly was resulted from the want of any
fixed principle in regard to the formation of the courts and the
laws administered by them. This classification has not only
been retained in the statutes of Sylla and Augustus, but has
also been partially retained in the corpus juris of Justinian.
The criminal laws of the Romans was framed with special
reference to their religion, their natural institutions, their
manners and habits etc. and these laws were convenient to
their situation but are wholly unsuitable to modern states.
THE END
QUESTIONS
CHAPTER-4
1. Indicate the importance of Roman law to a student of
jurisprudence,
CHAPTER-11
2. Give an account of the different classes of people in
early Rome.
3. Trace the history of Roman senate showing the rise
and decline of its power under the various eposchs of
the Roman legal history.
4. Discuss the functions of Roman senate in different
periods of Roman history.
5. Give an account Comitia centuriata.
6. Discuss the main causes of the conflict between
patricians and plebeians in Rome.
7. State the circumstances leading to the publication of
the Twelve Tables.
8. State some of the important provisions of the twelve
Tables.
9. What do you know of the law of Twelve Tables?
Explain its importance in the history of Roman law.
Is it properly described as a code?
10. What are the agencies by which law is brought into
harmony with the requirements of progressive
communities? Note the points of resemblance and
difference in this respect between Roman and
English law.
11. What do you understand by legal fiction? Give
instances from Roman law.
12. Define equity. Give a short history of Roman equity.
13. In what manner did equity improve the civil law of
Rome?
14. Compare and contrast praetorian and English
equity.
276 Roman Law
15. When, how and under what circumstances was

equity introduced into Roman law?
16. How far did Roman equity extend, and at what period
did it exhaust itself?
17. What do you know of the Assemblies during the
Republic?
18. Who were jurisconsults? In what way did they
modify the law?
19. Give an account of the development of Roman law by
means of juristic interpretation. Campare responsa
prudentium with the English case law.
20. Discuss the importance of jurisconsults under the
Roman law.
21. Sketch the history of praetor's edict and describe the
way in which it contributed to the development of
Roman law.
22. The praetor stands mid-way between the
jurisconsults and the legislature." Discuss.
23. Upon what principles, and with what leading results,
did the praetor modify and enlarge the jus civile?
24. The great bulk of Roman law and all that is most
valuable in it, is due to the jurisconsults." Explain.
25. Distinguish jus civile from jus gentium, and explain
how the latter came to be identified with the Law of
Nature.
26. What were the different ways by which legislation
was made by the Roman Emperor?
27. Give a short account of responsa prudentium and
their influence on Roman law.
28. Give an account of the different schools under
Roman law.
29. Explain the law of Citations.
30. How do you compare responsa prudentium with
English case law?
31. Trace the history of Roman jurisprudence.
Questions 277
32. Name some of the earliest attempts at codification in
Rome.
33. Give an account of Justinian's legislation and of the
sources from which it was derived. How far may it
properly be described as a code?
34. What is corpus juris civilis? What were Justinian's
service for the cause of Roman law?
35. Give an account of the legal achievements in the
reign of Justinian.
36. What do you know of Bluhme's discovery?
37. Describe the character of the principal sources of
Roman law.
38. Write short notes on :-
Curiae, Gentiles, Patrician, Plebeian, Client, Leges
regiae. Comitia curiata, Comitia centuriata, Comita
tributa, Concilium plebis, Jus civile Papirianum,
Edict, Plebiscita, Jus civile. Jus gentium, Jus
naturale. Lex, Jus, Fas, Jus Flavianum, Jus
Praetorium, Senatusconsulta, Imperial
constitutions, Codex, Digest, Pandects, Institutes,
Novels, Corpus juris civilis, Bluhme's discovery.
CHAPTER—Ill
39. Distinguish Roman public law from Roman private
law. What were the main divisions of Roman private
law?
CHAPTER—IV
40. What are the different ways in which a person would
become a slave under Roman law?
41. What was the condition of slaves in the early stages
of Roman law? How were their conditions
improved?
42. What powers could a Roman master exercise over his
slave?
43. State the principal methods of making a slave free.
278 Roman Law
44. Shortly explain the law of manumission.

45. In what ways could formal manumission be made?
Distinguish between the effects of formal and
informal manumission.
46. What were the different restrictions on
manumission? How and when were they removed?
47. State the effects of (1) Lex Aelia Sentia, (ii) Lex Fufia
Caninia, and (iii) Lex Junia Norbana.
48. Indicate the contractual capacity of a slave.
49. Discuss the liability of a slave in delict.
50. Give an account of Latini Juniani and Dediticii.
51. Explain patron' and 'freed man' and state their
mutual rights and obligations.
52. Enumerate the different classes of people at the
beginning of Empire.
53. Who were quasi-slaves?
54. In what sense and to what extent, could a slave enjoy
rights of property?
55. How slavery was determined?
56. Write short notes on :—(a) Dominica potestas, (b)
Peculium, (c) Postliminium, (d) Libertiny, (e) Latini
Juniani, (I) Dediticii.
57. Enumerate the privileges of a Roman citizen. How
citizenship could be acquired and lost?
58. What do you understand by status? Distinguish if
from caput.
59. What was meant by Capitis deminutio?
60. Briefly describe the constitution of a Roman family
as based on patria potestas.
61. What do you understand by agnatic and cognatic
relationship in Roman law? What is the utility of the
distinction?
62. What powers had a Roman father over his children?
How were they curtailed by legislation?
Questions 279
63. What do you understand by patria potestas? How was
it acquired and lost?
64. The paterfamilias had some authority over all the
members of the family, but it was exercised under
different names. Explain and elucidate.
65. "Patria potestas did not extend to the Jus publicum.
Explain.
66. Sketch the growth of the proprietary capacity of a
son in the power of his father.
67. Discuss the liability of a son in delict.
68. Discuss the points of difference between the status of
a son and that of a slave in Roman law.
69. Write short notes on Civitas, Peregrini,
Paterfamilias, Peculium, Concubjnatus and
Contubernium, DOS, Restitution in integram.
70. Describe briefly the several modes of contracting
marriage under Roman law.
71. Give a short history of the Roman law of marriage.
72. 'Usus is to coemptio what usucapio is to
mancipatio." Explain.
73. What do you understand by (a) Justiae nuptiae, (b)
Matrimonium non justum? Explain the legal
difference of these institutions.
74. What were the essentials of a valid marriage in
Roman law?
75. Describe the legal effects of marriage with manus
and without manus on the properties of the wife and
of the husband.
76. Explain DOS. Is it essential for the validity of
marriage?
How was DOS constituted and managed?
77. Describe the status of a wife in manu.
78. Distinguish between a wife in manu, and one not in
manu.
What were the practical consequences of these
distinction?
280 Roman Law
79. What do you understand by DOS, and Donatio proper

nuptias?
80. How was marriage terminated under Roman law?
81. How far was divorce sanctioned in Roman law? What
provisions were made for the custody of the children
of divorced parents?
82. Give a short history of the Roman law of
legitimation.
83. Describe the different modes of adoption in Roman
law.
84. Describe shortly the ceremony of adoption and
arrogation in Roman law.
85. What rights were conferred on the adoptee bsy
adoption?
86. What changes did Justinian introduce in the law of
adoption?
87. What was the difference between adopton and
arrogation?
88. Compare the Roman with the Hindu law of adoption.
89. Write a short note on the law of emancipation.
90. Write an essay on the law of guardianship under
Roman law.
91. Explain the difference between tutela mulierum and
tutela impuberum.
92. What were the different kinds of tutors recognised in
Roman Law?
93. What were the functions of a tutor? Who could be a
tutor?
Who were exempted from tutela/ How was a pupil
protected against improper conduct of his tutor?
94. In what different ways could tutelage be dissolved
under Roman Law.
95. Who were curators? In what cases were they
appointed?
What were their duties?
Questions 281
96. Distinguish between a tutor and a curator.
97. Compare the office of a Roman tutor with that of an
English trustee or guardian?
98. What were the rights and liabilities of a minor in
Roman Law?
CHAPTER—V
99. What were the principal divisions of the different
kinds of res in Roman Law?
100. Distinguish between res mancipi and res nec
mancipi. What is mancipatio?
101. What are the rights enjoyed by an owner of a
property under Roman Law? Distinguish quiritary
from bonitary ownership.
102. Give an account of the Roman law of possession.
103. Under what conditions could a Roman become owner
of property by occupatio?
104. What is treasure trove? How could it be acquired
under Roman Law?
105. What things were res nullius? How could the
ownership of them be acquired?
106. Discuss the rights of a riparian owner in Roman
Law,
107. Describe the different ways by which property might
be acquired by accessio.
108. Upon what principle was the ownership settled of an
island formed in a river by accretion in mid-stream,
and by a change in the course of the river?
109. What were the rights of the parties (i) If A builds
with ifs materials on A's land? (ii) If A builds with
A's materials on B's land?
110. Did the doctrine of principal and accessory apply in
the case of books and pictures?
111. Explain confusio and commixtio.
112. Give an account of specificatio, and distinguish it
from confusio and commixtjo.
282 Roman Law
113. In what warious ways could traditio be effected?

114. Distinguish between usucapio and prescriptio.
115. What were the necessary conditions for the
acquisition of ownership by usucapio? What changes
in the law were made by Justinian?
116. Distinguish between positive and negative
prescription?
What was the practical importance of the
distinction?
117. Give an account of donatio.
118. What is a servitude? How are servitude classified in
Roman law?
119. Give an account of the principal jura in re aliena.
120. What is meant by saying that servitudes must be
perpetual, that they are indivisible and that there
cannot be servitude of the servitude?
121. Distinguish between (i) positive and negative, and (ii)
rural and urban servitudes.
122. Define praedial servitude, and explain praedium
dominans and praedium serviens.
123. Distinguish between praedial and personal
servitudes. To what extent do they correspond in
English law?
124. What were the principal praedial servitudes? How
were such rights created and extinguished?
125. Explain usufruct and distinguish it from quasi-
usufruct.
126. Distinguish usufruct from usus and emphytensis.
127. Explain usufruct, usus, habitatio and operae
servorum.
128. How usufruct was created and extinguished?
129. What were the rights and duties of a usufructuary.
130. How were servitudes created and extinguished?
Questions 283
131. Explain emphyteusis. What do you know of the
development of the tenure called emphyteusis? What
controversy as to its juridical place existed and how
was it removed?
132. What were the mutual rights and duties of the
emphyteuta?
133. How could emphyteusis be created and extinguished?
134. What were the earliest forms of mortages in Roman
law and what were its defects?
135. Distinguish between pignus, and hypotheca. How
were they introduced, and in what way did they
improve the Roman law of mortgages?
136. What was the power of sale exercised by the
mortgagee?
137. By what rules was the right of priority determined
when the same thing was mortgaged to more than
one person?
138. In what cases was a mortgage implied without
special agreement?
139. Write short notes on Res mancipi, Res extra
patrimonium, Res nullius, Occupatio, Accessio,
Specificatio, Fructum perceptio, Traditfo, Confusio
and Commixtio, Mancipatio, in jure cessio,
Usucapio, Prescriptio, Donatio, Donatio mortis
causa, Adj udicatio, Usufruct, Quasi-usufruct, Usus,
Praedial servitude, Emphyteusis, Superficies,
Fiducia, Pignus, Hypotheca, Tacita hypotheca.
CHAPTER—Ill
140. Explain universal succession and damnosa
hereditas. What improvement was brought about in
heir's position by Justinian?
141. Distinguish Roman heir from an English executor.
142. What were the different kinds of heirs? What means
were open to an heir to escape from the burden of an
unprofitable inheritance?
284 Roman Law
143. "The horror of intestacy led the Romans to dispose of

property by means of testament." Explain.
144. What were the essential elements in a Roman will?
Give short description of each of them.
145. Give a short history of the "pedigree of wills" in
Roman law.
146. Describe the nature of a mancipatory testament, and
note the points in which it differed from a modern
will.
147. Explain the importance in the Roman law of wills of
the institution of an heir. What was the consequence
of failing to institute or disinherit descendents?
148. Explain and distinguish the different kinds of
substitutio.
149. Explain the meaning of Testamenti factio.
150. What were the limitations of testamentary power of
a Roman testator? Explain.
151. Explain and distinguish between the following
Legitim, Falcidian fourth, Pegasian fourth.
152. What do you know of lex Falcidia? Give the rules for
its application.
153. How a will becomes invalid under the Roman law?
154. Explain the circumstances in which a will originally
valid might fail to take effect.
155. In what different ways could a Roman will be
revoked and annulled?
156. Explain the nature and effect of querela inofficiosi
testament. In Justinian's law to whom was this
remedy available and in what circumstances?
157. Explain the nature of codicil.
158. What were "the snares and pitfalls of the
testamentum'?
How and when were they avoided?
159. Give a short history of the Roman law of legacies.
Questions 285
160. How were legacies classified in the time of Gaius?

What changes did Justinian make in the law of
legacies?
161. How a legacy could be given?
162. What could be given as a legacy?
163. Is there any restriction upon the amount of legacy?
How a legacy could be lapsed?
164. Explain the nature of a fidei-commissa and its
practical application.
165. State shortly the effect of senatusconsultum
Trebellianum and senatusconsultum Pegasianum.
166. Summarise the difference between legacies and
fideicommissa of particular things. Did any
difference between them exist in the time of
Justinian?
167. Write short note on: (a) Universal succession, (b) Sui
heredes, (c) Extranei heredes, (d) Testamenti factio,
(e) Falcidian portion or quarta Falcidia, (I) Legitim
or Legitima portio, (g) Querela inofficiosi testamenti,
(h) Condicil and (i) Legacy.
168. Give a short sketch of the rules of intestate
succession.
169. What were the rules of intestate succession as fixed
by the Twelve Tables? Point out its defects.
170. State briefly the changes introduced by Justinian
into the law of Intestate succession.
171. What is meant by Bonorum possessio? To what
classes of persons was it given?
172. Give the provisions of Sc. Tertullianum and, Sc.
Orfitianum.
CHAPTER—VU
173. Define obligation. Discuss the different sources of
obligation under Roman Law.
174. What are the essentials of a valid contract in Roman
law?
286 Roman Law
175. Classify the different varieties of contract.

176. Classify Contract.'
177. Explain the nature of the Roman contract of
stipulatio, What was its peculiar importance?
178. Give a short account of literal contract in Roman
law.
179. Estimate the importance of the Roman consensual
contracts in the history of the law of contract.
180. Describe the contract of mutuum.
181. Define commodatum. Under what circumstances
was the borrower bound to make good the loss of the
thing borrowed?
182. Distinguish between mutuum and cornmodatum.
183. What is depositum? When was a deposit said to be
miserabile? What was the liability of depositee for
misconduct or negligence?
184. Indicate as briefly as you can the essential features
of the Roman contract of emptio venditio.
185. What are the essential elements of sale? How was a
verbal contract of sale affected by giving earnest
money?
186. State the duties of the vendor and the vendee in
Roman law.
187. Explain the nature of the contract "locatio
conductio' indicating briefly the different purposes
for which this contract was used.
188. Describe the rights and liabilities of a tenant in the
case of ordinary letting on hire.
189. Shortly discuss the nature and the principles of the
Roman contract of Societas.
190. Enumerate and distinguish the several kinds of
partnership.
191. How partnership was dissolved?
192. distinguish between the Roman law of partnership
and modern law. What were the rights and duties of a
partner?
Questions 287
193. Enumerate the principal classes of mandatum.
194. State the powers and duties of a mandatarius. How
did mandate terminate?
195. What is a quasi-contract? Shortly explain the
principal quasi-contracts in Roman law.
196. How were obligations determined in Roman law?
197. What are the different kinds of delict in Roman law?
198. Define theft. Who could bring action for theft?
Distinguish between furtum manifestum and furtum
nec manifestum.
199. Distinguish injuria from damnum injuria datum.
200. State the provisions of Chapters I & III of the lex
Aquilia. Show how the original scope of lex Aquilia
was extended by the jurists and the praetors?
201. What is a quasi-delict? Give examples.
202. What causes of liability are included under the head
of quasi-delict? How delicts are discharged under
Roman law?
203. Write short notes on : Nexum, Mutuum, Sc.
Macidonianum, Commodaturn, Depositum, Pignus,
Stipulatio, Fidejussio, Emptio venditio, Locatio
conductio, Societas, Mandatum, Arra, Periculum rei,
Quasi-contract, Negotiorum gestio, Jettison,
Acceptilatio, Novation, Merger, Delict, Furtum,
Rapina. Damnum injuria datum.
CHAPTER—V111[
204. Give an account of the judicial system during the
Republic pointing out its defects.
205. Summarise the judicial system under the Empire.
206. Explain the functions of the Judex, Arbiter,
Centumviri, Recuperatores.
CHAPTER-1X
207. Describe briefly the character of the three systems
of procedure known to the Romans.
Roman-20
288 Roman Law
208. What were legis actiones? What were their defects?

209. give a brief sketch of the history of summons under
Roman law.
210. Give an account of Actio Sacramenti.
211. How was the formulary system introduced?
212. Write a note on equitable defence in Roman law.
213. Describe the nature of changes effected in the
Roman law of procedure by the introduction of the
formulary and the extraordinary system.
214. Was appeal allowed in civil cases (i) under the
Republic, and (ii) under the Empire?
215. Explain litis contestatio and its effects.
216. Give a short account of interdict.
217.. Give historical sketch of the law of execution in
Roman law.
218. Write short notes on:
Actio sacramenti, Judicts postulatio, Condictio,
Manus injectio, Pignoris capio, Demonstatio,
Intentio, Condemnatio, Adjudicatio, Exceptio,
Replicatio, Litis contestatio, Interdict.
CHAPTER—X
219. Give an account of the criminal jurisdiction of the
(a) Kings (b) Consuls, (c) Senate, (d) Comitia, (e)
Commissioners, (I) Emperors and (g) Magistrates.
220. Summarise the procedure in criminal trials.
ENDEX
Page Page
Acceptialatio 189 Ascendants 160
Accessio 105 Auctoritas 91
Accretion among heirs 138 Augustus 37
Accretion among legatees 151 Avulsio 105, 106
Accusatio suspecti 92 Bastars, legitimation of 80
Acquisition, modes of civil Beenefit of inventory 51, 130
natural 104 Bequest (see legacy) 50
Action— 216 Bluhme's discovery 48
arbitrariae 217 Bona fide possessor 108
bonae fidei 217 Bonitary ownership 50, 11
civil 217 Bonorum possessio 156
limitation 218 Calcis coquendae 118
mixed 216 Capitis deminutio 64
penal 216 Caput 64
personal 216 Castrense 69
praetorian 217 Causa 167
real 217 Censors 27
strieti juris 217 Centumvjral court 202
Actus 118 Cessio bonorum 221
Adjudicatio 116 Cessio injure 110
Adoptio 81 Citation 42
Agency 183 Civitas 63
Agnate 67,156 Clients 8, 61
Agnation 67 Codex 46
Alienijuris 65 Codicil 146
Alluvio 105 Codification 45, 46
Altius non tolendi 119 Coemptio 74
Alveus derelictus 105 Cognates 67
Appeals 119 Collaterals 159
Aquae ductus 118 Collatio bonorum 158
Aquae haustus 118 Coloni 62
Aquilian law 193 Comitia centuriata 31
Arbiter 202 Comitia curiata 10
Aria 176 Cimitia tributa 32
Arrogation 83 Commixtio 107
290 Roman Law
Page Page
Commodatum 169 Delict 191
Concilium plebis 32 Demonstratio 210
Concubinage 72 Depositum 169
Condemnatio 210 Derelictus 105
Condictio 208 Descendants 159
Condictio indebiti solutio 187 Destitutum 145
Confarretio 74 Detentio 103
Confusio 107 Dictator 13
Connubi 63 Digest of Justinian 47
Consanguinity 159 Discharge, extinction of
obligation 187
Consensual contracts 175 Discharge of delict 198
Consul 13 Disinherison 137
Contracts 165 Division of Roman law 52
consensual contract 175 Divorce 79
different classes of 167 Dominica potestas 55
essential elements of 166 Dom i nium 100
innominate contract 168 Donatio 114
literal contract 174 Donatio proper nuptias 78
nominate contract 168 Dos 77
real contract 167 Duplicatio 212
verbal contract 171 Edicts 1, 28
Contubernium 72 Edictum 40
Convention 165 Ediles 14
Corpus juris civilis Emancipation 86
Crimes— 48 Emphyteusis 124
extraordinary 227 Empire 37
private 227 Emptio venditio 175
public 227 Epistola 41
Criminal courts 222 Equity 23
Curator 94 Exception 211
Curiae 6 Excuses for tutela and cura 92
Custody of children 80 Execution of decree 220
Damnationem 147 Expensilatio 174
Decemvirs 18, 19 Extinciton of obligation 188
Decretum 40 Extraordinary system 213
Dediticii 60, 163 Falcidian portion or fourth 142
INDEX 291
Page Page
Falsa demostratio 150 Injure cessio 110
Familiae 65 Injuria 196
Familiae emptor 135 Innominate contract 168
Fas 33 Institute ofjustinian 48
Fiction 22 Institution of heirs 138
Fidei-commissa 153 Insula nata 105
Fidejussio 173 Intentio 210
Fiducia 126 Intercessio 10
Filiusfamilias 164 Interdict 218
Fiscus (treasury) 163 Interest of money 169
Foreclosure 128 Interrex 9
foreigners 63 Intestate succession 155
Formula 210 Invalidation of wills 145
Formulary system 209 Inventory 51
Freeborn 60 Irritum 145
Freedmen 60 Itralicum (land in Italy) 98
Fructuum perceptio 108 Iter 118
Fungibles 99 Jettison 187
Furtum 191 Judex 201
Genties 6 Judicial system 200
Gentiles 6, 156 Judicis postulatio 207
Gift (see donatio) Judgement & execution 219
Guardianship 88 Jura in re aliena 116
Habitatjo 122 Jurisconsult 25
Heredes 131 Jurisprudence 43
Hereditas 130 Jurist 25
Hiring 177 Jury 225
History of Roman Law 5 Jus 33
History of testament 134 Jus Abutendi 100
Honorarium 29 Jus Aclianum 26
Husband and wife 159 Jus civile 34
Hypotheca 127 Jus commercii 63
Imperial constitutions 40 Jus dispondcridi 100
Imperium in imperio 65 Jus edicendi 28
inaedificatio 105 Jus Fiavianum 25
Indebiti solutio 187 Jus fruendi 100
Ingenui 60 Jus gentium 28
292 Roman Law
Page Page
Jus honorarium 29 Julia de adulteriis 77
Jus liberorum 94 Julia et Papia Poppaea 94
Jus Naturale 35 Julia et Titia 90
Jus Papirianum 9 Junia Norbana 59
Jus praetorianum 29 Ogulnia 21
Jus quiritum 101 Petronia 55
Jus suffragii 63 Poetelia 220
Justae nuptiae 71 Rhodia de Jactu 187
Justinian's reform 49 Libertini 60
King 5, 8 Libripens 110
Latini Juniani 60 Licinian Rogation 20,21
Latins 64 Limitation of testamentary
power 141
Law of citations 42 Literal contract 174
Laws of Twelve Tables 18 Litis contestatio 215
Lease 125 Locatio conductio 177
Legacy 146 Mancipatio 110
Legal fiction 22 Mancipatory will 134
Lege 115 Mancipi causa 87
Leges regiae 9 Mandate (agency) 183
Legis actiones 206 Mandatum 40
Legislation 24 Manumission 58
Legislative Assembly I0 Manus 72
Legitim 142 Manus injectio 208
Legitima portio 143 Marriage 71
Legitimation 80 Modes of acquistition 104
Letting and hiring 177 Mortis causa 114
Lex 33 Mutu u iii 168
Lex Aebutia 209 Negotioruni gestio 186
Aelia Sentia 59 Ne ]uminibus officiatur 119
Aquilia 193 Nexuni 165
Canuleia 20 Novation 189
Cincia 115 Novels of Justinian 48
Cornelia de sicariis 56 Noxal debts (Law of debt) 15
Falcidia 142 Nuda Pacts 165
Fufia caninia 59 Nucupative wills 136
Hirtensia 21 Nuptiae 71
INDEX 293
Page Page
Obligation 165 Proculians 41
Occupatio 104 Property, modes of acquiring 104
Oneris ferendi 119 Prosecutor 226
Operae servorum 122 Quaestiones perpetuae 225
Opens locatio 179 Quanta falcidia 142
Oratio 40 Quasi contract 185
Ownership 100 Quasi delict 197
Pact 165 Quasi pupilary substitution 140
Pandects 47 Quasi slave 62
Paraphema 78 Querela inofficiosi testamenti 143
Partnership 180 Quiritary ownership 51, 101
Pascendi pecoris 118 Quritium 101
Paterfamilias 65 Quorum bonorum 219
Patria potestas 68, 71 Rapina 193
Patrician 7, 15 Real action 216
Patron 61 Real contract 167
Pecoris ad aquam appulsus 118 Recuperatores 202
Peculium 56, 69 Release 188
Pereculum eri 177 Remarriage after dissolution 80
Peregrini 63 Replication 212
Person 54 Republic 13
Pictura 106 Res 98
Pignoris capio 209 kinds of 98
Pignus 127 Rescripts of the Emperor 40
Plantatio 106 Responsa prudentium 42
Plebeians 7, 15 Restitutio in integrum 97
Plebiscita 21, 33 Revocation of legacies 153
Pledge 126 Rhodia dejactu 187
Ponitifex maximus 9, 25 Roman people 5
Pontiff 25 Ruptum 145
Possession 102 Rural servitude 118
Praedial servitude 117 Sabinians and Proculians 41
Praedium dominans 118 Sacramenti 206
Praedium serviens 118 Sacramentum 207
Praetor 27 Sale 175
Prescniptio 50, 12 Schools of Law 41
Procedure 206 Senate 9, 15
294 Roman Law
Page Page
Senatusconsulta 39 Tigni immitendi 119
Largianum 163 Traditio 50, 109
Macidonianum 168 Treasure trove 105
Orfititiarium 76, 159 Trials, criminal 227
Pegastianum 154 Tribune 16
Tertullianum 159 Triplicatio 212
Velleianum 174 Trust 153
Servi (see slavery) Tutela impuberum 88
servi poenae 54 Tutela mulicrum 93
Servitude 117 Tutors 88
Servius Tullius 11 Twelve Tables 18
Sinendi modo 148 Unde cognati 158
Slave 8,54-60 Unde legitimi 158
Slavery 54-60 Unde liberi 158
Societas 180 Universal succession 130
Solum provinciale 101 Universitas 130
Solutio 188 Urban servitude 119
Sources of Roman law 51 Usucapio 50, 112
Specificatio 107 Usus 74, 122
Statu liber 62 Usufruct 120
Stillicidi 119 Usurpatio 113
Stipulation 171 Uxor 158
Struggle between 15 Value of Roman law 01
patricians & plebeians Verbal contract 171
Substitution 139 Verdicts 227
Succession 130 Via 118
Sui heredes 155 Vinculumjuris 165
Sui juris 65 Vindicationem 147
Summons 207 Viretuxor 158
Superficies 125 Voting 11
Superiority of Romans 01 Vutum 171
Suretyship 173 Ward 90
Testamentary succession 131 Western Empire 38
Testamenti factio 140 Wills 133
Theodosian code 45 Zeno 124
CHAPTER—V
THE LAW OF THINGS
1. Res :—In Roman law res signifies things or property. It
includes not merely physical things but also abstract rights
such as servitude and dominium. Buckland defined res in
economic sense as any economic interest guaranteed by law,
any right or rights having a money value, any interest
expressible in terms of money which the law will protect. In
general res comprehends everything that can be the object of a
right.
2. Classification of res :—Res have been classified in the
following ways :-
(1) Res corporales and res fncorporales.—Res corporales
are tangible objects that can be felt or touched; such things
have a physical existence, (e.g. land, house, gold, money,
slave, wheat, etc.) and can be possessed and delivered. Res
incorporates are those things which are intangible and have
no actual existence. They cannot be touched or perceived by
the senses and exist only in the eye of law. They consist of
rights such as (a) servitude e.g. a mans right to walk on the
land of another, (b) hereditas e. g. the right of inheritance, (c)
obligation e.g. a man's duty to perform some promise which
the law regards as binding, or to make compensation for some
wrong he has done to another. Incorporeal things do not
admit of possession or delivery.
(2) Res mancipi and res nec mancipi,—The real distinction
between the two lay in the mode of transfer. Res mancipi were
those things which could only be legally conveyed by the
ceremony of mancipatio. If it was conveyed in any other way,
no title passed to the transferee. The property in the thing, the
ownership of it remained in the transferor, notwithstanding
his attempted alienation and although he had actually
handed it over to another. Lands and houses in Italy, slaves,
oxen, mules, horses, asses, rustic servitude were designated as
res manc(pi. All other res were res nec mancipi which could be
Chapter—V The Law of Things 119
transferred by traditio or delivery of possession, provided the
res in question was capable of physical delivery. After the
time of Gaius mancipatto gradually lost its importance and
in the time of Justinian mancipatio was entirely superseded
by traditfo and the division into res mancipi and res nec
mancipi was accordingly obsolete.
(3) Res mobiles (movable) and res immobiles
(immovable).—This division is found in most systems of law
and is based upon the fundamental distinction which exists
between land and things attached to it (res immobiles), and all
other property (res mobiles). Res mobiles in its nature are not
stationary and as such can be appropriated and taken away
and so it can be owned absolutely, but the land cannot be so
owned. An immovable property cannot be taken away and
stolen. It is of greater value and importance than the movable
property. It takes longer time to acquire ownership in
immovable property by possession without title.
(4) Res extra patrtmonium (or res extra commercfttm) and
res in patrimonio (or res in commercio), —A res extra
patrimonium is a thing which is incapable of being owned by
a private person but the use of it is common to all, whereas a
res in patrimonto can be so owned by a private person. There
are four classes of res extra patrimoriium, viz.—
(a) Res communes (common) are things common to all
and may be enjoyed by all the world but not capable of
appropriation by any body, such as air, running water, the
sea, and the sea-shore.
(b) Res publlcae (public) are the property of the state, such
as public roads, harbours, rivers, the banks of the river.
(c) Res universitatis (corporation property) are the
property of a corporation, e.g. a theatre, stadium in some
Roman city.
(d) Res rtullius are things which belong to nobody e.g. wild
animals, treasure trove, things abandoned, etc, but it may be
the object of private property when found and occupied by an
individual. Res nuWus include not merely humanijuris but
120 Roman Law Chapter—V
also res divinijurts (sacred or religious). Res divirifjurfs were
the following
(i) Res sacrae are things dedicated to the gods above, e.g.
temple, church and their contents.
(ii) Res retigiosae are things dedicated to the gods below,
e.g. burial ground.
(iii) Res sanctae are things which are specially protected
by gods, such as the gates and walls of the city.
(5) Resfungibles and res non fung(bles.—Resfungibles are
things which are dealt with by weight, number or measure
such as money, silver, gold, oil, wine and grain which are
usually regarded collectively, whereas res non fungibles are
things such as horse or piece of land which are regarded as
individual units. The division is of minor importance. One
instance of its application is that there could not be a loan for
consumption (mutuum) of res non fungibles.
The following table will indicate the classification of res
under the Roman law :-
I RES I
Corporaic lncorporalc
1
1.
Mobiles Imniobjics Scrviiudc Inheritance Obligation
Maneipi Nee mancipi Fungibles Commcrcium Extra-Cummercium

1
Huinani juris Divini juris
Communes Publicac Universitatis Res-Nullius

(Common) (Public) (Corporation Property) (No Body's Property)
1
Saci-ac Religiosac Sanctae

(Sacred) Religious) (Sanctified)
3. Dominium (ownership):—Ownership constitutes a

bundle of rights by virtue of which a person may enjoy all the
advantages that an object may bestow and such rights are
available against the world at large. According to the Roman
jurists the advantages may be grouped under the following
heads :—(1) Jus utendi (uses) i.e. the right of using the thing in
every possible way. (2) Jus fruendi (fructus) i.e. the right of
enjoying the fruits or the produce of a thing. (3) Jus abutendi
(abuses), i.e. the right of waste. (4) Jus disportdendii.e the right
of alienating the thing. In other words ownership is a right to
the absolute use, enjoyment, and disposal of a thing, without
any restraint, except what is imposed on the owner by law.
Thus the unlimited proprietor of a house may use it as a place
of residence, or let it to another or dispose of it by sale, or gift,
or even destroy it, if he chooses to do so. But the right of the
owner must not be abused and the fact of ownership will not
justify the owner to enjoy his property to the injury or
detriment of another.
Originally the Roman civil law recognised only one kind
of ownership which was known as dominium ex jure
quiritium (quiritarg ownership). It was confined to the
Roman citizens and could be acquired by a proper method of
conveyance, e.g. res mancipi could be acquired by maricipatio
or injure cessio. The owner could assert his title against
anyone by an action called a vindicatio.
Provincial lands (solum provinciale) were not susceptible

of quü-itary ownership. No private person could be the owner
of provincial lands, for it belonged in theory to the emperor or
the Roman people as a whole. The praetor could not confer
ownership in such land in violation of the ju.s civile but he
protected by equitable actions the possession of provincial
lands whether in the hands of a citizen or a foreigner. He also
protected the possession by a foreigner of any sort of property
which they could not own. Such protection of possession
given by the praetor was called 'dominium exjure gentium' as
it was derived from the jus gentium as distinguished from

dorninium ex jure quirit(um.
The praetor introduced another species of ownership
known as bonitary ownership. A person acquiring a res
mancipi by tranditio obtained no title at all at the civil law.
Therefore if the property got out of his possession he could not
sue for its recovery for the dominium ex jure quiritium
remained, inspite of the transfer, in the original owner. If the
transfer rested on bonafides and there was ajlLsta causa, the
transferee would by keeping undisturbed possession for the
required time become quiritary owner by usucapio. But in the
meantime the praetor helped him and gave him all the rights
and remedies which were available to a civil law owner. If the
original owner sued for the recovery of the object, the practor
allowed the transferee, if there was justa causa for the
transfer, to plead an exceptio and so defeated the civil law
owner. The ownership of the original owner under such
circumstances was known as 'nudum jus quiritium' as
opposed to equitable or bonitary ownership of the transferee.
Further the praetor granted the transferee, even before the
period of usucapio was complete, the actio publiciana in rem,
by means of which he could sue third persons into whose
hands the property had passed. When this development of the
jus honorarium (equity) was complete the cumbrous
proceedings of mancipatio and injure cessio had fallen into
disuse and Justinian removed the distinction between the
quiritary and boriitary ownership. The quiritary ownership
was merged into the equitable principle of bonitary
ownership. In his time all lands were practically provincial
lands (solum provinciale) and every free subject of the
Emprire was a citizen. Hence there was only one kind of
ownership for every body and for every kind of property.
4. Possession :—The ownership and possession may be

vested in the same person. In such cases the owner has the
right to possess. If he is in actual enjoyment of his property he
has the actual possession of it as well. But if the actual

possession remains with another, the ownership and
possession are separated. Thus the lessee (emphyteuta) is in
possession without ownership and his possession may be
protected as ownership.
Possession is evidence of ownership. The possessor of a
thing is presumed to be the owner of it and may put all other
claimants to prove their title. Long possession is a sufficient
title to property which originally belonged to another. The
transfer of possession is one of the methods of transferring
ownership. The first possession of a thing belonged to none
confers a good title of right. A person who has obtained
possession by fair and justifiable means is entitled to
continue it, till the question of ownership is finally settled. If
he has been dispossessed by force or stealth, he has a right to
be restored to possession without waiting for the decision of
the cause. In respect of poroperty wrongfully owned, the
wrongful possession of it is a good title for the wrongdoer
against all the world except the true owner.
According to Jharings, possession is the objective
realisation of ownership and de facto exercise of a claim:
ownership is the de jure recognition of one. The law of
usucap(o and prescriptio determine the process by which
possession without title ripens into ownership and ownership
without possession withers away and dies.
Possession involves two elements; one of which is animus
(mental or subjective) and the other is corpus (physical or
objective). The animus consists in the intention of the
possessor to exclude others from interfering the use of the
thing. Mere possession without the intention to claim
possession over it is ineffectual. Thus a person does not
possess a field because he is walking over it unless he has the
intention of excluding others from the use of it. The corpus
consists in actual control of the thing i.e. to obtain and retain
possession. Possession is acquired whenever the two elements
corpus and animus come into co-existence.
Roman law distinguishes detentio and possession. In

detentio the right of the possessor is limited by the
outstanding right of the owner which the possessor admits.
The transferees interest would not be protected by an
interdict. Thus a person who received a thing on loan for use
(commodatum), on deposit (depositum), on hire (locatto
conductio) or by way of usufruct, had only detentio and the
transferor was regarded to be in possession through them. The
possession of the transferor was protected by interdict.
Possession may be taken either upon a good or a bad title. In
this respect the law distinguishes between a bona fide
possessor and a malafide possessor. A bonaflcle possessor is
he who possesses another's property in the honest belief that
he has a right to it, and a mala fide possessor. is he who
possesses another's property knowing that he has no right to
it. A bonafide possessor is entitled to the fruits, so long as he
has reason to think that he has a good title. When the true
owner brings an action to recover his property, the bonajide
possessor is bound to restore the property together with such
fruits as are in being at the moment the action is brought, not
those which he has gathered in good faith. A mala jide
possessor is obliged to restore all the fruits from the time he
entered into possession whether consumed or not.
In early Roman law only ownership was protected and not
possession. This led to great hardship and to avoid the
difficulty the praetor granted possessory interdicts to those
who could not acquire quiritary ownership. The effect of this
interdictal possession was that the possessor had all the
advantages of a real owner. In the Imperial period when the
civil law was merged in the equitable principles of jus
gentium the interdictal possession lost its importance.
5. Modes of acquiring ownership of res singulae :-
There were two modes of acquring ownership of single item of
tangible property, viz.,
(A) Natural mode.
(B) Civil mode.
(A) Natural mode :—A natural mode is sometines called

an original mode in the sense that property is acquired for the
first time in a thing which was without an owner. All natural
modes are not, however, original modes. The following are the
examples of natural mode of acquisition of ownership :-
(1) Occupatto.
(2) Access to.
(3) Specficatto.
(4) P'ructuum perceptto.
(5) Traditlo.
(1) Occupatio.—Occupatio is taking possession, with an
intention to become an owner, of something which at the
moment belongs to nobody. It may be either res nulitus
(ownerless thing) e.g. a lion in the forest or res derelicta.
Things wilfully abandoned by the former owner are called
derelicta, e.g. where a man throws away his old shoe. In the
case of res derelicta there must be an internation to abandon
on the part of the previous owner. Hence a person who
appropriates things thrown overboard in a storm to lighten
the ship, or accidentally dropped from a carriage is guilty of
theft. Occupation differs according to the different classes of
things. The things to which the principle of occupatio applies
fall under the following heads :-
(i) The capture of wild animals.—Here the animal must
be actually captured and it belongs to the person who
catches it. An injured or wounded animal belongs to
the person who catches it and not to him who
wounds it. It is not enough to wound it for
acquisition of ownership; if it escapes it becomes res
riullius again. The animal must be wild by nature,
such as a beast in the forest, bees, peacocks, pigeons
and deer, but not fowls and geese. Wild animals in
the enclosure belongs to the owner of the enclosure,
e.g. rabbits in a warren but so long as they are there,
they belong to the owner of the warren but once they
regain their liberty they can be acquired by

occupatio. The domestic animals viz., horses, sheep,
peacocks, pigeons, deer etc., remain the property of
the owner, though they are strayed and not confined.
The rule is that mere temporary absence does not
destroy ownership so long as they have the intention
to return.
(ii) Prize of war—Things taken from the enemy are left
to the disposal of the state.
(iii) Precious stones and other treasure trove, (hidden
treasure) found on the sea shore become the property
of the finder.
(iv) 'Ins ula nata'.—If an island is formed in the sea it is
considered a res nullius and it belongs to the first
occupant.
(2) Accessior :—Accessio is where a thing becomes the
property of man by accruing or adding or uniting to
something which is already owned by him. The property so
gained may have been previously either a res nullius, or a res
allena (thing belongs to another). Accession is of three kinds:
(a) of land to land, (b) of movable to land, (c) of movable to
movable.
(a) Accessio of land to land.—Accession of land to land
arises from the action of streams and rivers, e.g.
(i) Alluvto.—When land is gradually gained from the sea
or the river by imperceptible deposit of sand or
earth, the land so gained or added becomes the
property of owner of the land by accessto.
(ii) 'Insula nata'—Where an island is formed in the
middle of the river, it belongs to the owner of the
land on the banks in proportion to their interest
along the banks. If it is nearer to one side than
another the island belongs to the owner of the nearer
bank.
(iii) Alveus derelictus.—If a river forsakes its old course

and flows in another direction, the old bed of the
river belongs to the owner of the banks in proportion
to their interests along the banks.
(iv) Avulsio.—When land of one person is swept away by
the violence of the stream and united to the land of
another, the case is avulso. It does not at once cease
to belong to the former owner, but it will cease to be
his property when the trees will take roots in the
land of another to which it is attached.
(b) Accession of movable to land.—Movables accede to land
in the following cases :—viz.,
(1) InaedUIcatio.—Of this there are two main instances
(i) A with B's materials builds a house upon his own
ground. Thereupon on the principle of "superflcies
solo cetht" (accessory follows the principal) A
becomes the owner of the building, and so long as the
building stands B can not claim his materials. But B
is not without remedy. He can recover double
damages from A, and when the building is destroyed
he can claim the materials if he has not already
obtained damages.
(ii) A builds a house with his own materials upon B's
ground. On the principles of "superJicies solo cedit,"
B becomes owner of the house by accessio. If A knows
that the land belongs to B when he builds, he has no
remedy. He must be taken to have made B a present.
If, however, he builds in the honest belief that the
land belongs to him and is still in possession, B can
not compel him to give up possession without
making compensation.
(2) Plantatio and satio (sowing).—If a plants B's tree in his
own ground, or if A plants his own tree in B's ground, then, as
soon as the tree takes root, it belongs to the owner of the
ground. Similarly grains of wheat sown in land belong to the
Roman-10
owner of the land. But in either case if the owner of the land is
out of possession and seeking to recover it from a bona fide
possessor, he can be defeated by the exceptio dolt mall unless
he makes compensation.
(c) Accession of movable to movable.—The following are
the instances of such an accession.—
(I) Scriptura.—A writes a poem or a treatise upon B's
paper. The whole belongs to B. But if the paper is in
As possession and B brings an action to recover it
and refuses to pay the cost of writing, he can be
defeated by the exceptto dolt, provided A got
possession of the paper innocently.
(ii) Ptctura.—A paints a picture upon B's tablet. The
picture is here considered the principal thing and the
tablet the accessory, and so the result belongs to A.
But if B is in possession, A must pay compensation
for the tablet, or be defeated by the exceptto doll. If A
is in possession, B may bring an actto uttlis for the
tablet, but must be prepared to pay for the picture, or
himself defeated by the except to.
(iii) A weaves B's purple into his own garment. The
product belongs to A. But if the purple is stolen from
B, the latter has the acttofurit.
(iv) Confusto and cornmixtio.—Wh e re materials whether
of the same kind of solids as lumps of gold or of
different kinds of liquids as wine and honey are
mixed together in such a way that they loose their
individual characteristics, the result is turned
confuslo or a chemical compound. When such a
mixture is made by consent of the owners or by
chance, the mixture is the common property of the
owners of the materials. When the mixture is made
by the act of one of the parties, the mixture,
according to the commentators, belongs to the
person who makes the mixture. Whenever the
owners of the materials are deprived of any share in

the new product they have to be compensated for the
loss they sustain.
Where the different materials are mixed together but they
can be separated even after the mixture, the process of mixing
is called commixto—a mechanical mixture e.g. when grains
of wheat are mixed with grains of barley. In this case the
mixture becomes the common property of both, if the mixture
has taken place by consent of the parties. If the mixture is
made by accident each can claim his original property (not
the mixture) by a real action. But the judge has a discretion to
decide how the separation is to be made in case there is
difficulty in ascertaining the identity of various properties.
(3) Specificatio :—When a new thing was made by one man
by skill and labour from raw materials belonging to another,
it was called .spec Uicato e.g., flour from corn, wine from
grapes, sugar from sugar-cane, ornaments from gold etc. When
the labour and materials did not come from one and the same
person, the question of ownership was unsettled. There was a
dispute in this respect between the two schools. The Sabines
held that the raw materials were the thing to be considered
and that the owner of the materials was the owner of the
finished product. The Proculians were of opinion that the
maker acquired it by occupato. The controversy was finally
settled as follows :—If any part of the materials employed
belonged to the workman, the workman was the owner of the
new article. If not, the question' was whether the article could
be reduced to its former raw materials. If it could be reduced or
resolved to its original state, the owner of the materials was
the owner of the new thing but he must pay for the labour and
skill. If on the other hand, such reconversion was impossible
as in the case of sugar, wine, flour, then the new thing
belonged to the maker, but he must pay for the materials.
(4) Fructuum perceptio :—It means the gathering or taking
the fruit of things. The owner of land or animals gets their
fruit or offspring as dornnus (owner). Not only the owner but

also persons having limited interests (e.g. for a term of years)
acquire the fruits of the property by actual gathering
(percept(o). The examples of persons who acquire by this title
are the lessee, the life tenant (usufructuarius). and the bona
fide possessor i.e. the person who possesses another's property
in the honest belief that he has a right to it. So long as their
interest continues, they are the owners of the fruits that are
gathered. Therefore, if the usufructuarius or life tenant dies
before harvest, the fruits, since they have not been gathered,
do not belong to his heir but to the dominus (owner) or the
reversioner. When the true owner brings an action to recover
his property from the bonafide possessor, the latter is bound
to restore the property itself together with such fruits as are in
being at the moment the action is brought, not those which he
has gathered in good faith. The malajide possessor, on the
other hand, is bound to restore or to give compensation for
everything, whether consumed or not. According to Justinian,
the term 'fruit' includes they young of animals. So the lambs
become the property of the us ufnictuart us but the 'fruits' does
not include the offspring of a female slave and they belong to
the reversioner and not to the life tenant.
(5) Traditio :—Tradttio (delivery) was formerly applicable
to the transfer of res nec mancipi but in the time of Justinian
it became the, common method of alienation for res
corporales. To constitute good title by tradit(o, the following
elements must concur:-
(1) The transferor must either be the owner or his agent
(e.g. tutor or mortgage with the right to sell).
(2) He must intend to transfer and the other person must
accept the ownership of thing. The intention to
confer ownership need not always be in favour of a
definite individual e.g. when the praetor throws
money to the mob there is a good tradttio, though the
praetor merely intends that the first person who
picks it up shall keep it.
(3) The thing must not be res extra commerdum.

(4) There must be some good legal reason to support the
delivery. The reason is that the purchaser had paid
the price or satisfied the seller in some other way, or
the donor gave the res by way of dowry or gift.
(5) Actual delivery may not be possible in all cases. The
thing to be delivered may be too heavy, or it may be
land, or may be at a distance. In such cases delivery
may take place without actual transfer of physical
control.
Delivery may be actual or constructive. Constructive
delivery was of the following kinds
(1) Tradtio bravt mariu.—If the person to whom
ownership was sought to be transferred was already
in actual control, the ownership could be transferred
by mere expression of a wish to that effect by the
owner. Thus A delivered a thing to B for safe custody
and afterwards sold or made a present of it to B.
while it was in B's possession. Here no fresh delivery
was necessary and mere declaration of intention was
enough. Similarly the delivery of the keys of a house
of a ware-house was sufficient to transfer the
property either in the house itself or its contents.
Putting marks, as upon logs of wood, was another
way of effecting legal delivery, where it would have
been difficult to have an actual dealing with the
physical control.
(2) Traditto longa manu.—It occurred when the res or
thing was pointed out to the transferee and it was
declared that he was free to take control of it.
(3) Constitutum possessorium.—It occurred if an owner
in possession sold the res agreeing to hold it for the
vendee, the making of this agreement was a valid
traditlo. The possession and with it the ownership,
passed to vendee without any actual displacement.
Thus A, an owner in possession, sold his land to B
and at the same time agreed to be the tenant of B.
(B) Civil modes :—Justinian only mentioned twc
methods of acquiring property at civil law, viz., usucapio and
donatio. There were, in fact, two other ways in his time, viz.,
lege and adjudication. Under the old law there were also two
other methods viz. mancipatio and injure cessio. In all, the
following were the civil modes of acquiring property :-
(1) Mancipatio.
(2) Injure cesslo.
(3) Usucapio.
(4) Donatio.
(5) Lege.
(6) Adjudicatto.
(1) Mancipatio :—The earliest form of conveyance or
transfer of res mancipi at Rome was the mancipatio which
was confined to Roman citizen. The process of conveyance
was as follows :—Before five citizens above the age of puberty
and a libripens (another citizen to hold a balance), the alienee
holding a piece of bronze (aes), touched either the object or a
representative part of it and said, "I declare that this slave (or
thing) is mine exjure quiritium, and let it be bought for me
with this piece of bronze and balance of bronze. After this
declaration he stroke the balance with the piece of bronze,
and gave it (bronze), as if it was the price to be paid, to the
mancipator or seller. At the close of the ceremony the
ownership was automatically transferred to the alienee
(transferee). This formal transaction was called per aes et
librarn.
Mancipatio was applicable not only as a means of
transferring property but to the ceremonies of adoption,
emancipation, marriage, and testament, Mancipa tio
disappeared under the law of Justinian, when the distinction
between res mancipi and res nec mancipi was abolished and
all things were conveyed by traditio.
(2) Injure cessio :—Injure cessio was a fictitious law suit in
the court of law. It was used not merely as a means of
conveying property but also in manumissio vindicta,
adoptions, creation of servitudes, and transfer of a hereditas.
As a method of conveyance it involved a claim before the
praetor by the intended alienee that the property in question
always belonged to him, If the ownership of a slave was to be
transferred, the alienee taking hold of him said a special set
of words called the 'rluncupatio.' The owner made no defence
and the praetor awarded the slave to the new master. In
Justinian's time it was altogether obsolete and unnecessary as
a means of conveyance as traditio applied to all res
Co rporales.
(3) Usucapio :—It was a means of acquiring dorntnium

(ownership) by possession for the period fixed by law.
According to the Twelve Tables, the period of possession was
one year for movables and two years for immovables.
Usucaplo was utilised mainly in two cases : (1) when quiri:tary
property was transferred by a non-qufritary, method, i.e.
when res manctpt was transferred by tradttto, and (2) when
the thing was alienated by a non owner. Usucaplo served to
cure defective titles in all cases where a mere informality
stood on the way to acquire ownership according to law.
Before the title was perfected by usucapio, the possessor was
secured in the enjoyment of the ownership by the praetor.
This form of ownership was called bonitary (equitable)
ownership as distinguished from quirtary (legal) ownership.
In order to get the benefit of usucapio the following conditions
had to be satisfied :-
(i) The claimant must actually possess the thing in
question. He must have possess(o civilis a s
distinguished from mere detentio. Possession
coupled with other factors which enabled the holder
to get the benefit of usucapio was known in classical

law as possessio cWths. A person to whom goods had
been entrusted for safe custody had only detentio and
therefore, however long he might hold them he could
never, by usucapio, acquire dominium.
(ii) The claimant must have the jus commercit; hence no
peregrinus could acqurie by usucapto.
(iii) The claimant must possess the property for the full
period but if he was an heir, suppose of B, he could
count the period of possession B had in his favour. B
was in possession of a movable property for three
months, it was sufficient for his heir to remain in
possession of the property for nine months only to
claim the benefit of usucapto.
(iv) The possession must have been continuous and
uninterrupted for the full period required by law.
Thus A was usucapating a slave who ran away, he
must begin over again without counting his previous
possession when he regained the slave.
(v) Certain properties could not be acquired by u.sucapto
e.g. res extra commercium, land in the provinces and
stolen property.
(vi) The person in possession must have bonafides(good
faith), that is, he must not know that the property
belonged to another and he must have jtista causa,
that is, there must be some ground recognised by the
law for usucapio to operate. It was ajusta causa if A
bought a res mancipi by traditlo and failed to
observe the formalities and ceremonies.
Prescrip tio, —Before the time of Justinian usucapio was
distinguished from prescptio...
n Prescriptio was a mode of
acquisition of property by lapse of time as introduced by the
praetors for the for-eigners. It was a praetorian defence
(exceptio) which barred the remedy of the owner against the
possessor when the latter remained in possession for a
definite period. In the earliest period of Roman law the period

of prescriptto was same as usucapio i.e. a prescriptive title to
movables was acquired by possession for one year and
immovables for two years. When a person remained in
possession for the prescriptive period and afterwards lost it,
he was allowed by the praetorian law an actio utilis to
vindicate his right.
The essential elements or prescriptio were the following
:—(1) The possession should be bonajide, i.e. acquired in the
honest belief that the vendor was the owner. (2) The
possession must be uninterrupted and continuous for the full
statutory period. (3) The property should not be tainted with
any vice, i.e. it should not have come by clandestine or
forcible manner.
Prescription was positive or negative. It was positive when
the possessor remained in possession of the property for the
prescriptive period which cured his defective title into a
perfect one. By negative prescription the true owner was
debarred from his legal remedy if he neglected to seek the aid
of the tribunals for a given time. Hence rights were acquired
in favour of the possessor by positive prescription and the
rights of the true owner were extinguished by negative
prescription.
Inapplicability of prescrptio.—Certain special kinds of
property were withdrawn from the operation of prescriptio.
viz, (1) res extra commercium, (2) stolen property and property
taken by violence, and (3) property whose alienation was
forbidden by statute.
The difference between usucapio and prescriptio
(I) Usucapo was introduced by the Twelve Tables, while

prescrtptio by the praetor.
(ii) Usucapo gave an actio (action) as well as exceptio
(defence) i.e. it gave both active and passive right,
while prescriptio gave only an exceptio i.e. it was
available only as a defence.
(iii) By usucapio property was acquired subject to
incumbrances, if any, but by prescript(o it was
acquired free from all in cumbrances.
(iv) Usucapio was interrupted only by the judgement in
action, while prescrfpto, being merely a defence,
was interrupted by the joinder of issue (1its
contestatio).
(v) Usucapio applied only to res mancip( whereas
prescriptio applied both to res mancipt and res nec
mancip t.
(vi) Both by prescriptio and usucaplo a non-owner
became an owner through efflux of time.
Justinian's changes in usucapio and prescriptio :-
Justinian amended both the civil law of usucapie and
prescriptio and embodied the two ideas into one system. He
introduced the following changes
(i) Title to movable property should be acquired by
three years' undisturbed possession.
(ii) Title to immovable property should be acquired by
ten years' possession if the parties (owner and
possessor) lived in the same province (inter
presentes) and by twenty years' possession if the
parties lived in different provinces (inter absentes).
(iii) Undisturbed possession for 30 years in general gave
good defence even when the possessor came in under
no title or the thing belonged to a class excepted from
ordinary prescription. It was also provided that
ownership could be acquired by extraordinary
prescription of 40 years whatever was the origin of
possession. The acquisition of ownership by
possession for 30 years or 40 years was called
prescrtptto longissimi temporis.
Usurpatio (interruption) and its effects :-

Prescriptto was interrupted by any act whereby the proprietor
or creditor exercised his right. The interruption was natural
when the possessor was deprived of possession by the true
owner.The interruption was civil when judicial proceedings
were brought by the owner to vindicate his right before the
period of prescriptio was complete. The effect of interruption
was that the possessor had to begin a new course of possession
from the day of interruption. The person prescribing could
not avail himself of his previous possession but he must begin
a new course from the date of interruption.
(4) Donatio :—Donatio (gift) is the giving of something to
another voluntarily and gratuitously and without any
previous obligation. The subject of gift may be movable or
immovable property or anything having a pecuniary value.
There must be an intention to give on the part of the donor
and acceptance on the part of the donee. Acceptance may also
be presumed.
An agreement to make a donation was a natural
obligation and gave no right to the donee to sue for
performance of delivery but it might be enforced when it was
clothed with the form of stipulatio. Justinian allowed the
donee to bring an action for delivery, when the donor declared
his intention to give a thing, either orally or in writing, even
though the form of stipulatio had not been observed.
Justinian speaks of donatio as a mode of acquisition but it
was not treated as such by Gaius. Gift is a justa causa for
traditio. According to Justinian there were three distinct
cases of donatio. viz.,
(1) Dortatlo mortis causa.
(2) Donato inter vivos.
(3) Dortatto propter rluptEas.
(1) Doaatio mortis causa :—This was a gift made in
anticipation of death. Such a gift was made to the donee or to
any one on his behalf on condition that it should be his

property if the donor died but if the donor survived the
anticipated peril, he should get his property back, Such a gift
might take one of the two forms: A may give the domirtium of
the object to B at once, subject to the condition that the
dominium is to be retransferreci to A if he does not die, or A
may merely give B the possession of the object: B's acquisition
of the dorninium being conditional on As death. A donatio
mortis causa was revocable at any time before death and it
was rescrinded by the insolvency of the donor, or by the death
of the donee before the donor. It was unlike a donatio inter
vivos, which could not be revoked. Justinian required that
such gifts had to be made in presence of five witnesses whether
the gift was in writing or not and registration was not
necessary. It resembled legacy and the rules applicable to both
were practically the same. It d fi fered from legacy, mainly in
two ways :-
(a) A donatio mortis causa took effect, at any rate in
possession, at once whereas a legacy did not take
effect until the donor had died and the heir had
entered.
(b) A filiasfamilias (son under paterfamilias) could,
with his pater's assent, make a good donatio mortis
causa out of his own peculium profecticium but he
could not bequeath it.
(2) Donatio inter vivos.—This was merely a gratuitous
conveyance made by the donor to the donee. Under the old law
there were only three ways in which a gift inter vivos could be
made:
(a) The donor might make over the gift by a manc(patio
or an injure cess(o, or later by traditio, or
(b) The donor might bind himself to make the gift by the
formal verbal contract of stipulatio, or
(c) The creditor might release the debt by acceptilatio.
(3) Donatio propter nuptias (see p. 82)
The lex Cincia (204 B.C.) prohibited all donations beyond

a certain maximum. But gifts in favour of near relatives and
patrons were exempted from the restriction. This law
required all gifts to be actually transferred by mancipatio or
the like, otherwise they were revocable by the donor.
Antoninus Pius provided that, as between parents and
children, a mere informal agreement should be actionable.
Constantine directed that gifts exceedig 200 solidi were
required to be registered and delivered in the presence of
witnesses.
Justinian made the following modification :—(i) He
required gift exceeding 500 solidi to be registered, otherwise
the gift was void as to the excess over that amount. But certain
gifts, even though of greater amount, were valid without
registration, e.g. to redeem captives, or in case of gift made by
or to the Emperor. (ii) He also simplified the law as to
revocation. Originally gifts (rtterv(vcs were not as a rule
revocable, except those made by the father or patron to a child
or freedman which were revocable on the ground of
ingratitude. Justinian permitted all donor without
distinction to revoke on the ground of gross ingratitude or for
non-compliance of the condition upon which the gift was
made.
(5) Lege (or title by statute) :—The property in a lapsed or
forfeited testamentary bequest might be acquired by virtue of
the lex Papia Poppaea. Similarly a person might acquire
property by law (lege), e.g. certain legatees acquired the legacy
by force of law as embodied in the Twelve Tables.
(6) Adjudicatio :—Adjuthcatio was the award of a judge in a
suit for partition. The co-owner of the property could
amicably divide the joint property. If they did not agree or
were under disability, the assistance of the law court was
necessary and the judge would decide how the property was to
be equitably divided between them. He would by his award
(adjudication) give the sharers without any conveyance the
share which he should receive. Adjudicatto was, therefore, a

mode of acquiring property because the award gave each
sharer the sole ownership in his share of the property what
previously belonged to all the co-owners.
For recapitulation the methods of acquiring ownership
are given in a tabular form:
Methods of acquiring ownership
Natural Civil
(1) Occupatio (1) Martcipatio.

(2) Accessio. (2) Injure cessio.
(3) Specficatto. (3) Usucapio.
(4) Fructuum perceptio. (4) Donatlo.
(5) Traditto. (5) Lege.
(6) Adjudicatio.
6. Jura in re aliena :—Ownership gives innumerable

rights of enjoyment over a thing. Any one or more of the
innumerable rights involved in the right of enjoyment may be
vested in some person other than the owner. That person has
a right, entitling him to some advantage from, or use of the
property of the owner. When a portion of such rights of
ownership is given to that person to be exercised by him to the
exclusion of the owner, such detached rights were called in
Roman law jura in re alierta. It is a limited right of a person
on the property of the owner. Thus A is the owner of a piece of
land and B has a right of way over it. here A's ownership is
curtailed by B's right of way. B's right over A's property isjura
in re aliena. In Roman law there were four classes of jura in re
aliena, viz.,
(A) .Servitude.
(B) Emphyteusis.
(C) SuperJicies.
(D) Pledge.
They are rights in rem i.e. rights which are available
against the whole world. These rights are enforceable not only
against the owner but against any one who interferes with it.
These rights are less than complete ownership. They confer
limited rights and are subordinate to and curbed or detached
out of ownership.
(A) Servitude :—A servitude is a right of an owner of an

adjoining land to enjoy certain advantages on the land of
another person. Thus A has the right of walking over Bs land;
As right is a servitude. It is an incorporeal right. According to
the Roman jurists a servitude was a real right, vested in or
annexed to a definite person or piece of land, over some object
belonging to another and limiting the enjoyment of that
object in a definite manner. According to Salmond, a
servitude is a right to the limited use of a piece of land
unaccompanied either by the ownership or by the possession
of it.
A servitued may be positive or negative. If it is a positive

servitude, the holder of the servitude may do something in
relation to it upon anothers land e.g. right to walk over
another mans land. If it is negative, he may restrain the
owner from exercising some rights which, but for the
survitude, the owner could avail. Thus an owner of land can
build to any height he pleases, but if any person has the
servitude, the owner can not build so high as to obstruct that
person's right of light or air. Whether it is a positive or
negative servitude the owner of the thing subject to the
servitude can not be compelled to do anything. But there is an
exception to this rule. The exception happens in the case
where a mans walls or pillars are used to support another's
building. The agreement to support involved the duty to repair
in case of need. Thus A is bound to support B's beam by A's
wall. The wall is ruinous, A is bound to repair. From the

nature of servitude it follows that an owner could not have
servitude over his own land. The Romans divided servitudes
into (i) praedial and (ii) personal.
Praedial servitude :—A praedial servitude occurred

where the owner of one property had the right to take some
advantage from the adjoining property belonging to another
person. Such a servitude was granted in favour of the
proprietor of a particular estate, so that all owners of that
estate had a right to enjoy them. It was a burden imposed on a
particular land in favour of another land. Therefore, the
praedial servitude implied the existence of two properties. One
was called praedium domrnans (dominant tenement) and the
other praedium serv(ens (servient tenement). The land, which
enjoyed the right or which was benefited, was called the
praedfttm domüians or dominant tenement. The land which
carried the burden was called the praethum serviens or
servient tenement. In other words the land in favour of which
the right was created was praedtum clomtnans and the land
subject to the right was praedium serviens. Praedial servitude
was perpetual and would be enjoyed or borne by all
subsequent owners of the two properties. It was indivisible,
and inseparable from the land to which they were attached.
Praedial servitudes were divided into (a) rural and (b) urban.
(a) Rural servitude.—A rural or rustic servitude was related
to land wherever situated and the urban servitude was related
to building whether in town or in country. The distinction did
not depend on the situation of the property affected. It might
be in the town or in the country. The chief rural servitudes
were the following :-
(i) Iter.—It was a right of a man to pass over the property
of another either on foot or horseback or in a litter.
(ii) Actus.—It was a right to use a road for carriages, and
for driving cattle and other beasts of burden.
(iii) Via.—It was the most extensive right of passage,

comprehending not only the first two but also the
right of using the road for all sorts of carriages, and
for dragging stones, wood and building materials.
(iv) Aquae ductus.—It was a servitude to lead water by
canals or pipes through another's ground.
(v) Aquae haustus.—It was the right of drawing water
from a well or fountain of another for domestic
purposes.
(vi) Pecoris ad aquam appulsus.—It was a right of taking
cattle to water on another's land.
(vii) Pascendi pecoris.—It was a right of feeding cattle or
sheep on anothers ground.
(viii) Calcis coquendae.—It was a right of burning chalk or
lime on the land of the servient tenement.
(ix) Other rights.—There were many other servitudes
which gave the right to take stones, lime, sand,
chalk, props for vines and many similar rights.
(b) Urban servitudes.—The urban servitude was related to
building whether in town or country. The chief urban
servitudes were the following
(i) Onerisfereridi ( right of support).—This was the right
to rest the whole or part of a building on the land or
the housewail or property of the servient owner. It
was an incumbent on the owner of the servient
property to keep it in repair, so as to make it
sufficient to bear the burden. This was an only
exception where an active duty was cast on the
servient tenant.
(ii) Tigni immitendi.—This was the right of fixing a
beam in the neighbours wall for security.
(iii) StiUictadt vet Jiumints rectpieridi servitus.—This
was the right of a man that his neighbour should
Roman— il
permit rain-water from the former's house to flow

into or over his premises. (The word st1Ucid(um
means rain in drops; when the water is collected in a
flowing body, it is termed flumen).
(iv) Aittus non tollendL—This was the right against a
neighbour to restrain from raising the houses or
other buildings beyond a certain height.
(v) Ne lurntrübus offtciatur.—This was a right to
prohibit construction in such a manner that would
shut out light from a house or the general view.
Creation of praedial servitude.—The old rural
servitudes were created by manc(patio conventto (pacts and
stipulations), testament and prescription. Servitudes in
Italian soil were constituted generally by Injure cessth as well
as by adjud(cation and in provincial soil by conventto i.e.
pacts and stipulations. In the time of Justinian the
distinction between Italian and provincial soil was abolished
and servitudes were frequently constituted by pacts and
stipulations.
Extinction of praedial servitude :—Though praedial
servitudes were normally perpetual, still they were
terminated in the following ways :-
(i) By confusio (merger).—When the dominant and
servient tenements came into the hands of the same
proprietor, the lesser right (servitude) was merged
into the greater right (ownership) and consequently
extinguished.
(ii) By renunciation of ownership of the dominant
tenement the servitude was lost.
(iii) Sometimes servitudes were extinguished by natural
circumstances e.g. when the dominant or the
servient tenement was destroyed by an earthquake.
(iv) By non-user for 10 years inter presentes and 20 years
inter absentes.
Personal servitude : —A personal servitude arose when
the use of a thing was allowed to a particular individual other
than the proprietor. The person entitled to the right enjoyed
it, not as an owner of property, but because he had acquired it
in his private capacity. Personal servitude existed not on one
land for the benefit of another land but on a definite thing for
the benefit of a definite person or a class of persons. The
personal servitudes were divided into
(1) Usufruct.
(2) Usus.
(3) Habitatio.
(4) Operae servorum.
(1) Usufruct :- Usufruct was the right to use and enjoy
the property belonging to another without impairing its
substance. The right was granted to a man personally for his
life or for a fixed period or until capitis demiriuto. The
property was to revert intact to the dom(nus or his heir after
the termination of the usufruct. The right might be conferred
by contract or testament, either for the life of the grantee or
for a fixed period. The objects of the usufruct might be in land,
houses or buildings, slaves or beasts of burden, and in
anything except things which were destroyed by use, the
reason being that it was impossible to restore such things at
the end of the usufruct intact. But the senate permitted a
quasi-usufruct to be created by will even in regard to things
which were consumed in use, e.g. money, wine, oil, wheat etc.
In such a case the usufructuarius (the holder of the usufruct)
could not undertake to restore them but he had to give security
to restore as much in quantity and value as he had received or
to pay and equivalent in money as compensation on the
expiry of his right to the testators heir on his death.
Quasüisufruct was a loan without interest.
Usufruct corresponds to a certain extent to the life interest
in English law. Usufruct included possession, use and fruit.
Like servitude it was inalienable.
Rights of the usufructuarius.—He was entitled to the

possession and enjoyment of the property. Although he could
not legally transfer the usufruct to another, he could, as a fact,
permit another to have the use and enjoyment of it. He was
not liable for accidental loss or damage. If the property in
question was a farm, he was entitled to its ordinary produce,
and acquired by fructium perceptio the fruits, which included
the young of animals, but not the children of a female slave. If
the property was a slave the usufructuarius was entitled to his
services. His title to the fruits of land did not accrue till they
were reaped. If he died before this, no right passed to his
representatives.
Duties of the usufructuarius.—In all cases usufructuarius
was bound to show the same degree of care in the management
of the property as a bonus paterfamilias and was, therefore,
liable for waste. He could not use the property for any purpose
other than the agreed one, nor alter the character of the
property. If the usufruct was of a house he was to do all
necessary repairs. In the case of cattle or sheep he should keep
up the usual number of the herd or flock. He was to replace any
of the flock which died out of the young which belonged to
him. He was bound to restore the property uninjured. He could
not change the character of the thing. To guard against waste
or encroachment, he might b: compelled to give security for
the restoration of the property in its original condition.
Creation of usufruct.—Usufruct was created in the
following ways
(1) By contract.
(2) By testament or will either for life or for a fixed
period.
(3) By adjudicatio.
(4) By maricipatto usufruct was created by way of
reservation (deductio) e.g., the land was mancipated
with the condition that the usufruct would belong to
a person other than the mancipatee. The latter in

such a case had the bare ownership called nuda
proprietas.
(5) By statute e.g. the father's usufruct in half of the
peculiurn advertticium of his son after
emancipation.
Extinction of usufruct.—Usufruct came to an end in the
following ways :-
(a) By natural or civil death of the usufructuary.
(b) By expiry of the period of usufruct.
(c) By consolidation or merger i.e where the usufruct
and ownership were united in the same person.
(d) By the total destruction of the subject.
(e) By non-use for ten years when the parties were
present in the same province and twenty years when
they were in different provinces.
• (1) When the usufruct was created for another's life, it
ceased on the death of that person.
(g) By capitis deminutlo maximan, media and minima
before the time of Justinian. But Justinian enacted
that only capitis deminutio maxima and media
would destroy the usufruct.
(h) By forfeiture for breach of some conditions or waste.
(2) Usus : —Usus in Roman law was a right to use a thing
belonging to another without wasting its substance, and
without being entitled to the produce beyond what was
necessary to supply the daily wants and necessaries of the
user and his family. A person having the use of a farm could
take only such vegetables, fruits, etc., as were necessary for
his daily needs. The usuarius of cattle or sheep could not take
the lambs or the wool but could take only the milk. He could
use the animals to manure his land. He was entitled to use the
thing personally but could not let, sell or give it to another. So
a person having the use of a house could live himself in it, but
could not permit another to occupy it in his place. There was
thus much less benefit or emolument in usus (the use of the
thing) than in the usufruct. Usus was constituted and
terminated in the same way as usufruct.
(3) Habitatio: —It was a right to reside gratuitously in a
house belonging to another. Originally it was a personal
privilege but Justinian permitted the grantee either to live in
the house or to let it as a place of residence to another.
Habttatio was not lost by nonuser nor by capttis deminutio
minima even before Justinian.
(4) Operae servorurn :—It was a personal right to the
services of the slaves of another. When such a right was
created by legacy it did not terminate by the death of the
legatee, but passed to his heirs who enjoyed the services
during the life of the slave. A similar right existed in respect
of the labour of animals, and this was called operae
animalium. The differences between the servitudes and an
usufruct are that neither death, nor capitis demtrtutio
minima, nor non-user operated to extinguish the right.
Creation of servitude.—According to the civil law the
normal way of creating a servitude was the following :-
(1) By injure cessio i.e. the fictitious law-suit in which
the plaintiff claimed that he had the right of walking
over the defendants land and the defendant
acquiesced.
(2) By maricipatio.—A rustic servitude, being a res
mancipi, could be created by marmcipatio.
(3) By deductio ( reservation) i.e. by reserving a right at
the time of transfer by mancipatio or injure cessio.
(4) By testament (will).
(5) By adjudicatio.
(6) By agreement of the parties in a solemn form of
stipulation.
(7) By prescripto lortgi temporis.—By uninterrupted

exercise of the right for 10 years inter presentes and
20 years inter absentes.
In the time of Justinian the difference between Italian and
provincial lands was abolished, and injure cessio and
mancpatio had become obsolete as methods of conveyance.
In his time, therefore, servitudes were created in the following
ways
(1) By agreement and stipulatio.
(2) By deductio. The right of servitude was reserved
when property was conveyed to another by traditio.
(3) By prescriptio longi temporis i.e. by continuous user
for 10 years inter presentes and 20 years inter
absentes.
(4) By testament.
(5 By adjudiccitio.
(6) By statute e.g. the fathers usufruct in half of his son's
peculium adventicf urn after emancipation.
Termination of servitude.—Servitude terminated in the
following ways
(1) By death.—If the servitude was a personal one, by
death or capitis derninutio of the person entitled.
Capitis deminutto minima never produced this
result in the case of habitatto and operae servorum,
and under Justinian it had no effect in the case of
any servitude.
(2) In the case of usufruct, by the usufructuarius want
only abusing his rights.
(3) In the case of praedial servitude, by the permanent
destruction of the praedium dominans.
(4) by destruction of the thing subject to the servitude.
(5) Merger.—When the dominant tenement and servient
tenement came into the hands of the same person.
(6) Non-user : —Habitatlo and operae servorum were
never lost by non-user. Under the old law usufruct or usus
were extinguished by non-user for one year in the case of
movables, and two years in the case of immovables; non-user
for two years extinguished praedial servitudes. If the
servitudes affected provincial soil, non-user for 10 years inter
presentes and 20 years inter absentes extinguished servitudes.
This period was adopted by Justinian for all cases.
(7) By renunciation —Servitudes were extinguished by
renunciation or voluntary surrender.
(B) Emphyteusis :—Emphyteusis was a grant of land for
ever or for a long period at an annual rent payable to the
grantor or his successors. If the rent was not paid, the grant
would be forfeited. It was a sort of perpetual lease and the
ownership remained with the grantor. The grant was
heritable. It had its origin in the long or perpetual leases,
granted by the Roman state, of lands taken in war. The rent
paid for such land was called vectigal and the land ager
vectigalis.
The advantages of this perpetual lease were appreciated by
corporations, ecclesiastical and municipal bodies. This
tenure relieved the owners in the management of their lands
and gave them in exchange a perpetual right to rent. From this
standpoint this tenure was beneficial and convenient for
corporate bodies. The same tenure was adopted by private
individuals under the name of emphyteusis. In the time of
Gaius a controversy arose as to whether emphyteusis was a
sale or a lease of land. It resembled sale as it gave a right for
ever to the grantee in the land but it .differed from sale as there
was an annual payment of rent. It resembled hire in respect of
the rent but it differed from hire in respect of the perpetual
interest of the tenant. Emperor Zeno settled the dispute by
declaring that it should be considered neither a sale nor a hire
but a particular contract standing by itself and governed by
the agreement of the parties.
Chapter—V The Law of Things i
Emphyteusis occupies an important place in the history of
land tenure. It was pointed out by Sir Henry Maine that it
marks a stage in the history of ideas which led ultimately to
feudalism. The double ownership of the feudal system is found
in this tenure.
Rights and duties of emphyteuta (lessee).—His rights were
far greater than those of an usufructuary and resembled those
of an absolute owner. His rights were almost unrestricted
except that he must not destroy the property so as to impair
the security for the rent. He could possess lands, reap the
fruits, make changes in the substance provided he did not
injure the property. He could be ejected from the land if he
failed to pay rent for three years. He could sell his rights but
was bound to give notice to the landlord (owner) of his
intention to sell the property and of the sum ottered to him by
the proposed purchaser. The owner had the option of buying it
at that. moment and if he did not exercise his right of
preem 1:. Ion the tenant could sell to any person without the
consent of the owner who was bound to admit the purchaser
into possession and was entitled to a fine called Iartdemium
not exceeding two percent of the purchase money.
Creation of emphyteusis : - Emphyteusis was created
either by a convention or by a testament.
Termination of emphyteusis :—The right was
extinguished by (1) consent of parties, (2) non-payment of rent
for two years in case of church property and three years in
other cases, (3) total destruction of the object, (4) expiry of the
period when the grant was for a fixed period, (5) death of the
grantee without heirs.
(C) Superficies : —Superficies, a real right, was created
by the praetor. It was a lease of land either in perpetuity or for
a long term for building purposes at a fixed rent. According to
jus civile the house became the property of the owner of the
land on the maxim "superJicies solo cedit." In such a case the
praetor enforced that the builder had a real righ to the full
possession and enjoyment of the house so long as the rent was

paid. The right of the builder was heritable as well as
alienable. It was constituted by contract which regulated the
incidents of the right. The lessee acquired rights in rem to the
extent of his interest. It was protected by a special interdict by
the praetor.
The difference between emphyteuss and superficies is
that the former was a lease of land for agricultural purposes
and the latter for building purposes. Superjicies was created
and extinguished in the same way as emphyteusfs.
(D) Pledge (mortgage) :—Pledge is the delivery of a

thing to a creditor as a security for the loan, on condition of
his restoring it to the owner after payment of the debt, and
with a power of sale of the property if the debt was not paid. In
modem law the term pledge is generally confined to movables
and the pledge of immovable property is called a rnuitgage.
But the Romans applied the term both to movable and
immovable property. A pledge is a jura in re aUerta; it creates
not only a right in personam but a right in rem. The law of
pledge in Roman law passed through three stages at various
times
(1) Ftclucia.
(2) Pignus.
(3) Hypotheca.
(1) Fiducia :—The earliest form of pledge was to convey
the property absolutely by the borrower to the lender as a
security for the loan by mancipatio or injure cessio and
thereby the lender became the owner of the property. The
lender them undertook by a pactum ficlucia (an agreement of
trust) to make reconveyaricc when the principal and interest
were repaid. Since he was the owner he could at law realise his
security by selling the property; in case of sale he would hand
over the balance, if any, to the borrower, If he could not pay
oft the loan in time, he would lose his property for ever. The
borrower might be willing to repay the money, but in the

meantime the lender might have sold the property and the
borrower could not follow it in the hands of the purchaser. But
the free exercise of the power of sale was defeated in equity by
the Jiducia which bound him to return his property on
repayment. If he would sell the property and thereby the
borrower suffered damage, he could compel the lender by the
acio jiduciae to make compensation. In this form of
mortgage the mortgagee acquired right of wide orbit. He
became, in fact, more than a person with ajus in re al(ena as
he was owner at law. As this form of mortgage was carried out
by means of conveyance at civil law it had no application to
peregrini or to land in the provinces. This form of mortgage
placed the debtor at the mercy of the creditor. Although he
could get compensation under the Jiducia from the creditor in
case of sale of the property, he could not follow the property at
the hand, of the transferee of the creditor.
(2) Pignus :—The disadvantages of Jiducia led to the
creation of another form of mortgage known as pigrtus (a real
contract). Under this form the ownership remained with the
debtor but the possession was transferred to the creditor. If
the borrower failed to pay on the appointed day, his property
was lost. He was not allowed to recover it, as the lender was at
liberty to sell it after the expiry of the time fixed for payment.
This caused great hardship and injustice. At this point the
praetor interfered and issued an edict to the effect that where a
lender got possession of the debtors property, he should be
compelled to restore it to the debtor on his making a tender of
the loan. He gave the borrower for this purpose an action
called actio pigneraticia and this informal pledge was known
as pignus.
(3) Hypotheca : — Hypotheca was a form of mortgage
resting merely on agreement. Under this form neither the
dominium nor the possession was given to the creditor.
Servius, a praetor, introduced between landlord and tenant an
action (acto servana) by which the tenant could mortgage

his property and crops to secure his rent. This action gave the
landlord of a farm a right to take possession of the stock of
his tenant for rent due, when the tenant agreed that the stock
should be a security for the rent. Such a security was called
hypotheca. Subsequently the action was extended under the
name of quasi-servana to all cases where an owner retained
possession of the property but agreed that his property should
be a security for a debt. Thus in the result the owner could
borrow money, simply by offering sufficient security to the
creditor, without giving possession of the property to him.
The creditor could get the property from the debtor, if
necessary, by an interdict. He could assert his rights by an
action in rem against third parties and had a right of sale. The
chief advantages of hypotheca were—(i) the property remained
in the possession of the borrower and at the same time the
lender was adequately secured; (ii) many more objects could be
pledged, e.g. a slave child yet unborn; (iii) a general lien could
be created over the whole of a persons property and was
sometimes implied by law although there was no express
agreement, e.g. the landlord had an implied hypotheca over
the crops from the moment they were gathered.
In the time of Justinian the mortgage by way of fiducia
had entirely disappeared but the other two forms of mortgages
remained. There was no distinction between pigrlus and
hypotheca except the difference with regard to possession. In
pignus possession was given to the creditor and in hypotheca
it remained iwth the borrower.
Duties of creditor :—As the contract was for the benefit
of both parties, the creditor was bound to take ordinary care
and diligence on the property given by way of security and was
responsible for culpa levis (slight negligence). If it was
destroyed by unavoidable accident or any intrinsic defect, he
was not liable, but he must show how it was lost and that it
was beyond his power to prevent it. He could neither use, nor
take profit unless specially agreed upon, and was bound to

render accounts. He was entitled to be indemnified for all
necessary expenses.
Power of sale :—Both in pigrtus and hypotheca, the
power of sale was an inherent right of the mortgagee in the
Roman law. He had the right to realise his debt by selling the
mortgaged property, if he was not paid during the time agreed
upon. The debtor was entitled to the surplus sale proceeds, if
any. If the price was not sufficient, he had a personal action
for the amount remaining due. The power of sale was to be
exercised according to the terms of the agreement, and no
judicial authority was necessary. In the absence of any
agreement Justinian declared that the sale would not proceed
till two years had elapsed from the date of the notice to the
debtor or of a judicial decree against him before the power of
sale could be exercised.
Justinian allowed foreclosure when the creditor was
unable to find a buyer at an adequate price. But the debtor
must be given due notice, and if within the specified time he
did not pay, the creditor obtained the ownership on petition to
the Emperor. In case of foreclosure the debtor was allowed two
years' grace. If he did not pay all the principal with interest
within that time, his claim was absolutely foreclosed.
Priority.—If the same thing was mortgaged to several
persons and the property was not sufficient to pay them all,
the question of preference or priority arose. Except in the case
of a small number of privileged mortgages, the question of
priority was determined by two principal rules. First, a
mortgage made by a public deed, that is a deed prepared by a
notary and sealed in the presence of witnesses, or by a private
writing signed by three witnesses, was prefereed to an earlier
mortgage executed without those solemnities. Secondly,
unwritten mortgages, or, though written but unattested by
witnesses, took effect according to priority of time.
Tacit hypothecs (implied mortgages) :—Tacit

hypothecs were recognised by the Roman law, of which the
following may be mentioned :-
(1) The public treasury had a preference by tacit
hypothec over all the property of a person indebted
to the treasury.
(2) If money was lent for repair of a house, the building
was hypothecated to the creditor for the debt.
(3) In the case of farms, the landlord had an implied
hypothec over the crops from the moment they were
gathered.
(4) The landlord of a house or shop or warehouse, had a
similar hypothec over the movables brought into
them by the tenant.
(5) Pupil had a tacit hypothec over his tutors property.
The classification of jura in re ahena' is shown thus in a
tabular form :-
JURA IN RE ALIENA
Servitude Emphytcusis Superficies Pledge
Pracdial Personal Fiducia Pignus Hypotheca

I I (1) USUfrILCt
(2) Usus
Rural Urban (3) Hahitatio
(1) ltcr (I) Oneris ferendi (4) Operac scrvorum
(2) Actus (2) Tigni immitendi
(3) Via (3) Stillicidi
(4) Aquac ductus 4) Altius non tollendi
(5) Aquic haustus (5) Ne luininibus olficiatur
(6) Pccotis ad aquam appulsus
(7) Pascendi pecorts
(8) Calcis Cuqitendac
CHAPTER—VI
THE LAW OF SUCCESSION
1. Character of succession :—Under the Roman law
succession was universal. A universal succession means the
succession to a universitasjuris (bundle of rights and duties)
i.e. the succession of all the rights and liabilities of the dead
man. When a Roman died, the heir succeeded to all his
property and liabilities and this was called hered(tas
(inheritance). The inheritance was not merely an inheritance
of property, it was also the transfer of the personality of the
deceased to the heir on the death of the paterfamilias. Both
his property and personality descended to the heir. The legal
clothing of the deceased dropped from him and fell upon the
heir. He was the universal successor. He stepped into the shoes
of the deceased. He was entitled not only to the assets but he
was also responsible to pay all the debts of the deceased. If the
paterfamilias died a bankrupt and his liability was greater
than his assets, the heir had to pay off the debts from his own
pocket. It was immaterial whether the liabilities were
disproportionate to the assets. The heir could not raise any
ground that the deceased had left no funds to discharge his
debts. Until the alteration of the law by Justinian, the heir
was bound to pay all the debts of the deceased, even if he
obtained no property from him whatever.
Justinian's benefit of inventory.— Justinian altered the
law and relieved the heir from unlimited liability by
introducing the principle of limited representation by the
benefit of inventory. The heir was given an option to make an
inventory of all the property of the deceased. If he did so, his
liability was limited by the amount of the property received
i.e. he was not bound to pay the debts of the deceased beyond
the assets that came into his hands. But if he made no
inventory, his liability remained absolute as before and he
158 Roman Law Chapter—VI
was liable not only for the debts of the deceased, but in
addition, was compelled to pay all the legacies even if the
assets proved insufficient.
Heir and modern executor.- It is said that Justinian
converted the heir into an executor, a mere official appointed
by the testator for the purpose of winding up his affairs and
distributing his property. It is true that the heir, like an
executor, had no personal liability for the debts of the
deceased and like an executor he had to distribute the legacies
and pay off the debts. Here the similarity ends. An executor
has no personal interest in the estate he administers, unless
something has been expressly given to him by the testator. But
the case is otherwise with the Roman heir who took the estate
subject to debts and legacies. He could claim his right to a
fourth (quartafa1ctda) but an executor has no such claim.
2. Kinds of succession :—There were two kinds of
succession recognised in the Roman law, viz., testamentary
and intestate. Testamentary succession arose when a person
by testament (will) appointed an heir to succeed to his estate
after his death. Intestate succession arose when the deceased
left no will and his estate devolved upon his relations in
certain orders according to the law of the land.
3. Classes of heirs : —A Roman inheritance descended as
a matter of right to the following three classes of heirs :-
(1) Necessarll heredes (necessary heirs):
(2) Sui et necessarii heredes (proper and necessary
heirs);
(3) Ext raner heredes (strangers).
(1) Necessarü heredes :- A necessary or compulsory heir
was a slave of the deceased. When a slave was instituted by his
master as his heir, he became free at the testators death and
was compelled to take up the inheritance. Hence he was called
a necessary heir. He could not refuse the inheritance at all.
When the property of an insolvent person was sold by his
Chapter—VI The Law of Succession 159
creditors after his death for payment of their debts, his

memory was covered with infamy. To avoid this disgrace it
was common for one who suspected his solvency to institute
his slave as heir as a last resort, so that if he did not leave
enough to pay his debts, the goods were sold and divided
among his creditors, not in his masters name but as being the
property of his heir.
(2) Sui et necessarU heredes :- They were the Sons and
daughters or other descendants in the direct line who were
under the paternal power of the paterfamilias at the time of
his death and who, by his death, became suijuris. At first
they, like the slaves, could not decline the inheritance,
whatever might be the amount of the debts and engagements
of the ancestor. But this worked very hard, as when the
hereditas was damnosa (i.e. when the liabilities exceeded the
assets) the heir might be ruined. Subsequently the praetor
permitted the children and grand children to reject the
inheritance to relieve themselves from loss when the debts
exceeded the value of the estate. This right was confirmed by
the perpetual edict. After the praetorian innovation they
ceased to be the necessary heirs.
(3) Extranet heredes :- They embraced all other persons.
They were the persons who were not under the testator's power
at the time of his death. They were at liberty to accept or reject
the inheritance. But if they once accepted the inheritance,
they could not afterwards renounce. Anyone entitled to the
succession either under a testament or by law was accountable
as heir as soon as he declared his acceptance. By the
praetorian law the heir was allowed a certain time to
deliberate whether he would accept the inheritance and this
was fixed by Justinian not to exceed nine months if granted by
the magistrates, and a year if granted by the Emperor.
4. Horror of intestacy : — According to Maine, the
horror of intestacy led the Romans to dispose of property by
-means of testament. The rules of intestate succession account
Roman-12
for the vehement distaste for an intestacy. The order of

succession was this On the death of a Roman citizen, having
no will or no valid will, his unemancipated children became
his heirs. He emancipated sons had no share in the
inheritance. If he left no direct descendants living at his
death, the nearest grade of the agnatic kindred succeeded, but
no part of the inheritance was given to any relative related
however closely with the dead man through a female. Failing
children and nearest agnates, the inheritance devolved on the
gentiles, or the entire body of the Roman citizens bearing the
same name with the deceased. Therefore on failing to execute
an operative testament, a Roman left his emancipated
children absolutely without provision. If he died childless
there was an imminent risk that his possession would escape
from the family altogether and devolve on a number of
persons with whom he had no connection except the fictitious
assumption that all members of the same gens descended
from a common ancestor. It was unfortunate that his
emancipated children were deprived of the right of
inheritance according to law. The very object of emancipation
was frustrated. Whereas enfranchisement from the fathers
power was a demonstration rather than a severance of
affection-a mark of grace and favour accorde'i to the best
beloved and most esteemed of the children. It was these sons,
thus honoured above the rest who were absolutely deprived of
their heritage by intestacy. It was the moral injustice entailed
by the rules of intestate succession that generated the passion
for testacy among the Romans.
5. Nature of Roman will :—Under the Roman law a
testament (will) was primarily a document or declaration in
the prescribed form by which the testator nominated a
successor or successors on whom all his property rights and
liabilities devolved. It was simply the instrument by which
the intention of the testator was declared.
The essence of a Roman testament was (1) the institution
of an heir (a universal successor) to a deceased person and (2)
the devolution of inheritance. If a will failed in the
institution of an heir, it was wholly and absolutely worthless.
If it accomplished that object, it could effect other purposes,
such as the gift of legacies or the appointment of tutors. So the
legacy given in the will before the appointment of the heir was
void. Similarly if none of the heirs named in the will could or
would accept the inheritance, the will was void and the
legacies failed.
6. Essentials of Roman will:—In order that a will
should operate effectually, it must comply with the following
sets of conditions :-
(A) Certain forms or formalities must be observed.
(B) Certain persons, if not made heirs, must be formally
disinherited.
(C) An heir must be properly instituted.
(D) The testator, the witnesses and the heir must be
severally capable by law of taking the part assigned
to them.
(E) A definite portion of the testators property must be
left to certain persons.
Even when a will complied with all these conditions it
might ultimately fail, owing to circumstances arising beyond
the testators control. The will might remain perfectly good
and yet if the heir named for any reason refused to accept, the
whole fell to the ground. We shall now consider the essentials
of Roman will in order :-
(A) Forms o will (different kinds of wills) :—In anti-
justinian law there were four modes of making wills :-
(i) Wills made in comts calatis.- la the earliest times
wills were made before the general assembly of the
people called comtia calata which were held twice a
year for the purpose under the presidency of the chief
pontiff. The comitia calata was the name given to the
comitia cw-iata when it met twice a year for special
purposes, e.g. for validating adrogation, for matters

affecting religion, for sanctioning wills etc. The will
made in that assembly was called a testament in
comitis calatis. In the comitia calata the populus
voted on the will which was a patrician will. It was
not available for the plebeians. A will, being a
departure from the rule of intestate succession,
required the assent of the gentiles, whose interest
was involved, and since the sacra might be affected,
it required the sanction of the college of pontiffs.
Writing was then almost unknown and the will was
made orally and heard by witnesses. It was
completely public. The will was an ordinary
legislative act. This form of will had become obsolete
very early, perhaps with the disappearance of the
comitia curiata in the Republican period.
(ii) Wills in proctnctu.— It was the soldier's will and
made on the eve of the battle (in procirtctu), when the
army was ready to fight in presence of their
companions in arms. Three or four comrades
sufficed as witness. This was also declared orally.
This form of will was obsolete in Cicero's time.
(iii) Will per aes et libram or mancipatory will. —The
next will, the old will of Republication Rome, was
originally a conveyance inter vivos (per aes et
libram). The will per aes et libran was an imaginary
sale of the inheritance by the testator to the intended
successor in presence of the balance holder and five
witnesses.
There were three stages in the development of the
mancipatory will or will per aes et libram. In its initial stage
the hereditas was conveyed out and out to a person who is
described as the famil(ae emptor or purchaser of the family.
The famivae, emptor was the heir. He took the conveyance of
the whole hereditas in presence of five witnesses and the
balance holder. It took effect immediately and was public and

irrevocable. During the second stage the mancipatory will was
irrevocable and public just as in the first stage but the
famlliae emptor became the heir after the death of the
testator. So in the second stage the will became effective on
the death of the testator. In the third and the final stage the
familiae emptor and heres were not the same person. He
(farniliae emptor) used to hold the property for the unknown
heir. In this stage will was secret, revocable and opened on
death. He undertook to distribute the property to the persons
named in the will after the death of the testator.
Difference between mancipatory will and modern
will :—The following were the differences between the ancient
Roman mancipatory will and modern will :-
(1) The former was a conveyance inter vivos was made
openly in the presence of a number of witnesses, whereas the
latter is a secret document. (2) The former took effect at once,
whereas the latter takes effect after the death of the testator.
(3) The former was irrevocable, whereas the latter is
revocable during the life of the testator.
(4) The primary purpose of a Roman will even in the time
of Justinian was to appoint an heir who was a universal
successor to the deceased. If it failed in that, it was wholly
worthless. From the legal standpoint the nomination of the
heir was the sole object of the will, whereas the purpose of a
modem will is to divide the property of the testator and an
executor is appointed merely for convenience in winding up
the estate. In other words the first and paramount object of
the modem will is the distribution of the property which was,
in the eye of the ancient Roman law, a secondary and
subsidiary point.
(5) The formalities, so essential to the former, are
altogether omitted in the latter.
(iv) Praetorian will.—Gradually the above forms of wills
were superseded by the written wills introduced by the praetor
164 Roman Law Chapter—VT
who avoided the formalities of the mancipatory will. These

wills were recognised by the edicts of the praetors and hence
the name. They were subsequently regulated by the
constitutions of the Emperors. The will was required to be
signed by the testator, or some person for him, in the presence
of seven witnesses called for the purpose, who attested the
same under their hands and seals. The praetor set forth in his
edict that when a written will was sealed with the seals of
seven witnesses, he (praetor) would give the person named as
heir in the will the possession of the inheritance, even though
no formal sale took place. This did not make him heir, but he
gradually came to be protected in his possession (bonorum
possessio) as effectually as if he had been instituted in a valid
will.
In Justinian's law the principal kinds of wills were the
following :-
(1) Tripartite will This was a will in writing signed by
the testator and attested and sealed by seven witnesses. It was
called tripartite will because it had threefold origin viz., (1)
The making of the will and the presence of witnesses at the
ceremony were derived from the jus civile. (2) The seals and
the number of witnesses came from the praetor's edict. (3) The
signatures of the testator and of the witnesses at the foot of the
will were derived from the Imperial constitutions.
(2) The nuncupative will :—It was an oral declaration by a
testator of his last wishes in the presence of seven witnesses.
It was made without writing, such wills were made by
illiterate and blind persons.
(3) Privileged wills :—Among the Romans. wills could be
made without formalities in the following case :-
(a) Soldiers could make their wills when they were
engaged in active service. All that was required was
the evidence of their intention regarding the
disposal of their property after death. This privilege
was enjoyed by soldiers only during the time of
actual service in the field, and testaments so made

without the usual solemnities were valid only for
one year after their discharge from the army. The
soldier's will was called privileged will, because it
was free from the formalities of every kind. He was
not bound by the rules of testamenti facto, the
querela and the falcidia. It could be revoked by any
expression. A soldier could die, partly testate and
partly intestate.
(b) During the prevalence of a pestilence or contigious
disease, the presence of seven witnesses at one time
and place was dispensed with. It was sufficient if
each in succession attached his signature and seal to
the will.
(c) In rural districts, when seven qualified witnesses
could not be found the number might be reduced to
five, and one witness might sign for those who could
not write.
(d) If a will was made by a parent for distributing his
property solely among his children or other
descendants no witnesses were required, provided
the testator wrote the will himself, or filled up in his
own handwriting the date of its execution with the
names and portions of the children. But a legacy left
to a stranger in such a will was ineffectual.
Among the Romans the testament was opened in presence
of the witnesses, or the major number of them, who had
signed it, and after they had acknowledged their seals, it was
read, and a copy was made. Thereafter the original was
deposited in the public archives and from the original a fresh
copy might be obtained if required.
(B) Disinherison :—The next condition of a valid will
was disinherison. If the father of a family wished to deprive
his children of the succession he was to declare his intention
by formally disinheriting them in his will. At first, sons
under the fathers power were disinherited by name, but

daughters and grand-children might be disinherited in
general terms. These distinctions were abolished by a
constitution of Justinian, which declared that all children,
whether emancipated or not, and all other descendants in the
male line, entitled by law to be called to the immediate
succession of the testator, should either be instituted heirs or
disinherited by name. As regards children adopted by an
ascendant, they passed into his family and he was bound
either to institute or disinherit them. But children adopted by
a stranger retained all their legal rights against natural
parent, and had only a right to the succession of the stranger
who adopted them if he died intestate.
If the person swjuris died without descendants, he was
bound in his will to institute or disinherit his ascendants,
without distinguishing between the paternal line and the
maternal line.
The necessity of disinheriting was at first nothing but a
simple form to protect children against the forgetfulness of
their ascendants in the paternal line, and the head of the
family could, from pure caprice and without any sufficient
reason, entirely exclude his descendants from the succession.
But before the age of Cicero the law only allowed disinherison
for grave reasons, without which the testament might be
annulled by an action called querela inofficiosi testamentt
(the plaint of an unduteous will). For a long time it was left to
the judge to decide what should be held sufficient reasons for
excluding the lawful heirs. Justinian fixed the grounds of
exclusion, such as attempting the life of the deceased,
grievously injuring him in his person, character, or feelings,
and other immoral or disgraceful acts and required that one
or more of these reasons should be indicated in the testament.
(C) Institution of heirs :—The appointment of heir was
called the institution of an heir. According to the strict rule of
the Roman law, no will was valid, unless one or more persons
were appointed heirs to represent the deceased. The testator

might appoint one or any number of heirs. No one, except a
soldier, could die partly testate, partly intestate. If a testator
appointed an heir for any portion of his property without
naming heirs for the remainder, such heir became entitled to
the whole inheritance. When several heirs were instituted, the
properly would be divided among them in such proportion as
the testator distributed in the will. If there was no
distribution all would participate equally in the inheritance.
If the shares of some of the heirs were expressed in the
testament, and nothing was said as to the shares of the other
heirs, they would be entitled to the remainder of the property
undisposed of by the testator.
The heir could be appointed simply or under a condition.

Various obligations could be imposed on him, such as to pay
legacies, to enfranchise slaves to erect a monument or public
edifice, and the like. All conditions which were impossible, or
contrary to law or good morals were rejected as if they had
never been written, without affecting the validity of the
testament in other respects. Accretion among co-heirs:-
Among co-heirs, in testamentary succession there was a right
of accretion, so that if one of them could not, or would not,
take his portion, it fell to the other heirs according to their
shares in the inheritance to the exclusion of the heirs at law
who were not called by the testament. Thus, where two
testamentary heirs were appointed, who were not heirs of
blood, and one of them declined to take his portion, or became
incapable of doing so, by his predeceasing the testator, or
other supervening incapacity, then the other heir, who was
instituted only for a part, became heir to the whole estate.
Substitution :—Substitution was one of the means by
which successive heredtas could be given to persons other
than those mentioned in the first instance. In case the person
first named might die or decline to act, it was usual to add
another to take in such an event. This was called substitution.
Substitution was divided into three kinds as mentioned by

Justinian in the Institutes :-
(1) Substttutio vulgaris (ordinary or common
substitution):—It was a simple substitution and
simply a conditional institution of a second or a
third heir in case the first heir died or refused to
accept the inheritancs. This was only to come into
operation if the first institution failed to take effect.
If he once accepted, the substitution was at an end.
Thus "let A be heir and decide within 100 days, if not,
let him be disinherited and let B be heir. Another
instance is 'Let my son Bablus be heir and if he fails
to become so let Maevius be heir.
(2) Substitutfo pupilaris (pupilary substitution). —A
person having a child under his power could appoint
him as heir and also name another person as
substitute in case the child should become heir but
die before puberty. This was called pupilary
substitution. In effect such a substitution was an
appointment of an heir to the child until he arrived
at the age of puberty when he could name one heir for
himself. If the child attained puberty, the
substitution became ineffectual. This substitution
involved two wills: paterfarniUas made one for
himself and another for the child. He was concerned,
however, more with the will or succession of his
child under power than with the will of himself. The
pupilary substitution for children was only effectual
when the father made a valid testament of his own.
The difference between substituio vulgaris and pupilaris
is that the former takes place if the first heir dies or refuses to
accept the inheritance and the latter takes effect when the
first heir occepts the inheritance but dies before attaining the
age of puberty.
(3) Substitutto examptaris or Q uas i-p up ilary . -

Justinian extended the privilege of pupilary
substitution to parents of insane children. This was
called substitutio exemplaris or q uas i-pup ilary.
Here a man who had children or other descendants,
who were insane, might make a substitution to them
in the manner of a pupilary substitution, even
though they had arrived at the age of puberty. But the
substitution became ineffectual, if the heirs first
called were restored to a sound mind, so as to be able
to make a will for themselves.
(D) Testamenti factio :—This expression has three

meanings:—(1) Capacity to make a will (testamenti factio
activa).—Among the Romans the power of making a testament
only belonged to citizens above puberty who were suijuris-a
rule which excluded a great number of persons. Only persons
who had thejus commerdil and were under no disability could
make a will. They had to possess the right not only at the date
of executing the will, but also at death. Afiltus (child under
paternal power) generally could not make a will, but he could
dispose of his peculium cast rense and quasi-cast rense because
he had independent proprietary right in relation to them.
Males above fourteen and females above twelve, when not
under power or otherwise specially disqualified, could make
will with-out the authority of their guardians. An impubes
(infant) was incpable because, although he might be swjuris,
his tender years disable him. The lunatics and prodigals had
no capacity to make wills as they were forbidden by the
praetor to manage their affairs. The prisoners of war during
their captivity, criminals con-demned to death or other
punishments inferring confiscation of property were
incapable of making a will. If a Roman citizen was captured in
war and so became a slave, he lost capacity, and any will made
during captivity was invalid, even though afterwards he
escaped and returned to Rome. But if he had already made a
will before capture, it remained good, whether he returned or
not. In the time of Gaius a person who was deaf or dumb was
incapable of making will, but Justinian removed the
incapacity except in the case of those who had been deal and
dumb from birth. A blind man could always make a will, but
in Justinians time special formalities were necessary; for
besides the usual seven witnesses, a notary, or in the absence
of a notary, an eighth witness was necessary and the will had
to be read aloud, A married woman was as capable of making
a will as one who was single.
(2) Capacity to take under a will (testameriti factio
passiva),—The right to take under a will was not confined to
Roman citizens alone but it was extended to slaves as well.
Every one who was either a citizen or subject to the potestas of
paterfamilias could take under a will though they were
incapable to make wills. Thus the lunatics, impubes, etc.,
could take under a will. The peregnni, latnrjunianL dediticU
could take benefit under a will. It was necessary that the
person in question should possess the capacity to take not
only at the date of the will and at the time of the testators
death but also at the date when the heir entered into the
inheritance. Consequently an unborn parson could not take
under a will although he could be disinherited.
(3) Capacity to witness a will—The capacity to witness a
will was only required at the time of making the will. In the
time of Gaius only those persons could be witnesses who were
capable of taking part in mancipation. No person could
participate in the ceremony who was not a citizen above the
age of puberty and under no incapacity. It follows that persons
who were deaf, dumb, mad, slaves, women or children under
tutela, were not competent witnesses. Under Justinian, no
person instituted heir, nor any one in his potestas, nor his
paterfamilias. nor his brother under the same potestas, could
he a witness. But however, the legatees and fidet-
cornmissarLus (beneficiary) could witness the will. Under
Justinian though the will was made no longer by means of a
fictitious sale, a witness had still to have jus cornmercii and
to be free from incapacity. Under the law of Justinian women,
children under puberty, slaves, deaf, dumb and blind persons,
madmen, prodigals, etc., were incompetent witnesses,
(E) Limitation of testamentary power : —The
following were the limitations of testamentary power of a
Roman testator
(1) Falcidian portion :—According to the law of the Twelve
Tables, the power of a testator in disposing of his property was
unlimited, In progress of time, various laws were enacted to
restrain his power. The most important was the Falcidian law
passed in 40 B. C. It was enacted by this law that no one should
dispose in legacies more than three fourth parts of his estate,
so as to secure to the heir at least one fourth of the succession.
This fourth was called the Falcidian portion or quarta
Falcidia. The fourth part was estimated according to the value
of the estate at the testators death, after deducting debts and
the necessar expenses of succession. If the legacies exceeded
three fourths of the estate, 'they suffered a proportional
abatement in favour of the heir. Thus the value of the estate is
400 aurei net. A is heir, and B, C, D and E each has a legacy of
100 aurei, thus exhausting the estate. The tex Falcidia
automatically reduces each legacy to 75 aurei making 300
aurei in all and A accordingly gets 100 aurei, being his quarta.
Falcidia of the liereditas. The lex Falcidia never applied to the
will of a soldier,
(2) Legitim :- Another limitation of the power of a testator
arose from leqitim (legitima portio i.e. legitimate portion)
which enjoined parents to leave a fourth of their estate to the
children, and children to leave a fourth of their estate to their
parents. Legitim was due to (1) the descendants of the deceased
who would have succeeded if he died intestate, (2) failing
descendants the ascendants of the testator, provided they
would have inherited abintestczto. Brothers and sisters had no
right to claim legitim, except when the testator had appointed
an infamous person to be an heir. If there were both children

and parents of the deceased, iegttim was only due to the
children because they excluded parents from the succession.
All the children, without distinction as to sex, had a right to
legitfrn. When there were only children of the first degree, the
legiUm was divided among them in equal shares. But if there
were at the same time children of the first degree alive and
grand children descended from others deceased, the legitim
was divided according to the number of the children of the
first degree who were alive and of those who, being dead, had
left issue to represent them. These grand-children got the legal
portion which the person whom they represented would have
had if he had survived the testator. The second order of
persons to whom legttim was due, failing descendants, were
the nearest agnates. If there were paternal and maternal
ascendants in the nearest degree, the legitim was divided into
two parts, one for the ascendants on the fathers side, and the
other for the ascendants on the mothers side.
At first the Legitim after the analogy of the Falcidian
portion was, in all cases, a fourth of the estate which would
have fallen to the heirs at-law ab Lntestato, whatever might be
their number. But Justinian raised the amount of the leg Lttm
for descendants at least to one-third of he succession, if there
were four or a less number, and to one-half when there were
than four.
Leg(t(m was only due after the death of Ihe testator, and
those who claimed it must bring into account whatever they
received under the testament, whether in the character of
heirs or by legacy, or donatio mortis causa. Generally donatio
inter vivos was not reckoned, unless they were given expressly
under that condition. Justinian ordained that the legitm
should be left to children in the character of heirs only and
not as legatees or donees. But if anypart of the inheritance,
however small, was left to them, they were only entitled to
recover by action what was necessary to make up the legitim.
7. Querela inofficiosi testainenti (The plaint of an

unduteous will) :—This was an action by which some near
relatives could challenge the validity of the testament as
being contrary to natural duty (inofficiosum) and get it set
aside. When such relatives were unjustly disinherited in a
testament, it could be challenged by them as undutiful by the
action of law called the querela inoffIcosi testamentt on the
supposition that the testator must be presumed to be insane
when he drew up the will and on this ground the testament
was set aside. It did not mean that the testator was really
insane but it was presumed that he was insane at the time of
making the will. The querela (plaint) was brought before the
centumviral court by those persons who were entitled on
intestacy, such as descendants, ascendants, brothers and
sisters.
The following conditions had to be satisfied for a
successful querela
(1) There must be an heir against whom the action was
brought, so that the querela did not lie until aditlo
(entry of the heir).
(2) The claimant must show that under the will he failed
to obtain one-fourth part of his share on an
intestacy.
(3) That lie could not get his rights in any other way. If,
for example, being praeterllus (heir not disinherited
in the will) he could get bonorum possessio from the
praetor, the querela was not available.
(4) That he did not deserve to be disinherited or omitted.
A claimant, therefore, would be defeated if the
instituted heir could prove that the disinherison was
due to gross ingratitude towards the testator.
(5) That he had not acquiesced the testator's decision,
e.g. by accepting a legacy.
(6) Not more than five years had elapsed since the death
of the testator.
The effect of the querela, if successful, was in the ordinary

case to upset the will altogether and the claimant got his share
as on an intestacy. Under the law of Justinian, if it was
successful, the will was not wholly void. The institution of the
heir was rescinded but the legacies, fidei-commissa,
appointment of guardians and other provisions of the will
remained valid. If it was unsuccessful, any benefit given to the
claimant lapsed to the Jiscus (treasury). But if a tutor brought
the querela in his ward's name or on behalf of the ward
(because the father of the ward left nothing for him) and
failed, the tutor would not forfeit any legacy given to him by
the will.
Under the law of Justinian as provided in his Institutes

the querela should only be brought where the claimant had
received nothing at all under the will. If the claimant had
obtained anything under the will, however small, he could
only bring an acto ad suppleridan leg itiniam against the heir,
which did not upset the will but enabled the claimant to
recover the balance that make up one-fourth of the share
which he would have taken on an intestacy. By the 18th
Novel, Justinian enacted that a testator with four children or
less must leave for them at least one-third of his estate. If he
had more than four he must leave at least a half. Finally by
his 115th Novel, Justinian provided that an ascendant was
bound the institute as heirs those descendants who would
have taken on an intestacy, and vice versa, unless one of the
definite legal grounds to justify the disinherison was stated in
the will and could be proved.
8. How a will became invalid :—When a will was void
ab initio, it was called injustum or non jure factum. This
might happen because (1) the testator had not the testament(.
factio activa, (2) the will was not made in accordance with the
requirements of law e.g. some of the witnesses were not lawful
witnesses, or the testator failed to institute or disinherit a son
in his potestas. In such cases the testament might be rescinded
and declared null by judicial sentence for non-compliance

with the rules indispensable to its validity. A will could
become invalid by some after event in the following
circumstances :-
(1) The testator could revoke a will. By the Roman law, a
will was revoked making a new one, even though it made no
express mention of the first. Two testaments could not subsist
together. So the second will annulled the first but in order to
have this effect, the second testament required to be complete.
Without making a new will, the testator could revoke a will by
cancelling or destroying it with that intention.
(2) Ruptum :—A will became invalid by the birth of a
posthumous child or by adoption of a child after making of
the will. In such a case the will was said to be ruptum. But in
the time of Justinian, a will was not invalid by the birth of a
posthumous child, because such person could be instituted or
disinherited in anticipation. In his time if a testator
arrogated a person or adopted in plena, his will was revoked
by the quasi-agnation of such heir.
(3) Irritum :—A will became invalid when a testator
suffered capitis deminutio before his death. In such a case the
will was said to be irritum. But if the testator recovered his
status before his death, the praetor might sustain the
testament by granting bonorum possess to secundum tabulcis
to the instituted heir.
(4) Destttutum :—A will became invalid, when the heir
instituted did not or could not accept the will. In such a case
the will was said to be destitutum. But under the law of
Justinian legacies and trusts could not be defeated by non-
acceptance.
(5) Querela inofficiosi testarnenti A will became invalid
by a successful querela inofficiosi testamentL It was said to be
inoffictosum when the will did not give a share to those who
should have had definite share of the hereditas.
Roman-13
9. Codicil :—ln modern law a codicil is a supplement to a
will. It is made after the execution of a will in the same way as
a will is made.
In Roman law codicils were first introduced and enforced
by Emperor Augustus and they continued down to the time of
Justinian. They were made in the form of requests to heirs to
give to others either some specific articles or a fraction or
even the whole of the inheritance. There was no particular
form to make a codicil but by the time of Theodosius II all
codicils were required to be witnessed as wills by seven
witnesses. Justinian reduced the number to five and also
enacted that if a codicil had been made with no formality, the
person for whom it was made might sue but would fail if the
heir denied the fact on oath. By codicil a legal heir could not
be appointed or disinherited, nor did the validity of codicil
depend upon proving legit(m. If there was no testament,
codicil operated on the heir by way of trust. But if there was a
testament, a codicil was considered a charge upon the
testamentary heir, and was made to stand or fall with the
will. If a codicil was made before a testament, it was presumed
to be cancelled, unless the contrary was proved. It was usual,
therefore, in a will to confirm a codicil previously made, if the
testator wished them to be carried out.
Under the Roman law a codicil had no connection with a
will. A codicil might be annexed to a will or it might be
independent of any will. But a practice arose of adding a
codicillary clause to wills, by which the testator declared that
if his will failed to take effect, it was to be construed as a
request made by codicil and so it was binding on the heirs ab
intestato. The codicillary clause healed every defect in a will.
If the beneficiaries could not sue under the will, they could
compel the heir ab intestato to execute the provision of the
instrument as trusts.
10. Legacy :—A legacy was the gift of some specific thing
or things to a person named in the will or codicil. Usually the
thing was a res corporales, e.g. a horse or furniture but not
necessarily so. It might be the release to a debtor of a debt
owed to the testator, or it might be a gift of the right the
testator had to receive payment from a third person, or it
might consist of an obligation to do something imposed upon
the heirs, e.g. to build a house for the legatee.
A legacy was not an instance of universal succession. It
was a means of acquiring res s&igufrie. The legatee was not an
heir. He did not stand in the shoes of his predecessor but got
specified rights with regard to a specific thing. A singular
succession, therefore, never transferred the persona from one
individual to another. Legacies and fidei-commissa are the
chief instances of singular succession. The subject may be
considered under the following heads
(A) How a legacy could be given.
(B) What could be given as a legacy.
(C) The construction of legacies.
(D) Restrictions upon the amount of legacies.
(E) Lapse of legacy.
(A) How a legacy could be given :—There were four
forms in which legacy could be bequeathed :-
(1) Per vindicatonern (by vindication) :—A tegatum per
vindicatonem was created by the use of the words "do lego" (I
give and bequeath). This form of legacy was a direct gift to the
legatee and did not require the heir to hand over the legacy to
the legatee. So the legatee became owner immediately the heir
entered into succession. The legatee could bring a real action
(vindicatio) for the legacy, whether in the hands of the heir or
of some third person. By this method a testator could only
bequeath things which belonged to him. ex jure quiritum
both at the time of making the will and at the moment of his
death. The only exception was made in case of resfungLbles. In
this case the ownership at death was enough. Where the same
thing was given in this form to two or more persons, each took
a share, and if any one failed to take, his share accrued to the
other legatees.
(2) Per damnationem (by condemnation) .—A legatum per
damnationem began with 'Heres rneus damnas esto' (Let my
heir be condemned to give). This was not a direct gift of the
thing to the legatee, but a personal obligation was imposed on
the heir to do something for the legatee. The legatee had an
action not to claim the thing but an action would lie against
the heir to compelhim to carry out the duty which the testator
had imposed. The duty of the heir was to transfer the things to
the legatee. If it was a res maricipi, it was transferred by
manctpatio or injure cessio; if it was a res nec rnanctpi by
traclitio. If the thing was res mancipt and the heir transferred
it by traditio, the legatee ultimately acquired dominium by
means of usucapio. -
The advantage of this form of bequest was that the testator
could give by this method his own property as well as property
belonging to third person. When the property belonged to
others, the heir was bound to buy and convey it to the legatee.
Under this form a future property could be bequeathed e.g.
future crops, a child to be born of a slave woman. The testator
might not merely direct the heir to hand over something to
the legatee but to do some act for him, e.g. to build a house for
him.
If the same thing was given under this form to two or more
persons, each was entitled to a share, but if any one failed to
take, his share did not accrue to others. The lapsed share
belonged to the heir.
(3) Sinendi modo (by permission) :—A legatum sinendi
modo began with ".s(nendi rnodo" e.g. Let my heir be
condemned to allow Lucius Titius to take and have for himself
the slave Stichus." The form was a modification of legatum.
per damnationem and instead of obliging the heir to give, it
permitted the legatee of take. The heir could not be compelled
to make a formal transfer to the legatee by mancipatio but it
was enough if he allowed the legatee to take it.
Gaius tells us that a legacy of this sort was better than one
given by vindicattonern because by this method a testator
could give not only his own property but also the property of
the heir which was not possible per vfrtdicationem. He could
not bequeath a res aUena as he could do by damnattoriem. So
it is less advantageous to damnationem.
(4) Per praecepttonem (by perception):—A legatum per
praecepttonerrt was created by the word 'praec(pito' which
means 'let him take before' i.e. before the division of the
inheritance. The form of that legacy was "Let Lucius Titius
pick out first (praectpito) the slave Stichus. "The Sabinians
held that a legacy could only be given in this form to coheirs.
The legatee was to take some specific item of the inheritance
before the division of the estate. According to this school a
legacy given to any person other than a co-heir was invalid.
The Proculians, on the other hand, held that a legacy given in
this way was in effect a legacy per vindicationem. So it was
possible to give even to a third person whose remedy was a
real action for the recovery of the thing. According to Gaius
the Proculian view was confirmed by Hadrian. According to
both the schools a legacy given under this form to two or more
persons entitled each to an equal share as in the case of a
legacy per vinclicationem.
Changes made by Justinian.—All the four forms
mentioned above were subsequently abolished by Justinian
and he placed all legacies on the same footing in order to give
effect to the wishes of the testator. He enacted that all
advantages enjoyed by Jideicoinmissa should be enjoyed by
legacies and all legacies might be left either in a testament or
codicil. The legatee could sue for the legacy whether it was in
the hands of the heir or of a third person. The rights of the
legatee were further secured by an implied mortgage (tacif a
hypotheca) over all the property which the heir himself
received from the inheritance.
(B) What could be given as a legacy :—The following

could be given as a legacy :-
(1) Any res which was not extra commercturn, whether
corporates or incorporates, could be given as a legacy. If the
testator was aware of the fact that the thing bequeathed
belonged to another the heir was bound either to purchase the
thing for the legatee or to pay its value to him. But if the
testator bequeathed the thing belonging to another under the
mistaken belief that it was his own property, the legatee could
not claim the thing or its value from the heir. In such a case it
was to be presumed that he would not have bequeathed the
thing had he known that it belonged to another.
(2) Bequest of debt by creditor :—A testator could bequeath
a debt due to him by a stranger, but the legacy was only
effectual if any sum could be recovered Irom the alleged
debtor. When the creditor bequeathed to a debtor the amount
due from him, it amounted to a discharge of the debt and the
heir could not sue the debtor or his representatives for its
recovery.
(3) Legacy of mortgaged property :—A testator could
bequeath a property which was mortgaged. In such a case, the
heir was bound to pay off the mortgage, unless he could prove
either that the testator was not aware of the mortgage, or that
the testator expressly charged the legatee to pay it off.
(C) The Construction of legacies :—(1) Errors in name
or description.—An error in the name of the legatee would not
vitiate the legacy. So also a mistake or false description (falsa
demons trat(o) of the thing bequeathed did not annul a legacy.
When a part of the description was sufficient to identify the
object or person and the remainder of the description was
unnecessary for the purpose, the superfluous addition was
immaterial. But if the whole of the description was necessary
and part of it was erroneous the legacy failed. Thus a testator
had two slaves, X, a baker, and Y, a washerman. He
bequeathed to his wife Y, the baker. If the testator knew the
Chapter—VT The Law of Succession 181
names of the slaves, Y would be the legacy. If he knew them by

their occupations and not by their names, X would be given.
On the contrary, if A bequeathed to B the sum Titius owed to A,
and Titius owed nothing, the legacy must fail, as there was
nothing to determine the legacy except the amount due by
Titius. Similarlya mistaken inducement (falsa causa) did not
vitiate a legacy. Thus when a testator said 'To Titius, because
in my absence he looked after my business, I give and leave
Stichus," or "To Titius, because by his advocacy I was cleared
of a capital charge, I give and leave Stichus." The legacy took
effect, although Titius never managed any business for the
testator, and although his advocacy never cleared him. But if
the heir could prove that the testator would not have left the
legacy but for his erroneous belief, he could defeat the legatee
on the ground that his claim was against good conscience.
(2) Vesting of legacies :—The legatee's power to dispose of
the bequeathed property depended upon the particular terms
of the bequest. Whatever might be the nature of the legacy, no
right accrued if the legatee died before the testator. If the
legacy was pure and simple without any condition attached,
the right to it vested in the legatee and would transmit to his
representatives by his surviving the testator, even though it
should not be payable till a future period and the legatee
should die before the term. When the legacy was conditional
and if its efficacy depended upon an event or contingency, the
legatee acquired no right to the legacy, if he died before the
fulfilment of the condition. If no time was mentioned, the
legacy became due immediately after the heir accepted the
inheritance. The estate of the testator was primarily liable for
his debts but if he died insolvent, the legacies were. not due.
(3) Accretion among legatees :—If the same thing was
bequeathed to two or more persons, either jointly or
separately, each took an equal share, and if any of them pre-
deceased the testator, or failed to take his portion, it fell by
accretion to the rest. But if one of the co-legatees only failed
after he had acquired right to the legacy, it descended to his
heirs.
(4) General bequest :—When a testator made a general

bequest of his jewels, pictures, statues, etc., the legacy might
be increased by the testator by adding to the things
bequeathed or diminished by his selling or otherwise
disposing of a part of them. In either case the bequest
subsisted for what remained. Similarly the legacy of a herd of
cattle or flock of sheep might be increased or lessened by
supervening changes after the testament. The legatee was
entitled to get what remained at the time when the bequest fell
due, although all the animals composing the original flock
might be different from what they were at first. If the flock
was increased after the date of the testament, the legatee got
the benefit of it; on the other hand, if the flock was reduced to
a single sheep, he was entitled to claim it. But if the thing
bequeathed was so completely changed in its nature or
condition from any cause that it did not agree with the
original description, the bequest became ineffectual. Thus if
after leaving a legacy of a flock of sheep, none of the animals
remaind alive at the testator's death, the legatee had no right
to claim the hides or the wools. Similarly if the testator
bequeathed the ship which was broken into pieces before his
death, the legatee could not claim the materials.
(5) Specific legacy.— When a testator bequeathed a

determinate or specific thing (e.g. my black horse), then upon
the entry of the heir the legatee became owner. If a testator
bequeathed simply a horse to be taken from many horses in
his stable, how the selection was to be made. This might vary
according to circumstances. If the right of selection was given
to the legatee, he could choose the horse which he considered
most valuable. If the choice was left to the heir, he could
exercise his discretion with due regard to the will. If no choice
was given to either, the heir could not be compelled to give the
best thing nor the legatee could be compelled to accept the
worst. If a quantity of anything was bequeathed, the legatee
was simply a creditor of the heir for the amount. By a legacy of
20 arirei, the relation merely of debtor and creditor was

established, but a legacy of all the aurei in a chest made the
legatee owner of the particular coins.
(6) Restraints on alienation and marriage.—A testator
could not bequeath property and at the same time forbade the
legatee to alienate it. But according to a rescript of Antonius,
although a general prohibition to alienate was void, yet, if the
restriction was made in the interest of a limited class such as
children, freedman, heirs, or any specified person, it was
upheld without prejudice to the creditors of the testator.
Similar rule applied to conditions in restraint of marriage. If
the legatee or heir was forbidden to marry anybody at all, the
legacy or testament was perfectly good, and the restriction
was null and void. But a condition that the heir or legatee
should not marry a particular person or persons was good.
(D) Restriction upon the amount of legacies. — If a
testator left so many legacies leaving nothing for the heir, the
heir would refuse to enter into inheritance and in such a case
the legacies fell to the ground. While the heir (if e.g. a suns
1eres) might be entitled to the property as on an intestacy, and
took it free from legacies. To prevent a catastrophe of the sort,
three several legislative Acts were passed, of which the lex
Falcida (40 B.C.) only succeeded in its object. It required that
the legacy must not exceed three-fourth of the estate and at
least one-fourth must be left for the heir.
(E) Lapse of legacy.—A legacy might fail in the

following circumstances
(1) When the will became void or inoperative. Thus
when the heir refused to accept the will the legacy
failed.
(2) By revocation.—A legacy might be revoked either
expressly or impliedly. A legacy might be revoked
expressly by a will or codicil, by a declaration that
the legacy was not to take effect. At the time when the
old formula was necessary to give a legacy, such

legacy had to be revoked in an equally formal
manner, e.g. non do lego. But long before Justinian
the revocation could be made informally. It was
implied revocation if the testator sold the thing or
made a gift of it to another afterwards, or when a
serious enmity arose subsequently between the
testator and the legatee.
(3) By the destruction of the legacy.
(4) If the legatee died before the testator.
11. Fidei-comm jssa.—p dej-commjssa (trust) owed their
origin to the stringency of the ancient law of wills. The
disposition of property by will was a matter of extreme
formalities. The strict rules of capacity to take under a will
excluded many persons whom a testator might wish to
benefit. As a result many persons, like the foreigners, exiles,
etc., could not take under a will. So fidei-commssa was
introduced to 'evade the strict rules of the civil law and to give
property to those who could not take under a will. In such
circumstances it was a common practice for a testator to
direct the heir in the will to hand over the property to some
other person who was the real object of the testator's bounty
and who, although prohibited from being made heir, was not
prohibited from receiving a transfer of property from a living
person by way of gift. Such directions were made to the heir by
a request in the will, sometimes by a separate document
(codicil), and sometimes by word of mouth. The testator hoped
that the heir would in honour feel bound to carry his wishes.
He comirutted the matter to the good faith of the trustee. Hence
the name fide i-comrnissa, whatever the form chosen such
gifts were not originally enforceable at law. It was Augustus
who ordered the consuls to enforce these informal gifts. When
the measure proved popular, a regular Jurisdiction was
established over these informal gifts and a special praetor
was appointed to deal with them. He was called the praetor
fidei-commissarus. The person who made the trust was

called fidei-comm,ttens, the person upon whom the trust was
imposed was called the fiduciarius (fiduciary), and the person
to be benefited was called the ftdez-cornmssarius or fide-
commissary (beneficiary).
As the direct heir was free to accept or reject the
succession, there were reasons to apprehend that he would
always repudiate it when he was required to restore the whole
estate without deriving any benefit from it. To obviate this
difficulty and to incite the trustee to enter into the
inheritance senatus consultum Pegasianum (73 A. D.) was
passed. Under this law the trustee was allowed to retain a
fourth part of the inheritance, but on the other hand he was
bound to accept the succession in order to discharge the trust.
All the debts affecting succession were divided between the
trustee who retained the Pagasian portion, and the
beneficiary according to their respective interests.
12. Difference between a legacy and a fidel-
conimissa,—The following were the chief points of original
difference between legacy and fidei-commi.ssa.
(1) A legacy might be given in a formal manner, whereas
any informal declaration of intention, even a nod
might be enough to constitute a trust.
(2) A legacy was bequeathed in imperative terms
whereas a trust was created in the form of request to
the trustee.
(3) A legacy could not exist apart from a will whereas a
trust could be imposed upon a man's intestate heir.
(4) A legacy could be claimed by an action at law;
whereas the action allowed for trust was an
equitable one and was given by the praetor in the
exercise of his extraordinary jurisdiction.
(5) Any one might be the beneficiary under a trust; while
a legatee might be disqualified as not having
testamenti factio with the testator or might be

disqualified under the lex Vocona or the leges Julia
et Papia Poppaea.
(6) The lex Falciclia applied to legacies only, whereas it
did not apply to trust. The whole succession might be
the object of trust, so that the heir could get nothing.
These distinctions disappeared in the later law when the
forms of legacy were abolished and the true intention of the
testator was given effect to. The principle of the Falcidian law
was extended to trusts by the senatus. consultum Pagastanum.
In Justinian's time trusts and legacies were placed exactly on
the same footing and were given exactly the same remedies.
13. Intestate Succession. —The intestate succession is a
more ancient institution than the testamentary succession.
Intestate succession is a succession to the estate of a person
who died without a will or left a will but it failed to take effect.
The law appoints the heir to succeed to his property according
to certain rules under the Twelve Tables; succession ab
intestato was based on patria potestas and agnation. It was
confined to those persons who could trace their relationship
through the male line. The law of intestate succession may be
conveniently considered under three divisions :-
(1) The order of succession according to the Twelve
Tables or thejus civtle,
(2) The order of succession according to praetor.
(3) The order of succession under Justinian.
(1) The order of succession under Twelve Tables.—
The order of succession under the Twelve Tables was as
follows :-
(a) Siji heredes.— On a man's death the first class of
persons entitled to succeed to his hereditas were his sut
heredes. They were the persons who were in his potestas at his
death, and became sujurts after his death. They inherited
according to the doctrine of representation. The children of a
pre-deceased son took his place and took the share what their
ancestor would have taken. Thus if A died leaving a son B, and
two grandchildren X and Y by a pre deceased son C, the
property would be equally divided between B on the one hand
and X and Y on the other. X and Y represented their father C.
The daughters under power succeeded like males, and they
took an equal share. The adopted children inherited with the
natural children. The wife in manus would inherit the
property of her husband along with her children. Sui heredes
took equal shares and there was no distinction in shares
between males and females. The emancipated children and
daughters under the manus of their husbands were excluded
from inheritance.
(b) Agnati.—Failing suf heredes, the hereditas went to the
'agnati proximi' i.e. those agnates (other than SuL heredes)
who were nearest in degree to the deceased at the time of his
death or at the time of failing of the will, e.g. brothers, sisters
and uncles. In other words the agnates were those who would
have been subjected to the same potestas if the common
ancestor was still alive. Among agnates the nearest in degree
excluded the more remote. If there were several agnates of
equal degree, they took equal shares.
(c) Gentiles.—Failing Sul heredes and agnati proxim, the
succession devolved on the gentiles. They were the persons
who bore the same name with the deceased. They must have
descended from free persons, and not from slaves. They must
not have passed by adoption into another family. If they did
so, they took the name of the gens to which they had
emigrated: they remained no longer in their original gens.
Thus community of name and purity of blood were the
essential characteristics of Roman gentiles. The right of the
gerts to succeed had become obsolete in the time of Gaius and
the persons connected by the tie of blood were preferred.
Defects of intestate succession under Twelve
Tables.—Gaius has pointed out the following defects of the rule
of intestate succession under Twelve Tables
(1) An emancipated son could not succeed because he

was not a member of the family.
(2) Agnates undergoing change of status lost agnation
and along with it the right of succession.
(3) If the agnati proximi failed to take, the more remote
had no claim.
(4) Female agnates, other than sisters, could not
succeed.
(5) Cognates or relations by women were wholly
excluded, so that even the mother, who was not
married in manu, had no right of succession to her
children and vice versa.
Bonorum possessio. —The second division of intestate
succession before Justinian comprises the innovations
introduced by the praetor who relaxed the severity and defects
of the civil law rules of intestate succession by giving
bortorum possessio (possession of estate) through his edict to
those persons who were excluded from inheritance by the
strict rules of jus dvile. The praetor altered the whole law of
succession by the doctrine of bortorum possessto. He called to
succession (1) all the children without distinction, whether
emancipated or not by the edict unde Ubert, (2) the wife not in
martu and the husband by the edict unde vr et uxor, (3) the
more remote agnates, though emancipated, by the edict wide
1egtmt, (4) the cognates by the edict wide cognati, and so
forth. The bonorum possesso was a universal succession in
equity. It was the equitable remedy by which the praetor gave
the beneficial enjoyment of the estate to persons coming
within the several classes whether such persons were the legal
heirs or not. The boriorum possessor had no status in the eye
of the law. The person to whom the possession of the estate of
the deceased was given by the praetor was called the bonorum
possessor (possessor of estate. The various persons called to
succession were not the heirs because the praetor could not
directly legislate and make them heirs against the civil law
Chapter—vi The Law of Succession 189
but he could give possession of the succession of a deceased

person to those who could not take at civil law and allow
action to retain that possession as if they had been heirs.
After the expiry of the definite time the bonorum possessor
acquired quiritary ownership of the hereditas by
u.sucapio.
The formal application for possession of the property of
the deceased was made by a petition to the praetor. The
ascendants and descendants of the deceased were allowed one
year and all other persons 100 days, within which the claim
must be made. They lost their right if the application was not
made within the limited time. The grant carried with it what
may be called equitable heirship. which might be permanent
(cum re) or temporary (sine re). It was cum re
when the
bonorum possessor was not liable to be ejected by a person
with a better title; it was sine re when he was liable to be
ejected in the long run by the claim of the heres.
The praetor allowed the following remedies to the
bortorum possessor
(i) The interdict quorum bonorum.—By means of this
action he could enforce his right and retain
possession of the estate.
(ii) Hereditatts petitto possessorjo.—Thjs was an action
analogous to the hereditatis petitlo of the civil law
heir. It was available against the true heir and it
would be effective only if the bonorum possessio was
cum re (permanent).
(iii) He could sue the holders of property of hereditas by
an actiofictitiae, as if he was the heir.
(iv) He could sue debtors and be sued by creditors by
actions with a similar fiction.
(2) The order of succession according to
praetors.—The praetorian edict called persons to the
succession in the following order
(a) Boriorum possessio unde Uberi.—By
this edict, all
children whether under potestas or emancipated, were
Roman Law Chapter—Vi
190
allowed to succeed. When the praetor called emancipated
children to the possession of goods, he obliged them to throw
into the succession all the separate property they had
acquired since their emancipation except their peculium
castrense and quasi-castreflse. This was called cotlatio
bonorurn. The object of this rule was to secure an equitable
distribution of property among the heirs of the same class.
The same principle was afterwards extended to daughters,
who were bound to bring into account the marriage portions
they received from their paterfamilias. Emperor Leo extended
this obligation to the donatto propter rtuptias.
(b) Unde legitimL—If the children failed to take, the
possession went to the agriati proximi and those to whom
possession would have been given along with the agnates in
accordance with the rules of the jus civile.
(c) Unde cognatL— If agnates failed, the praetor gave
possession of goods to the blood relations of the deceased that
were not included in the above classes. This class included (1)
all children who were given in adoption, (2) agnates who had
suffered capitis demiruitto, (3) more remote agnates excluded
by the cignati proximi, and (4) other relatives through females.
All these persons could not claim at once. The rule was that
those who were nearest in blood to the deceased shared
equally, and there was no representation. There was one
limitation that a cognate beyond the sixth degree had no
claim in the succession.
(d) Vir et uxor.—Failing the cognates, the praetor granted
bonorum possessio to the surviving widow or widower i.e. the
husband had the right to succeed to the property of his wife
and vice versa.
Imperial changes in intestate SUCCeSSiOn before
Justinian.—Some changes were made in the law of succession
before Justinian by the following statutes :-
had no
(a) Sc. TertuWaflUm.A mother, not in rnanu,
claim to succeed to the estate of her children either in civil
law or in praetorian law: she was only a cognate. To cure this

defect sc. Ter-tullianum was passed in 158 A.D. during the
reign of Hadrian. Under this Act, freeborn women having
three children or freed women having four, were entitled to
succeed to the estate of their children. This enactment
established an order of succession as follows:—(1) children, (2)
the father if not in another family, (3) brothers and sisters, (4)
mother and sister, the mother taking half, or all if there were
no sisters. Thus while brothers excluded the mother, sisters
alone did not. The child might be illegitimate and capitis
deminutio minima of the mother was no bar.
(b) Sc. OrJitianum.—Under the old civil law children of a
woman had no claim to succeed to the estate of their mother
but they were cognates at praetorian law. This enactment,
passed in 178 A.D., gave them the first claim to succeed to her
estate in preference to all agnates, even if they were
illegitimate, and even though they had suffered cap itis
deminutio.
(3) The order of succession under Justinian.—
Justinian remodelled the rules of succession and made them
simpler by the 118th and 127th Novels. Consanguinity being
the basis of Justinian's law, blood relations succeeded ab
intestato. Except in the instance of the surviving spouse of the
intestate, affinity or relationship by marriage gave no right of
succession. There was no difference between agnates and
cognates, the nearest in degree excluded the more remote.
Certain persons not connected with blood, were allowed to
succeed no special grounds. Justinian regulated succession
among three classes:
(1) Descendants.
(2) Ascendants along with collaterals i.e. brothers and
sisters.
(3) Collaterals.
(1) Descendants.—Descendants excluded all others. If a
person died intestate leaving lawful children, they all
Roman-14
192 Roman Law Chapter—VT
succeeded to him by equal share without distinction of sex,

and if there was only one child, he took the whole estate. A
descendant of either sex or any degree, was preferred to all
ascendants and collaterals. An adopted child was counted as a
natural child. The descendants in the first degree, i. c, sons
and daughters, excluded their own issue. But if a descendant in
the first degree died before the intestate there was
representation. The children of the descendant took per
stirpes the share their parent would have taken had he
survived. For example, A dies leaving a son B and two
grandchildren by a predeceased son C, B takes half the estate
and the grandchildren the other half per stirpes, as
representing their deceased father.
(2) Ascendants with collaterals.—Failing descendants,
ascendants took along with brothers and sisters of the whole
blood. If there were no descendants, the father and mother
and other ascendants excluded all collaterals from the
succession, except brothers and sisters of the whole blood, and
the children of deceased brothers and sisters, who might
succeed concurrently with ascendants. There were three cases
affecting succession in the ascending line, viz.—(a) The
succession of ascendants alone, when there were no
collaterals falling within the favoured category, (b) The
concurrence of ascendants with brothers and sisters of the
whole blood, (c) The concurrence of ascendants with brothers
and sisters of the whole blood and also with the children of
deceased brothers and sisters.
(a) Succession of ascendants alone—When ascendants
stood alone, the father and mother succeeded in equal
portions, and if one of them survived, he or she succeeded to
whole estate. There was no representation among ascendants,
and the nearest in degree excluded the more remote so that the
father alone or the mother alone, would exclude
grandparents. When several ascendants occurred in the same
degree, some on the father's side and some on the mother's
side the succession was divided in two equal parts, one of

which was given to the paternal ascendants and the other to
the maternal ascendants per lineage, though the number of
individuals should be less on one side than on the other.
(b) Succession of ascendants with brothers and sisters.--If
there were brothers and sisters of the whole blood, they were
called to the succession along with the father and mother or
other ascendants, and the estate was divided among them in
capita (equally), that is, according to the number of persons.
Thus where the deceased left father and mother, and a brother
and a sister, each was entitled to a fourth of the succession.
(c) Succession of ascendants with brothers and sisters and
also with children of deceased brother or sister.—By the 118th
Novels the children of a deceased brother or sister were not
admitted to succession along, with ascendants or surviving
brothers and sisters. But this was corrected by the 127th
Novels, which allowed them to succeed along with ascendants
and surviving brothers or sisters, so as to take by
representation the share which would have fallen to their
parent had he or she been alive. This privilege of
representation did not extend beyond the sons and daughters
of brothers and sisters. It was a doubtful question, whether
these nephews were entitled to succeed along with ascendants
alone, when there were no surviving brothers of the deceased.
By the 118th Novels these nephews were excluded by
ascendants, and by the 127th Novels they were only expressly
called when brothers succeeded along with ascendants, from
which it is inferred that they were not admitted with
ascendants alone.
(3) Succession of collaterals.—As a general rule,
collaterals who were nearest in degree to the deceased were
called together to his succession, and excluded those who were
more remote.
Brothers and sisters of full blood.—If a person died leaving
neither descendants nor a cendants, his brothers and sisters
of the full blood succeeded to his estate in equal shares. But if
the intestate left brothers or sisters and also nephews or
nieces by a deceased brother or sister, the latter persons would
succeed, along with their uncles and aunts, to the share which
their parent would have taken if alive. Among collaterals the
right of representation did not extend beyond the sons and
daughters of brothers and sisters,
Nephews.—If the intestate's brothers and sisters were dead,
and nephews alone succeeded, it was a question how the estate
was to be divided. Some contended that it must be divided in
capita, and others in stirpes.
Half brothers and sisters.—On the failure of brothers and
sisters of the full blood and their children, the brothers and
sisters of the half blood succeeded, whether they were by the
same father or by the same mother. And if any of these
brothers or sisters of the half blood died leaving children, the
right of representation was extended to them, so as to enable
them to succeed to the share which would have fallen to their
parent if alive.
Other relations nearest in degree.—Failing these, the next
of kin were called to the succession according to their
proximity in degree. The nearer relations excluded the more
remote. If there were many persons found in the same degree,
whether on the fathers side or on the mother's, the estate was
divided among them in equal shares, according to the number
of persons.
Husband and wife.—In the last resort, when one of the
married persons died without leaving any relations, the
surviving spouse was called to the succession under the edict
of the praetor under v,r et uxor, which was confirmed by
Imperial Constitutions. They came in after all the collateral
relations and saved the estate from lapsing to the fiscus
(treasury).
A question arose why a widow was excluded in favour of
remote blood relations. The answer was probably that the
institutions of dos and donato propter rtuptias provided

sufficiently for her.
Widow's right of succession. —In the law of Justinian a
widow who was poor and unprovided (i.e. had no dowry) had a
right to share in the succession to the extent of one-fourth of
her husband's estate in full ownership if there were no
children or less than three children. If there were more than
three children, she was entitled to participate with them per
capita i.e. in equal shares but she enjoyed a life-interest in her
share and was bound to preserve it for the children.
Natural children.—If a man had no lawful descendants
or as cendants, he might by will give his whole inheritance to
his natural children i.e. those born of a concubine or to their
mother. But if he had lawful children, he could only leave one-
twelfth to the natural children and their mother. If the father
died intestate, without leaving a lawful wife or lawful issue,
his natural children and their mother were entitled to receive
one-sixth of the succession, and the remainder would go to the
lawful heirs.
Treasury ultimate heir.—On the failure of all heirs and
successors, the succession devolved on the treasury, subject to
payment of the debts of the deceased to the extent of the value
of the estate.
Succession to freedman.—According to Twelve Tables,
a slave properly freed (ciuis libertus) had full power to dispose
of his property by will without giving anything to his patron.
The Twelve Tables called the patron to the inheritance if the
ltbertus died intestate without leaving any suns heres (natural
heir).
Under the praetor's scheme of bonorum possessio, the
patron's position was improved. In the event of the Ubertus
dying leaving natural children whom he had not disinherited,
no change was made, they were in equity entitled to priority to
the patron. But if there were no children or they had been
disinherited, the praetor granted the patron bonorum
possesso of half of the estate, whether the ltbertus had left a-

will giving him nothing or less than half, or had died
intestate. And if the Ubertus left no sui heredes at all, the
patrons civil law claim to the whole hereditas remained. The
next change was made by the lex Papia Poppaea (9 A. D). The
rights of succession under this law varied according to the
number of children. If the Ubertus left two children as heirs,
the patron and each child obtained one-third of the hereditas.
If there was one heir, the heir and the patron each took one-
half.
Justinian amended the law in the following manner:—A
freedman with less than a hundred aurel might dispose of it as
he wished by will. If the estate was worth .100 auret and the
freedman left issue and made them heirs, the patron had no
claim. If there was no issue or there was issue but they were
disinherited, the patron could claim a third. If there was no
issue and the libertus left no will, the patron took the whole.
Finally the rules with regard to intestate succession, as settled
by Justinian, were as follows;—(i) Natural descendants of the
Ubertus, (ii) patron, (iii) patron's children, (iv) collateral
relations of the patron to the fifth degree.
Succession to Latini Juniani and dediticiL—Here
there was no question of succession. The Latini was said to
become a slave at his death. So his property reverted to his
patron or his heirs. The children of a Latini had no claim. A
senatus consultum Largiarturn (42 A. D) provided that if the
patron was dead, his children not expressly disinherited
could take the property of a Latin to the exclusion of extranei
heredes; The estates of dediticii belonged in all cases to their
patrons. Their child could never have a claim.
Succession to a fihius fainilias.—A fihiu.s might die
either in his ancestors power or as sui juris through
emancipation. If the son died in potestas, his father. under the
early law, took all his property. When the pecuUum castrense
was introduced, the son could dispose of it by will and under
Justinian he could also dispose of his peculium quasi-

castrense. But if he died intestate, his father took both the
peculium in the ordinary way. Justinian, however, postponed
the right of the father in this respect to the sons' children, and
his brothers and sisters. The son was unable to dispose of the
peculium profecticium even in Justinian's time, and his
father accordingly acquired it on his death in any event. The
father would succeed to the peculium castrense and
quasicastrense if the son died intestate, and even then after
the children and brothers and sisters of the fihius. In the
peculium advertticium he took a life interest and failing
children, brothers and sisters of the deceased he became the
owner of the properly.
If the son was emancipated he had full testamentary
capacity. If he died intestate, his property belonged to his sui
heredes,. failing them to his actual manittor (whether parens
or extraneus unless there had been a Jiducia in favour of the
father. In the time of Justinian, however, a jiducia was
implied in favour of the father in every emancipation and the
order of succession was first, the children of the deceased,
then the father, subject to certain rights in favour of the
mother, brothers and sisters of the deceased.
CHAPTER —VII
THE LAW OF OBLIGATION
1. Obligation.—Justinian defined an obligation as the
vinculumjuris (legal tie) between two or more persons which
binds some or one of them to do or not to do something for the
benefit of the other or others. The obligation is the bond or
chain with which the law enjoins together persons or groups
of persons in consequence of some voluntary acts. It is the law
which annexes the obligation which signifies a right as well
as a duty. The law of obligation defines right in personam as
distinguished from right in rem. A right in personam is
available against a determinate individual or individuals,
whereas a right in rem is available against the whole world.
Source of obligation—Under the Roman law the following
were the sources of obligation :-
(1) Contract.
(2) Quasi-Contract.
(3) Delict.
(4) Quasi-delict.
2. Contract.—A contract is a bilateral convention or
agreement; it creates an obligation which is enforceable at
law. A convention is a pact between two or more parties
regarding a matter in which they are interested. A contract is
a species of the genus pact. Every contract is a pact but every
pact is not a contract. An agreement enforceable at civil law is
called a pact; an agreement not enforceable at all, is called
nuda pacta which is unclothed with obligation,
According to Maine the origin of Roman contract can be
traced to nexum which was the earliest form of contract. The
nexum, like the mancipaUo, was a transaction per aes et
libram. The manctpatio was a sale and the nexum was a
money loan. The parties to the contract were said to be next.
Chapter—WI The Law of Obligation 199
The riexurri dates back to the time when there was no coined
money. The lender and borrower met in presence of five
Roman citizens above the age of puberty and a 1ibrpens
(holder of the balance). The lender put into the scale the metal
to be lent and the libripens weighed it and handed over to the
borrower. The lender declared that the borrower had become
his debtor. Thereupon the debtor was regarded as nexus to his
creditor i. e. bound in his own person to the creditor until the
loan was repaid. The creditor could enforce payment by
man us fnjectio (bodily seizure) and make the debtor a slave in
satisfaction of the debt. After the introduction of the coined
money the metal was no longer weighed out. The money loan
was paid directly by the lender to the borrower, but the formal
part of the nexum was retained. The lender merely touched the
scale with a coin and the formality continued to confer upon
the lender the right to subject the debtor to mart us injectto.
The nexum had fallen into disuse when a lex Poetelia of about
300 B. C, mitigated the severity of its remedy by substituting
execution on the borrowers goods for execution on his person,
and in the time of the classical jurists a money loan would
ordinarily be made by means of nuttuum. The nexum became
obsolete in the time of Justinian.
Elements of contract.—The essential elements of
Roman contract are the following :—(I) Capacity of the party,
(2) consensus of minds, (3) legally of object, and (4) causa.
(1) Capacity of the party.—The parties to a contract must
have the contractual capacities. The incapacities arose from
minority, insanity, sex, etc. In Roman law a minor was not
competent to contract without the auctoritas of the tutor.
Insane persons were absolutely incapable of making a
contract. Prodigals had limited contractual capacity. A
woman could not enter into a contract of suretyship. A person
under potestas could not enter into a contract with the
paterfamilias. A person above the age of 14 had full
contractual capacity, but if the contract did not relate to
200 Roman Law Chapter—Vu
pecuUum castrense or quasi-castrense the right under the

contract vested in the paterfamilias.
(2) Consensus of mind.—The minds of the two parties must
meet without which no agreement was possible. The consent
of the parlies must be free, there must not be any mistake or
fraud (dolus), metus (duress or intimidation) or violence in the
formation of a contract. According to jus civtle, an agreement
induced by fraud was valid, but later the praetor allowed the
plea of fraud (exceptio(dolt) to be raised by the defendant to
resist the plaintiffs claim under a fraudulent agreement.
Similar was the case with rnetus. Mistake as to the subject
matter of the contract made the contract void.
(3) Legality of object.—The object of a valid contract must
not be illegal or immoral. The object must be possible and
legal. Thus an agreement to kill a person was illegal and void.
The object must be determinate and useful to the promisee ; as
for example an agreement to sell a slave to the ownei of the
slave was bad.
(4) Causa.—The causa was the source of contract. It might
be (a) naWratis and (b) civilis. A causa rtaturahs was the
motive which induced a party to enter into a contract : as for
example, in a contract of sale the causa naturaUs was the gain
of the price by the seller. A causa cwllis was the form that
made an agreement binding in law; in a stipulation the causa
civilis consisted of the words pronounced.
3. Classification of contract.—In (the Roman law there
were four kinds of contract
(A) Contract re (real contract).
(B) Contract uerbts (verbal contract).
(C) Contract It tens (literal contract).
(D) Consensual contract.
(A) Contract re or real contract.—When an obligation
was created by delivery of thing (res), it was called contract re.
The essence of such a contract was that, at the time the
agreement was made, one party to the contract did all that he
was bound to do under the contract by transferring something
belonging to him to the other party. The binding force of this
contract was created by delivery of property. The contract was
executed by one party by part-performance and it left an
outstanding obligation on the other party to perform his
share of the promise.
Real contracts were of two kinds : (1) nominate and (2)
inno-mi-nate. The nominate real contracts meant those
contracts which had recognised names. The innominate real
contracts were those which had no such special names. They
were classed by Paulus under four general heads: (1) Do ut des,
e.g., A gives something to B in order that B may give
something in return to A. (2) Do ut facias, e.g.. A gives
something to B in order that B may do something for A. (3)
Facto ut des, e.g., A does something for B in order that R may
do something to A. (4) Facto utfacias, e.g., A does something in
order that B may do something in return.
In all cases it was essential that something should be
actually given or performed by one of the parties in order to
constitute an obligation against the other. The first one "Do ut
des" was an exchange (permutatio), which was perfected when
one of the parties had given a thing, in order that he who
received it might give another thing. In all such cases the
person who performed his part, had an option either to sue the
other party for performance by an action praescriptts verbts
or to renounce the contract and recover back the thing given
by him by the condictto causa data causa non secuta.
Classification of nominate real contract.—The
nominate real contracts were grouped under the following
heads :-
(1) Mutuum or loan for consumption.
(2) Commodatum or loan for use.
(3) Depositum or loan bailment.
(4) Pignus or mortgage.
202 Roman Law Chapter—VII
(1) Mutuum.—Mutuurn was a gratuitous loan without

interest for consumption of res fungibles i.e. things which
were dealt with by weight, number or measure e.g. money,
silver, gold. oil, wine, grain, etc. It was a contract whereby one
person transferred to another the ownership in a definite
quantity of res fungtbles on condition that the borrower will
return to the lender the thing of the same nature, quantity and
quality. In mutuwn the borrower became the owner of the
property; if it perished from any cause, the loss fell on him. In
a loan of corn, wine and other articles of the like nature, the
borrower must restore as much of the same kind and quality
as he received, whether the price of the commodity had risen
or fallen in the market. Should he fail to satisfy his
obligation he would be responsible to the lender for the value
of the article, having regard to the time and place when it
should have been delivered. The action under which the
lender established his claim against the borrower was called
condictio certi. By the sc Macedonianum, it was ordained that
any one who should lend money to a son under the power of
his father without the fathers consent, should have no action
for its recovery.
In a loan of money under mutuum, the borrower was not
obliged to pay interest on the sum received. If it was intended
that interest should be paid, a special engagement to that
effect by the debtor was indispensable. The rate of interest was
12 p.c. per annum at the end of the Republic. After many
changes, Justinian at last regulated the rates of interest by a
scale, which varied according to the condition of the
creditors. Persons of illustrious rank could lend money at 4
p.c., ordinary persons at 6 p.c. merchants at 8 p.c. and for
maritime risks the interest was fixed at 12 p.c. where money
was lent to buy merchandise that was to be shipped at the risk
of the lenders until the goods arrived at the port of
destination. Roman law did not allow compound interest.
Chapter—VII The Law of Obligation 203
(2)Commodatum.—Cmmodatum was the loan of a thing

for use. It was a contract whereby one person gratuitously
transferred to another the custody and use of a thing on
condition that the thing was to be returned in specie. The loan
was gratuitous i.e. the lender received no reward for the loan.
If any thing was paid for use the transaction would be one of
hiring (locatto conducto) and would not be commodaturn.
Under comrnodaturn the borrower (commodatarius) did not
get juristic possession of the thing. He had merely de facto
possession or detento of the thing. There were important
differences between the liability of the person who received
goods under a mutuum and the commodatarius. The former
being ctorntnus was liable to return the equivalent in value,
even though the goods were destroyed by pure accident. The
borrower on the other hand, though bound to show as much
diligence as a bonus paterfarnllias. was not liable for accident
not arising from any fault on his part.
The lender (commodans) could enforce his rights against
the borrower by the actio commodati directa, These rights
were—(1) to get back the thing when the time for which it was
lent had expired and (2) that the borrower should display as
much diligence as a bonus paterfamilias and he should keep
the thing in fair repair and should not use it for any purpose
other than that specified. If he did so use it, he was liable for
tur turn usus (theft for use).
The borrower had the acto commodati contraria against
the lender in two cases: (1) if he had been put to extraordinary
expense in relation to the thing lent; (2) if through the wilful
wrong or negligence of the lender the thing injured the
borrower.
(3) DeposUum.— Deposaum was a contract by which the
owner entrusted a thing to another to keep it gratuitously and
to restore it on demand. The property and the risk remained
with the depositor. If the thing perished accidentally the loss
fell on him. The depositary was bound to preserve the thing
with reasonable care, and to exercise the same vigilance as he

did in his own affairs. He could not use the thing unless
expressly or tacitly authorised to do so. If he used the thing
without any consent of the depositor, he was guilty of furtum
usus (theft for use). As a general rule, he was liable only for
gross neglect because he derived no benefit from the
transaction. The depositary was bound to restore the thing
with all its fruits and accessories. On the other hand he was
entitled to be reimbursed of all necessary charges. He could
not set it off against any debt due from the owner. The
depositary, as in commodatum, got merely detentio of the
object. As in commodatum the contract had to be gratuitous,
i.e. the depositary would not get any payment, otherwise the
transaction would be locatio-coductio opens. The depositor
had the actio clepositi directa to enforce the return of the
object on demand. This action was also available if the
depositary was guilty of dolus (fraud) or culpa tata (gross
negligence) in relation to the contract. The depositary, on the
other hand, had the actio depositi coritraria-(1) if the
depositor failed to display exacta diligenttia, e.g. made a
deposit of something with a latent defect. (2) to recover any
expenses he might be put to in keeping the thing.
There were three exceptional cases of deposit urn :-
(i) Depositum miserabile.—This was a deposit made
under urgent necessity. Thus sufferers from fire,
shipwreck or other calamity, might be compelled by
circumstances to leave their goods in the hands of
persons wholly unknown to them. In those cases the
depositary who proved unfaithful to his trust was
liable to be sued under a praetorian action for double
the value of the articles embezzled.
(ii) Depositum irregulare.—This was a deposit of res
fungibles ( e.g. money). Generally money was
entrusted by one man to another on the
understanding that the depositary was to become
owner and was only to be bound to restore its

equivalent in value. In this case the depositary,
becoming domiruis was liable even for loss by mere
accident. He had the ownership and possession of the
money and he could use it. This form of deposit
resembled mutuum but the transaction differed from
mutuum in this that (1) in ciepositum (rregulare, the
deposit was made chiefly in the interest of the
depositor, though the depositary had the right to use
the money, (2) if the money were not returned at the
proper time, interest could be claimed by the acto
deposti threcta, whereas in the case of a loan by
mutuum, interest was never recoverable in the
absence of an express stipulation.
(iii) Deposit with a sequester.—It was a deposit in neutral
custody of a thing which formed the object of
litigation between two or more parties. The things
could remain with him pending the determination of
right in the litigation. It might be either voluntary or
judicial and the condition of every such deposit was
that the depositee called the sequester should deliver
the thing to the winning party.
(4) Pignus.—Pignus was a contract by which a debtor
delivered possession of a thing to a creditor by way of security
for money borrowed with the condition that the creditor was
to return the thing when the debt could be satisfied, (see page
133)
(B) Contract verbis or verbal contract.—There were
four kinds of verbal contract; of them stipulaflo is important:
(i) DoLLs dictio.— It was an ancient form of oral promise
made at the time of settlement of dos (dowry). The
promise might be made by the wife or by her
ascendant,
(ii) Jurata promisslo tibertL—It was an oath taken by a
freedman at the time of manumission.
(iii) Votum.—It was a promise to give property for

religious purposes.
(iv) S tip utatio.—Stipulatto may be defined as that
species of contract, which imposed an obligation
upon a person because he answered in set terms a
formal question put to him by the promisee, which
contained a statement of the subject matter of the
promise. In other words stipulatio was entered into
by uttering certain formal words in the form of
questions and answers. Its peculiarity consisted in
this that the promise must be made in answer to a
question and the binding force of the agreement was
derived from those questions and answers. The usual
form of the question asked by the intending creditor
was 'Do you promise to give me 10 wirel"? The debtor
replied "1 promise." This created a binding contract.
If one simply said. "I promise to pay you 10 aure,"
there was no contract. For a proper stipulation, the
creditor must ask the question, and the debtor must
answer "spondeo" (I do promise). The stipulator was
he that asked the question, the promiser (promissor)
was the person bound by the answer. The stipulator
was always the creditor. Originally the question
could only be put and answered by means of the
particular words, "spondes" ? "spondeo." Only the
Roman citizens were allowed to use this form. A
strict adherence to these forms was necessary to
uphold a contract. Any other words though they
might express exactly the same meaning could not
create an obligation. Gaius tells us that it was so
formed that it could not even be translated into
Greek. There were other forms for the use of aliens
like Fidepromittisne? Fidepromitto Fidejubesrie ?
Fidefttbeo; Debisne ? Dabo : Faciesne ? Faciam. In
later times the rigour was relaxed and Leo enacted
(472 A.D.) that a stipulation should be valid even

though the question and answer were not couched in
the ancient special terms and a contract might be
entered into by any words which clearly expressed
the intention of the parties. In Justinian's time the
stipulation might be in any words and in any
language.
Stipulation served two purposes in Roman law (1) It
created every sort of obligation, viz, to pay money, to give
property, to do or not do an act, and (2) it was also used to
substitute an existing obligation by novation. Novation
implies the extinction of a former obligation and the
substitution of a new one.
Stipulations were either voluntary or involuntary.

Voluntary stipulations were contracts proper. Involuntary
stipulations were made under compulsion. There were three
kinds of involuntary stipulations under the law of Justinian
:(1) Judicial, (2) praetorian, and (3) conventional or common.
The judicial stipulations arose when the judex compelled the
parties to a dispute to make a stipulation. The "cautto de dolo"
was an example of judicial stipulations, by which a defendant
who was ordered to restore to the plaintiff some piece of the
property of the latter, was obliged to undertake that he would
do nothing before delivery to lessen its value. The praetorian
stipulations were made on the authority of the praetor. The
"cautio damni infecti" was as example of praetorian
stipulation, by which a man whose property was likely to
injure a neighbour by reason of its defective condition was
compelled to give security to indemnify his neighbour against
any ensuing damage. The conventional or common
stipulation was made on the authority, sometimes of the
praetor, and sometimes of the judge. "Rem saluam fore
pupilli" (safety of the pupil and his property) was an example
of common stipulation, which was sometimes taken by the
praetor and sometimes by the judex.
Roman— 15
208 Roman Law Chapter—WI
A stipulation taken by a paterfamilias from his jilius or

by a master from a slave was not actionable, but gave rise to a
natural obligation. Persons deaf, dumb or mad could not be
parties to a stipulation, and a pupil could not bind himself by
a stipulation without his tutor's authority. A stipulation was
void if an impossible or immoral condition was added to it.
Joint debtors and creditors.—We have considered
stipulatlo as a transaction between two persons. There might
be more than one person on each side of the contract and the
case of joint obligation occurred in (1) adstipulatio and (2)
adpromissto.
(1) An adstipuator was a person who had associated
himself with the creditor promising to do the same thing
which the creditor was bound to do. He was one of two or more
principal creditors and could sue the debtor in his own name.
Any payment made to the adstipulator by the debtor
extinguished the claim of the creditor in respect of the same
debt. Adstipulatio was chiefly used for the purpose of agency.
(2) An adpromissor was a person who promised on behalf of
the principal debtor. He was a surety and the creditor could
recover the debt from him if the debtor failed to pay. In the
time of Justinian the only manner of constituting suretyship
by a verbal stipulatio was Jidejussio.
Fidejussio (the law of surety).—FLdejussio was a
contract by which a person bound himself as surety to fulfil
the obligation of another in case of failure of the principal
debtor. The obligation of the surety was usually entered into
by stipulation and might be reduced to writing. It was
extended not only to the surety but to his heirs. A surety might
be interposed in natural as well as in civil obligations. He
could not be bound to pay more than the principal debtor
although he might be liable for less. Where there were several
sureties each surety was liable to the creditor as if he had been
the sole debtor. Under the law of Justinian a surety could
demand that the creditor should sue the principal debtor
before proceeding against him and he could not be sued unless

the creditor could show that it would be useless to do so in
consequence of insolvency or absence of the principal debtor.
A surety could recover from the principal debtor by the actio
mandati whatever he lawfull paid. A surety called upon to pay
the whole debt might require the creditor upon payment to
hand over to him all his remedies and he could sue the
principal debtor for the amount paid or other sureties for
their share. By the sc. Vellelanum (46 A.D.) women were
prohibited from undertaking the duties of a surety and such
an obligation of a woman was ineffectual. A female surety
could plead the exceptio by virtue of sc. Velletani, if she was
sued on her promise. But the statute did not apply where the
woman had been guilty of fraud, or where the object of the
main stipulation was to provide a dowry. Justinian retained
these provisions but required in addition that a surety by a
woman should be in writing and executed before three
witnesses, unless given for value received or to provide a
dowry, otherwise it was absolutely void.
Co-sureties.—Before the time of Emperor Hadrian there
was no right of contribution between co-sureties, where one
surety only had been sued for the whole of the debt. A surety
when sued could object to pay unless the creditor first
transferred to him his rights of action against the other
sureties. But Hadrian introduced a species of contribution.
The surety who was sued could require the creditor to divide
his claim among the solvent sureties at the time issue was
joined in the action. But if the sureties were insolvent, the
burden increased upon the rest. But if the surety neglected to
claim the privilege of division, and the creditor obtained the
whole amount from him, there was no right of contribution
against the co-sureties.
(C) Contract literis or literal contract.—The literal
contracts as described by Gaius, may be defined as a means of
creating obligation to pay money by a fictitious entry
(expensilatio) in the creditor's ledger, with the consent of the

intended debtor. Thus A, with B's consent, enters the fact that
B is indebted to him for 50 aurei, and thereupon B is under an
obligation to pay, though no money has passed between them.
An entry in a ledger might be one of two kinds :-
(i) Nomen arcarium, i.e. a statement that money had
actually passed between the creditor and the debtor,
in which case no obligation 'Uteris' arose. The entry
was merely evidence of the debt lent.
(ii) Nomen transcripticiurn.—An entry by nonien
transcripticfum was where a creditor closed one
account in his ledger (acceptllatio) and opened a new
one (experisilatlo), and it was only under these
circumstances, that an obligation Uterts arose.
(D) Consensual contract.—The consensual contracts,
like the real contracts, were formless. They derived their
validity from the consent of the parties and were based upon
the jus gentium. They were of great commercial importance to
the Romans : that was probably the reason for making them
formless. There were four kinds of consensual contracts
(1) Emptio venditio ( purchase and sale).
(2) Locatio conductio (hire).
(3) Societas (partnership).
(4) Maridatum ( agency).
(1) Emptio-venditio. — It was a contract of sale. The
vendor (seller) agreed to sell and the emptor (purchaser) to buy
some object of property for a definite price. The contract was
complete at the moment the price was fixed, although the
thing had not been handed over, and the price had not been
paid. When one commodity was given in return for another,
this constituted exchange, not sale. Writing was not essential
to the validity of the contract. Justinian made certain
changes in the law as to the formation of the contract. He
enacted that if it was contemplated by the parties that the
negotiations for sale should be reduced to writing, the sale was

not to be complete until the terms were written and either
party should be free to withdraw before the contract was
written.
Elements of sale.—Apart from the personal capacity to
contract, the following were the elements of sale:—(1) object,
(2) price and (3) the consent of the parties.
The object of sale.—All things adapted to commerce and
susceptible of appropriation could be sold, unless the sale of
them was prohibited by law. The sale of a thing which was not
in existence at the date of the contract, was valid, e.g. the
future produce of an estate. The following things could not be
the object of a contract of sale:—(a) Res extra commerciurn. (b)
Things which both parties knew to be stolen, (c) Things
already belonged absolutely to the purchaser.
Price.—There must be a real price and it must be coined
money. If a thing was sold for a nominal price which the
seller did not mean to get, there was no sale, but the price
might validly be made less by way of favour to the buyer. The
contract was not vitiated for mere inadequacy of price, unless
it fell short of half the value, in which case, under a
constitution of the Emperors Diocletian and Maximian, the
seller could refuse to carry out the contract. It is a moot point
whether the buyer had a similar right to throw up the contract
when the price was double the value. If no price was fixed by
the parties, it could be fixed by a reference to a third person. If
the third person fixed a price, the contract was complete.
Earnest money—It was often the custom, on entering into
the contract, to pay something by way of earnest (arra). This
was not an essential part of the contract but merely an
evidence that the contract had in fact been made. If the buyer
refused to proceed, he forfeited the earnest money. If the seller
wanted to withdraw, he had to restore double the amount of
the earnest money.
The duties of the vendor (seller). —The following were

the duties of the seller:—
(1) Until delivery (tradttio) the seller was to take much
care of the thing as a good paterfamilias.
(2) It was his duty to deliver exclusive possession of the
thing to the purchaser when the price was paid.
(3) He was bound to guarantee to the purchaser the
undisturbed possession of the thing. He had,
therefore, to compensate the purchaser if he was
evicted by the true owner or some one claiming by a
better title than that of the purchaser.
(4) The seller was bound to give warranty that the thing
sold was free from defects. If the subject did not
answer this implied warranty the purchaser could
rescind the contract and recover his purchase money
with interest by the acto red hibttoria. But this
action had to be brought within six months from the
date of the contract. Alternatively, the purchaser
might by the actio quanti mirioris or aestimatoria
have the purchase money reduced in proportion to
the defects discovered and this action might be
brought within one year.
Duties of purchaser. — He must pay the price and on
default of punctual payment he must pay interest. He must
accept delivery of the goods and pay the expenses the seller
incurred in keeping the things prior to delivery.
Risk of things sold prior to delivery (periicutum reQ.-
After the contract of sale and prior to delivery, it was the duty
of the seller to take good care of the thing sold, but the profit
and the loss arising from it during this period were with the
buyer, though the thing was not deliverd to him. In order that
the risk might pass to the buyer before delivery, the sale must
be of specific ascertained goods. The interest of the buyer as
owner dated from the time of the contract of sale. Thus if a
mare foaled after the contract, the foal belonged to the buyer.
On the other hand, if the property was accidentally destroyed

or injured, the loss fell upon the buyer, and the seller was
entitled to the full price.
The general rule, that the subject was at the risk of the
buyer from the time of sale, was subject to some exceptions.
The risk remained with the seller in the following cases:—(a)
Things sold by number, weight or measure remained at the
risk of the seller until they were set apart, numbered, weighed
or measured respectively The risk, however, passed to the
buyer if these things were sold in lots, e.g. all that lot of corn,
or oil or wine. (b) When the loss happened by the fault of the
seller, by his improper delay in giving delivery, or by neglect
of due care and diligence, (c) When by special agreement the
risk was laid on the seller.
(2) Locatio conductio (hire).—Locatto cortductio was a
contract in which one person (locator) agreed to give to
another (conductor) the use of a thing or to lend his services or
to do a particular work for a fixed sum of money. Locatio
conductio was of three kinds
(a) Locatlo conductio re (hiring of things).
(b) Locatfo cortductio operarum (hiring of services).
(c) Locatlo conductio opens (hiring of works).
(a) Locatio conductio rei (hiring of things).—It was a
contract by which one party to the contract (locator) agreed to
let the other party (conductor) the use of a thing for a limited
time in return for a fixed sum. The locator had the actio
locati. the conductor the actio conduct( and the contract was
complete when the price was fixed. All things which were the
subject of commerce, whether movable or immovable, might
be let for hire. But things consumed in use such as money,
coin, wine and the like were not suitable for hire. The terms of
lease of lands and houses depended on the agreement of the
parties, but usually they were for five years. The lessee might
sublet to another and on the death of the parties the contract
passed to their representatives.
A tenant of a house or farm had no right in rem to the

house or farm but only a right in personam against the
landlord. If he was evicted by his landlord or even by a
stranger, he could not ask for the interdicts by which
possession was restored. He could only bring an action for
damages against his landlord for breach of contract.
Duties of landlord or lessor (locator).—The duties of
the land lord were the following:—
(1) To put the lessee in possession of the subject.
(2) To keep the thing in such a state that it might be fit
for the purpose for which it was let. If the thing
deteriorated and was not repaired, the tenant could
demand a reduction of the rent, or a release from the
contract. Trifling repairs were to be done by the
hirer.
(3) To guarantee the peaceable enjoyment of the thing
during the currency of the term agreed upon. If the
tenant was deprived of the holding by the landlord
before the expiry of the lease, he was entitled to full
compensation. But if the tenant was evicted through
no fault of the landlord, the tenant could claim only
a remission of the rent, and not damages. Thus if the
house was burnt down, or the thing let was carried
off by robbers, or the farm was confiscated, the
tenant was released from rent, but was not entitled to
compensation.
(4) The landlord must permit the tenant to remove not
only the movables, but even fixtures placed by the
tenant provided the tenant did not thereby injure the
house.
(5) The landlord was responsible if the thing let had
such faults as were likely to cause damage. If a
landlord let a farm along with the vats or jars used
in wine-making, and the vats were rotten, the tenant
lost his wine, the landlord must pay the value of the
wine.
Duties of tenant.—The duties of the tenant were the

following
(1) The tenant must pay the rent at the stipulated period
and to pay with interest in case he was in arrear. The
tenant could be ejected if rent of a house or farm was
in arrear for two years. The tenant of a farm was
entitled to a remission of his rent on account of loss
or damage to the crops.
(2) He must occupy during the term agreed upon.
(3) He must exercise the highest degree of care in
preserving the thing in good condition.
(4) He must not use the thing other than that for which
it was let.
(5) He was answerable for culpa levis (slight negligence)
but not for accidental loss.
(6) He must restore the thing upon the expiration of the
term.
(b) Locatio conductio operarum (hiring of
services).—It was where one party (locator) let out his
services to the other (conductor) in return for a money
payment. It was a contract of service. The employer was called
conductor operarum and the servant locator operarum. The
contract was perfected by consent. In the hiring of services, a
distinction was made by the Romans between (1) operae
liberajes i.e. the services of the educated classes, and (2) operae
illLberales i.e. the services of the uneducated classes. The
former belonged to the members of the liberal profession, viz.,
orators, advocates, physicians, teachers and other skilled
professional men. The Roman theory was that their services
were gratuitous, and therefore they were liable only for culpa
lata (gross negligence). The services of educated or skilled
class could not be hired at all. The latter consisted in
supplying another with labour, e.g., the contract of service
between a master and a servant. The rights and obligations of
servants were regulated by custom or by agreement.
(c) Locatio conductio opens (hiring of works).—It

was where one party (conductor) agreed to make something
out of, or to do a job, in relation to materials belonging to the
other (locator) for a money payment. If the work was to be
done in respect of a particular things, as by a jeweller or
builder, or tailor, or carrier of goods, the employer was called
the locator and the workman the conductor. Thus A agreed to
build a ship for B out of B's wood. A was the conductor and B
was the locator.
Duties of workman and employer :—(1) The workman
was bound to do the work properly in the manner agreed upon
and (2) to take good care of the thing entrusted to him and to
pay their value if they were lost or injured through his
negligence or unskilfulness. The employer, on the other hand,
was bound to pay the wages agreed upon.
Hire distinguished from sale and other contracts.
Hire is analogous to but distinguishable from several other
contracts. Hire resembles comrnodatum as both are contracts
for the use of a thing. But commodaturn is gratuitous, while
hire is for a price. It is also distinguishable from deposit
which is also gratuitous or from mandate i.e. a service
rendered gratuitously. In hire the price must be money. If the
consideration was something other than money, it was not
hire. Although hire was very distinct from sale, yet there were
cases in which a difficulty arose as to whether a certain
transaction was a hire or sale, where one person contracted
that the goldsmith should, out of his own gold, make ring, and
receive 10 dure, it was disputed whether this was a contract of
sale or of hire. One view was that it was a compound contract
of sale as regards the material, and of hire as regards the
services of the goldsmith. It was finally settled by Justinian
that where the workman supplied the material, it was a
contract of sale. But if the material was supplied to him and
workman supplied the labour, it was a contract of hire.
(3) Societas (partnership). —Soctetas was a contract in

which two or more persons agreed to combine property or
labour in a common stock with the object of sharing the gain
among themselves.
Share of partners.—Partnership was formed by the simple
consent of the parties. If nothing was said as to the shares of
the partners, they took equal shares. By express agreement,
however, the shares might be different. One partner might
agree to contribute all the capital and to get equal share of the
profit and a partner might even, by special agreement, share
the profits but not be liable for loss. But the converse case i.e.
where one partner shared loss but was wholly excluded from
gain amounted to a "leonLa socLetas" and the agreement was
void. As in the case of sale and hire, the determination of the
shares might be left to a third party.
Difference between partnership in Roman law and
modern law.—A profound difference is to be remarked
between partnership in the Roman law and partnership in
modern system of law. In modern system every partner
within the scope of the business is an implied agent of the
other partners and can bind the assets of the partnership. In
Rome this was wholly wanting. The Roman law of
partnership dealt only with the claims of partners as between
themselves. The third parties had no direct remedy except
against the individual partner with whom they contracted.
Kinds of Partnership, — Partnership might take one of
the following forms :-
(1) Societas omnium bortorurn (partnership in joint
ownership).—It was a partnership which excluded
the idea of any partner possessing private property.
The agreement was that all the property of the
partners which they had previously owned in
separate ownership, or which they might acquire
during the partnership, was to become the joint
property of all. They were entitled to have all their
debts and expenses paid out of the common fund.
(2) Sodetas universorum quae ex quaestu veniurtt (trade

partnership).—It was the ordinary form of trade
partnership. The partners contributed definite
property and divided the profits arising from it
according to their shares. Each partner might own
private property, e.g. property which he acquired as
heir, or by way of donation or legacy.
(3) Societas alicujus negotiatonis (partnership for a
single transaction).—Under this form the
partnership was limited to gain in some particular
business. As for example when one person
contributed three horses to a team and another one
in order to realise a higher price by selling them
together.
(4) Sodetas untus reL—It was a partnership which was
formed for a single transaction, e.g. the ownership of
a race course or of a theatre. The object of the
formation of such a partnership was to prevent
competition.
(5) Soctetas vecttgalium.--It was a partnership for
farming taxes. Tn Rome the right to collect the taxes
was sold by public auction and generally for five
years. It was the peculiarity of such a partnership
that it was not dissolved by death. The heirs of a
deceased partner could get the right to enter into an
agreement along with others.
Obligation of partners. -
(a) The partners must contribute their shares in money
or in labour as agreed upon.
(b) They should share the loss when it occurred in
partnership business.
(c) They must act in concert. They were responsible for
loss due to negligence but not for accidental loss.
(d) If one of the partners advanced money or entered
into some engagement, on account of the partnership
business, for which lie was bound to indemnify a

third party, each of the partners must rateably
contribute to the indemnity. If any partner became
insolvent, the solvent members must by rateable
contribution make up the deficiency.
(e) Each partner was bound to show good faith and due
diligence towards the others, but the degree of
diligence was not the highest. It was enough if the
partner showed the same care as in his own affairs.
The rights and obligations of the partners were enforced
by actio prosoclo.
Relation of partner to a third party.—The rights and
liabilities with regard to third persons were as follows:—If all
the parties entered into the contract, all could sue and be sued
on it. If, on the other hand, one partner made a contract in his
individual and private capacity, he alone was affected unless
the partnership was in joint ownership (omnium bonorum).
When one partner made a contract on behalf of the firm, the
firm could not sue one such a contract but it could secure the
benefit. Conversely the firm could not be made liable but the
partners might be sued as individuals. The reason was that
the firm had no distinct legal identity.
Dissolution of partnership.—Under the Roman law
partnership was dissolved in one of the following ways
(i) By death of a partner, unless it was otherwise
provided for in the contract of partnership.
(ii) By Capitis deminutio maxima and media of any
partner.
(iii) By the bankruptcy of one of the partners or the
confiscation of all his property.
(iv) By expiry of time when the partnership was formed
for a fixed time.
(v) By completion of the 'business when the partnership
was formed for carrying out a particular business.
(vi) By loss of the partnership capital.

(vii) By renunciation.—Any partner might retire even
before the expiration of the term. But in such case,
there had to be a serious and reasonable ground. In
any case the retiring party had to compensate others
for withdrawal which unfairly prejudiced their
interest. A partner who withdrea without
justification divested himself of all his rights as a
partner, but remained liable for all existing
obligations.
(viii) Partnership could be dissolved by the court on the
application of a partner.
(4) Mandatum (Agency).—Mandate was a contract in
which one person (mandatary or mandatarius or agent)
undertook to do some act without remuneration at the request
of another (mandant or principal), who promised to
indemnify him against all loss. The person who gave the work
was called the rnandant or mandator (principal) and the
person who undertook it was called mandatary or
mandatarius (agent). It was a sort of agency. It was essential to
this contract that it should be gratuitous because if any
remuneration was given to the agent for his service, the
contract was not mandate, but locatlo operarum. A mandate
might be for the benefit of the mandant (principal) or of a
third person, but not exclusively for the mandatarius (agent)
himself.
How a mandate was constituted.—A mandate might be
constituted either verbally or by letter or it might be inferred
from the actions of the parties, e.g. where one permitted
another to transact his business for him. The essential
elements of mandate were (1) good faith, (2) interest of the
principal or a third party, (3) without remuneration, and (4)
consent of both the parties. Justinian stated that a mandate
might take one of the five forms:-
(i) Mandatum sua.—It was an agency for the benefit of

the principal alone, e.g. a request that the agent
should conduct the business of the principal or by an
estate for him.
(ii) Tha et sua.—It was an agency for the benefit of both
the principal and the agent, e.g. a request made by
the principal that the agent should lend money, at
interest to a friend, who was building for the
principal. Here the principal was benefited by the
works of the building and the agent was benefited by
getting interest on his money.
(iii) Aliena.—It was an agency for the benefit of a third
person, e.g. where the request was to manage the
affairs of a friend of the principal.
(iv) Sua et aliena.—It was an agency for the benefit of the
principal and a third person, e.g. the principal asked
the agent to manage property belonging jointly to the
principal and a third person.
(v) Tha et aliena.—It was an agency for the benefit of the
agent and a third party, e.g. where the request was to
lend money at interest to a third person.
Powers of mandatary (agent).—The powers of an agent
varied according as the mandate was general or special. He
might be given general or special powers. When he was given
general powers e.g. the management of a persons entire
affairs, he must exercise a sound discretion within the scope
of his employment. When the orders were special and limited,
he must strictly follow them. The agent might better the
condition of the employer, but he could not make it worse.
Thus he could buy at a lower price than what he was
empowered to give. If he purchased at a higher rate, he could
not recover the excess from his principal. The agent could
claim compensation for loss when acting within the limits of
his authority. He had acUo mandatt contraria, while the
maridant (principal) had actio mandati directa for enforcing
their respective claims.
Duties of mandatary (agent).—

(1) He was not bound to accept the business, but if he did
accept, he must do it. But this duty was not absolute
and he might renounce the mandate provided there
was time for the mandator to act himself. He was
also excused from performance, if good reasons were
shown, e.g. serious illness. If he failed to perform his
promise without sufficient reason, he was liable for
damages.
(2) He must property execute his commission and
conform to the instructions given, failing which he
would forfeit his indemnity and be liable for
damages for loss to the mandator (principal).
(3) He was answerable not only for fraud or gross
negligence but also for slight faults. He must take as
much care of any property as a man of ordinary
prudence. Generally in gratuitous contracts one was
liable for culpa lata (gross negligence) but mandate
was an exception to the general rule. The mandatary
(agent) was liable for culpa levis (slight negligence).
This forms a strong contrast to the contract of
deposit which was also gratuitous.
(4) The mandatary must make over to the mandator
(principal) all that he acquired in the discharge of
his duties with fruits and interests.
(5) He must give full accounts to the mandator
(principal) and allow the latter to exercise all rights
of action which he had acquired against third
parties.
Duties of mandant (principal).—
(1) He must ratify what was done by the agent within the
scope of his instructions.
(2) He must accept what the agent had acquired or done
for him.
(3) He must indemnify him against all expenses and
liabilities that he had properly incurred in the
execution of the commission.
Termination of mandate.—The mandate ended in the
following ways:—
(1) When the object was accomplished or became
impossible.
(2) By revocation of authority by the principal.
(3) By the mutual agreement of the parties, even in
course of performance.
(4) By one party repudiating before performance.
(5) By the death of either party before the mandate had
been executed, but if the agert executed the mandate after the
death of the mandator (principal) and in ignorance of his
death, he was entitled to be indemnified by the heirs of the
principal. If the agency was for an act to be done after the
principal's death (e.g. the agent was to manumit one of his
slaves), it remained good inspite of the death of the principal.
4. Quasi-contract.-_There are certain obligations which
arise not by the consent of the prarties, but are imposed by law
on equitable grounds. They are formed by implication from
circumstances regardless of the assent or dissent of parties.
They are called quasi-contracts. The following are the
examples of quasi-contractual obligations under the Roman
law:
(1) Negotiorum gestio.—When a person managed the affairs
of another in his absence and without his authority, it was
called negotorum gestlo, e.g. the negotiorum gestor repaired
his friend's house during the absence of the latter from Rome
to prevent the property from falling down. It is akin to
mandatum but differs from it in that he was acting on behalf
of another without his authority In negotiorum gestio, the
person who was benefited by the act done was liable, although
he had neither authorised nor ratified the act, and could be
Roman-16
224 Roman Law Chapter—VU
sued by the actio negotiorum gestorum contraria for the

expenses or other liabilities which the negotionim gestor had
incurred in doing the work. But no case of negotiourm gestio
arose unless (a) the work was really urgent; (b) it was done in
the interest of the owner and (c) the negotiorum gestor had not
been previously forbidden by the owner to undertake the
business. The remedy of the principal was the actto
negotiorum gestorum directa, by which the negotiorum gestor
could be sued if in the conduct of the work he failed to show
exacta diligentia. It was not enough to use diligence which he
ordinarily displayed in his own affairs.
(2) Tutor and ward.—The tutor's action (actio tutelae
corttraria) against his ward, and the wards action (actio
tutelae directa) against the tutor arose from quasi-contractual
obligation.
(3) Joint ownership.—Two or more persons without being
partners, held something in common, such as a house which
came to them jointly as a legacy, and one of them alone
enjoyed the property or had been put to necessary expense in
relation thereto. The obligation to give an account of the
profits or to share the expense was considered as arising from
quasi-contract and could be given effect to in an action
"comrnun diviidundu" or if the persons were co-heirs the
obligation for the portion of the inheritance could be enforced
by the actio farniUae erciscundae.
(4) The heir and legatee.—The heir, on entering into the
inheritance, was bound to satisfy the claims of the legatees.
This obligation arose from quasi-contracts.
(5) Payment by mistake.—When a person paid a sum of
money to another under a mistake of fact, he could recover
that money by an action, called condictio tndebiti solutio.
Thus if a legacy was paid under a testament supposed to be
genuine, but which after-wards turned out to be forget, the
person who received the money could be compelled to restore
it.
(6) Jettison (lex Rhodia de Jactu).—The lex Rhodia, the
maritime law of the Eastern Mediterranean, was adopted by
the Romans and other commercial nations. Under this law,
when a portion of the cargo was thrown overboard to save a
ship, the owner of the ship and goods saved were obliged to
compensate those whose properties were sacrificed. Each had
to contribute rateably for his own share. The obligation to
compensate arose from quasi contract. To establish this
claim for contribution it was essential that (a) some part of
the cargo or of the ship should have been voluntarily
sacrificed for the common safety; (b) the sacrifice so made had
the effect of saving the property of those concerned. If the ship
perished, inspite of the jettison, no contribution was due.
5. Transfer of contractual rights and liabilities.-
Under the Roman law the liability under a contract could only
be transferred by novation It was the extinction of an
obligation by the substitution of another obligation.Thus A
owes ten aurel to B; with the consent of the creditor B, a new
debtor is substituted in the place of debtor A. This involves the
extinction of the original debt between A and B and the
novation of a new debt between B and C.
Originally the benefit of a contract could only be
transferred by novation. The person to whom the right was to
be transferred made a new stipulation from the debtor at the
request of the original creditor and the new stipulation
operated to discharge the obligation owed to the original
creditor and it created a new obligation in favour of the
transferee. Under the formulary procedure the creditor
intending to transfer an obligation to another gave him a
mandate to recover the debt as agent for the creditor and to
retain the debt for him when it was recovered. This operated
as an assignment, not of the benefit under the contract but of
the right to sue for it. The assignment of a right of action was
defective because the assignment became void if the original
creditor revoked his mandate or if the creditor of transferee
died before the recovery of the debt. So it was enacted that

from the moment the transferee gave notice to the debtor of
the transfer of the debt, the original creditor lost his right of
revocation. Finally, under the influence of the praetor,
assignment of the benefit of a contract was possible without
the necessity of a mandate from the creditor to the transferee.
Once the original creditor manifested a clear intention that
the benefit of the contract should vest in the transferee on a
sale or by way of gift, the transferee became entitled to sue the
debtor by an actio utilis in his own name, and the transfer
could not be determined either by revocation or death.
The effects of transfer.—
(1) The claims of the original creditor were transferred
to the assignee with all accessory rights and
privileges attached to it.
(2) The assignee was bound by all defences (excepto)
which would have been competent to the debtor
against the original creditor and also to those
personal to the assignee him self.
(3) The original creditor generally guaranteed the
existence of the debt assigned, but not the solvency of
the debtor.
Anastasian law.—To put a stop to the practice of
purchasing debts at low prices and thus harassing the debtors.
the Emperor Anastasius ordained that the assignee should
not realise from the debtor more than what he paid to acquire
the debt with interest. This rule was adopted and confirmed by
Justinian.
6. Extinction of contractual obligation.—An
obligation arising from a contract might be extinguished in
one of the following ways :-
(1) By performance or payment (solutfo).—Justinian tells
us that every obligation was discharged by giving of the thing
due, or if the creditor agreed, something else could be given in
its place. It made no difference whether the debtor himself

performed the contract or some one else in his place, or
whether it was paid with or without the debtor's knowledge or
against his will. In case of suretyship, payment either by
principal or surety extinguished the obligation as against all
parties, ten cases where skill and ability of a person were
relied on, the creditor could insist that the contract should be
performed by the person specified and by no one else.
(2) Contrarius actus or release,—An obligation was
extinguished by release which was a voluntary discharge of an
obligation without performance. Release was of two kinds: (1)
formal and (2) non-formal. The Roman law started with the
principle that obligations must be discharged in the form in
which they were created. Hence a contract of nexum made by a
ceremony per aes et ltbram must be dissolved by a similar
ceremony; a contract by stipulation must be dissolved by a
verbal release (acceptilatio); a contract formed by writing, by
written release (expensilato). When an obligation was
discharged by the creditor without payment or performance
by the debtor, it was called in the Roman law acceptilatth. It
was a solemn declaration made by the creditor to the debtor in
the form of stipulation that the obligation was satisfied. The
rule, that obligation must be discharged in the from in which
they were created, was inconvenient. So an ingenious device
called the Aqutharta stipulatlo was introduced by Aquilius
Gallus, a colleague of Cicero's time in the praetorship, in 66
B.C. By means of this device any number of obligations, of
whatever kind, due from one person to another could be
converted by novation into a single obligation.
At first the Roman law recognised a formal release for a
formal contract. But at length the praetor interfered to protect
a debtor whom his creditor had agreed to acquit, and allowed
release without observing the appropriate formalities.
Sometimes instead of going through the formalities of
release, the creditor agreed not to sue the debtor. In order that
the creditor may not afterwards molest the debtor. the praetor
gave effect to such an agreement (pactum de non petendo) by
refusing to the creditor his legal remedy. This was not quite
the same thing as a release.
(3) By Novation.—Novation was the substitution of one
obligation by another. When the new obligation was created
in place of old one, the latter was extinguished. After the
disappearance of the old literal contract it could be done by
stipulation. Novation operated in two ways : (a) When the
debtor granted a new obligation to the creditor in lieu of an
old one which was extinguished. (b) When a new debtor was
substituted for an old one who was discharged by the creditor
e.g. B might accept C as his debtor in A's place. This last
method of extinction was called delegation, and the new
debtor thus substituted was in the Roman law styled
expromissor.
Novation was not to be presumed. Justinian declared that
three should be no novation unless it was expressly declared
by the contracting parties that such was the aim of their
agreement. If not, both the original and the new obligation
remained in force.
(4) By subsequent impossibility.—An obligation was
dissolved where its performance had become impossible
without the fault of the debtor. Thus a contract to sell a house
came to an end when the house was accidentally destroyed.
(5) By operation of law.—An obligation was extinguished
by the operation of law in the following ways :-
(a) By suit (litis contestation).—In the time of Gaius an
obligation was extinguished when an action to
enforce it was commenced and reached the stage of
tills contestatio i.e. refereed to an arbiter orjudex.
Thereupon a new obligation arose, viz., that the
debtor should be condemned if he was found in the
wrong and after judgement his obligation was to
satisfy the claim.
(b) Capitis demirtutto.—The obligation to pay the debts

was extinguished when the party suffered captis
derninutio as it destroyed the persona of the party to
the obligation. But the praetor gave relief to the
creditor by granting him actions against the cap ite
müiutus.
(c) Prescription.—Prescription might have the effect of
extinguishing an obligation. No general statute of
limitation for obligation was introduced until by
Theodosius in425 A.D. Actions derived from the jus
civile were perpetual but the praetor interfered in
derogation of the civil law and his action was
regarded as extraordinary, fully justified and
required by natural justice. Penal actions created by
the praetor must be brought within one year but the
actions brought for the recovery of property were
perpetual. In the latter case the statutory period of
limitation in the time of Justinian was 30 years.
(d) Merger or confusio.—Obligations were extinguished
by merger i.e. when the same person became both the
creditor and debtor, either by succession or singular
title. As for instance, when the debtor succeeded to
the creditor or the creditor to the debtor, or a
stranger to both, the obligation was extinguished on
the principle that no one can be both the creditor and
debtor to himself at the same time.
(6) By death.—In some cases the death of a party might
extinguish a contractual obligation. Thus a contract for
personal service (e.g. location conductio operartim) was
extinguished by the death of the person who was under an
obligation to render service. In mandatitm the obligation was
extinguished by the death of either party before the mandate
had been executed. Similar was the case in societas
(partnership).
7. Delict.—Delict means an offence or wrong wilfully

committed in violation of law. It is an infringement of a right
in rem. The wrongdoer is bound to make reparation to
everyone, suffering from his wrongful act and this
responsibility extends to damage caused not only by positive
acts, but also by negligence or imprudence.
Delict may be against things or persons. The principal
delicts enumerated in the Institutes of Justinian are four in
number : (1) furtum or theft, (2) raprta or robbery with
violence, (3) damnum injuria datum or damage to property,
and (4) tnjuria or wrong to the person. The first three are
violations of those rights in rem which are connected with the
ownership or possession of property and the last represents
the violation of those rights in rem which a man enjoys
wholly apart from property i.e. the primordial rights of the
normal citizen to safety and reputation.
(1) Furtum (theft).—Furtum or theft is defined in the
Institutes of Justinian as the appropriation of another's
property or of its use or possession with intent to defraud. The
thing stolen must be movable and there cannot be theft of
inmovable property such as land. To deal fraudulently with
the use and possession of a thing in a manner not permitted
by the owner was theft. Thus (1) if a creditor, who was entitled
merely to the possession of the thing pledged, used it; or (2) if a
person, with whom a thing was deposited merely for custody,
used it; or (3) if a person borrowed a thing for one purpose and
used it for another. In all these cases the parties were guilty of
stealing the use (furtum usus). If an owner who had pledged a
thing carried it off secretly from the creditor, or if an owner
finding his own lost property in the lawful possession of
another, secretly took it away, the owner was said to steal the
possession of the thing (furtum possession).
Who could bring action for theft. -An action for theft could
be brought not merely by owners, but by any one who was
interested in the safety of the thing, Thus a washerman took
clothes for cleaning at a fixed price, and the clothes were

stolen form him. It was he and not the owner that could bring
the action for theft. The owner had no interest, as he could sue
the washer-man for the value of the things stolen. But if the
washerman was insolvent, the owner was allowed to sue the
thief. A similar rule prevailed in the case of gratuitous loan
for use (commodatum) till Justinian altered the law.
Justinian gave the owner an option of proceeding either
against the borrower or against the thief. In the case of a
gratuitous deposit, the person with whom the thing was
deposited was not answerable for negligence and therefore not
liable for loss by theft. Accordingly in this case the owner,
and not the depositee, had the action against the thief.
Distinction between modern law and Roman law.—In
modem system of law theft is a crime and not a tort (delict). In
the Roman law it was at first a civil wrong and the thief was
liable to penalties but later it became punishable as a crime
when the Romans made a clear distinction between crimes
and civil-wrongs.
Kinds of theft.—In the law of the Twelve Tables theft was
divided into two classes (1) Furtum man[estum and (2)
Furtum necmarifestum. This distinction continued down to
Justinians time. The former was where the thief was either
caught in the act or in the place where he had committed the
act. If he once took it to its destination the theft was nec
manfestum, although the thing was found with the
wrongdoer. The distinction was fo practical importance,
because the penalty varied according as the theft was manifest
or non-manifest. In the former case the thief had to pay four
times the value of the thing stolen while in the latter case the
penalty was twice the value of the thing and these penalties
continued to be the same in Justinians time.
Aiding and abetting.—Not only the thief, but any one that
aided and adivsed the thief was liable to an action for theft
(actiofurti). Mere advice and encouragement was not enough.
There must be some overt act of assistance, such as placing a

ladder under a window for the thief to enter, or lending him
tools to break open the house.
(2) Rapina or vi bona rapta (robbery). —Rapina or
robbery was theft of movables, committed with violence When
a person committed robbery, he was liable to a praetorian
action called vi borto rum raptorum. The penalty for robbery
was four times the value of the thing stolen, if the action was
brought within a year. If the action was brought after the lapse
of a year, only the simple value could be recovered. The four-
fold penalty included the recovery of the thing stolen and
consequently the penalty was only for three times the value of
the thing plus the restitution of the thing. There was not, as in
theft, a separate action for the thing. The action (actio vi
bonorum) did not apply where a man used violence under a
mistaken belief that the thing really belonged to him and the
law in such case allowed him to use violence.
(3) Damnum injuria datum (wrongful damage to
property).— Damnum injuria datum was the damage
sustained from the wrongful destruction of, or injury to,
property. The law relating to wrongful damage to, property
rested on the provisions of famous lex Aquitia which was a
plebiscitum proposed by Aquilius, a tribune of the plebs, in
287 B.C. This law abrogated and superseded the provisions of
the eariler law, including the Twelve Tables.
Provisions of lex A juilta.—The first Chapter of the lex
Aquilia provided that if any one wrongfully killed a slave or a
four-footed beast belonging to another he should be compelled
to pay the owner the highest value that the slave or animal
possessed at any time whithin the previous year. This section
did not apply to wild animals or dogs, but only to animals
which could properly be said to graze as horses, mules, asses,
sheep. oxen, goats and swine.
The second Chapter of the lex Aquilia was in disuse in
Justinians time.
The third Chapter covered all kinds of damage done to

every kind of property, animate or inanimate. It embraced
injury (short of death) to slaves and cattles, the death or
injury of dogs or wild animals, and injury to inanimate
property (e.g. furniture). The offender was to pay the highest
value that the thing possessd, not within the last year but
within 30 days prior to the date of injury. If the defendant
denied his liability and was condemned, he had to pay double
damages. If the damage was caused by more than one person,
the whole sum could be recovered from any offender.
Negligence.—To contribute damnum or loss under the l ex
AquWa, it was essential that there should be not merely harm
(damnum) but wrong (injuria). A loss without a wrongful act
(damnum sine injuria) created no legal consequence. The
damage to be actionable must be done either intentionally or
by negligence (culpa). What constituted negligence depended
upon circumstances. Two cases are cited in the Institutes. A
man playing with javelins killed a slave passing by. Was he
liable? If he was a soldier, practising in some place set apart
for soldiers' practice, the act was accidental. If he was not a
soldier, the mere fact that he was doing a dangerous act in the
public place was itself proof of negligence. Again if a pruner,
by breaking down a branch from a tree, killed B's slave as he
passed near a public road or path used by neighbours, and he
did not first shout and warn the slave, he was guilty of
negligence. If on the other hand, the place was quite off the
road, or in the middle of a field, he was not liable for
negligence, even if he did not shout.
Want of skill.—If a man undertook a task requiring
special skill, then want of skill was considered equivalent to
negligence as for instance, when a doctor killed a slave by bad
surgery or by giving him wrong drugs. In the same way a
driver, who from want of skill or physical inability could not
control his horses and caused damage, was liable.
234 Roman Law Chapter--VII
Extended scope of lex Aquilia.—The provisions of the

lex Aquilla were extended by the interpretation of the jurists
and by the praetor's practice of granting an action utilis or in
fact urn. An action was said to be utilis when it was allowed by
the exercise of the equitable discretion of the praetor, in cases
to which it was not strictly applicable. The object of actio
utilis was attained by a modification of the terms of the
formula so as to make it apply to the particular case. When the
cases could not be brought within the scope of the statute or
actio utilis, the praetor introduced the actio infactum which
was adopted to meet the special circumstances of the
particular case. Under actio tnfacturn the praetor directed the
judex to pronounce in a particular way without any reference
to the authority of the statute, if the fact was found to be so
and so. The extension of the scope of the statute may be
considered under three heads: (a) The persons entitled to sue
under the statute, (b) the nature of the wrongful act for which
compensation was granted, and (c) the measure of damages.
(a) Persons entitled to sue.—As to the persons entitled to
sue, the statute provided that the action for wrongful
damages to property could only be brought by the
owner (dominus). But the praetor allowed (1) the
bona fide possessor, (2) the usufructuary, (3) the
pledgee, and (4) other persons having jura in re
aliena to bring actions under the lex Aquilia. The
praetorian actions gave the paterfamilias the right
to sue for damages to the person of the fihiusfamtlias
though the former was not supposed to be the owner
of the latter.
(b) Direct and indirect damage.—As regards the
wrongful acts for which the redress was given the
statute applied when the killing or damage was
direct i.e. when the damage was done to a body by a
body (corpore corpori). But the praetor after the
analogy of the statute gave a remedy when the
damage was done not directly by the body and even
when no damage was done to the thing itself. Thus in

each of the following cases an action might be
brought under the lex AquiUa
(1) A shuts up B's slave and causes him to die of hunger, or
(2) A drives B's horse so hard as to cause it to founder, or (3) A
persuades B's slave to mount a tree or descend a wall and the
slave is killed or hurt in so doing. If on the other hand a man
moved by pity frees another's slave from his fetters to release
him, he damages the masters interest, but not the body of the
slave. This is damage nee corpore nee corpori. In such cases
the actio infactum was granted by the praetor.
(c) Measure of damages.—As to the measure of damages,
the statute provided that the sum to be recovered was
not necessarily the value of the object when the
wrong was done, but the greatest value at any time
within the year or thirty days preceding, according
as the wrong fell within the first or third Chapter.
Under the lex Aquilia it was only the greatest value
of the thing, standing alone, which could be
considered. But the interpretation of the jurists,
however, enabled consequential damage to be
included in the sum recovered. Thus if a slave that
was killed had been appointed heir to a man whose
estate was worth 1000 aurei and by his death the
inheritance was lost to his master, then the damages
included 1000 aure( in addition to the value of the
slave. Similarly if one of a pair of horses, or of a
band of slave actors was killed, compensation could
be claimed not only for the loss of the thing in
question but for the diminished value of the rest. We
have considered that a right to a movable might be
violated firstly by depriving the owner of possession
either by theft (furtum) or by violence (vi bona rapta)
and secondly without depriving the owner of
possession by damaging his property (damnum
injuria datum).
Wrongs to land.—In regard to wrongs, immovables were in

a different position from movables. Immovables could not be
stolen and if a possessor was wrongfully ejected the property
could be restored to him. In Roman law the remedy for
wrongful ejectment was available not by an action, but by an
interdict. Every injurious act done to an immovable without
the consent or against the will of the owner, exposed the
offending party to the interdict quod vi autciam, by which he
was compelled to pay the expenses of undoring the mischief.
(4) Injuria.— Injuria was wrong to the person or
reputation of a freeman, e.g. whipping, kidnapping, false
imprisonment, defamation, attempt against chastity etc. It
was optional for the injured person to proceed against the
offender either civilly or criminally and he was allowed such
compensation as the nature of the case required. Heavier
damages were given when the injury was aggravated. An
injury was held to be aggravated (atrox) (1) from the nature of
the case, e.g. when a man was wounded, or scourged, or beaten
with sticks, (2) from the nature of the place e.g. when the
assault was in a public assembly, (3) from the rank of the
person, e.g. when parents were struck by children, or patrons
by freedmen, (4) from the consideration of the part wounded,
e.g. a blow in the eye.
Slaves and (rijuria.—There could be no injuria to a slave. A
slave was susceptible of damage but not of irijuria. In two
ways, however, a more human doctrine was established. First,
it was held that whipping a slave was a constructive insult to
the master, and it was the exclusive privilege of the master to
flog his own slave. Although the slave was not injured, the
master could sue for the insult to himself. Again when the
injury was severe, the praetor granted an action to the master,
even when there was no intention to insult the master.
Filiusfamilias.—When the persons under potestas suffered
injuria, only their paterfamilias could sue for the injury. For
irtjuria done to a married woman, both husband and wife
could sue.
Chapter—WI The Law of obligation 237
Self defence.—An assault was not an injuria if committed

in self defence. When ones life or limb was threatened, any
amount offcroe reasonably necessary to repel the injury was
lawful but no more. A man put in fear of his life could with
impunity kill his assailant. There was no necessity to kill
him if he could have caught the man. Even a burglar could not
be lawfully killed, if the householder could spare his life
without peril to himself. Any less violence, however, was
justifiable in defence of property.
8. Quasi-delict. —In certain exceptional cases, where a set
of facts showed a likeness to some delict without actually
amounting to a recognised wrong, the law imposed an
obligation to make satisfaction and that obligation was said
to arise from quasi-delict. In other words a quasi-delict was
an actionable wrong arising from circumstances resembling a
delict but which did not fall within the class of delict. It might
be committed without any wrongful intention or negligence,
or without the knowledge or will. Justinian gave the following
examples of quasi-delicts :-
(1) Wrong judgement.—A judge could be sued for damages
if he gave an unjust judgement by negligence or bad
faith, or failed to appear on the day appointed for
judgement.
(2) Vicarious liability.—The occupier of a house was
liable for damages done to any one by anything
thrown out or poured down from the house, although
the mischief was done not by the occupier himself,
but by some one else.
(3) Liablility for keeping anything to the injury of
others.—Persons who kept anything so placed or
hung that it might, if it fell, do harm to a person
passing by, were subject to a penalty of 10 aurei, even
if no one was hurt.
(4) Liability of ship master, innkeeper and
stablekeeper.—A master of a ship was liable for any
loss occurred by theft or damage to any goods in the

ship through the misconduct of the sailors employed
in the ship. The same responsibility was attached to
innkeepers and livery stable keepers for goods left in
the inn or in the stables.
9. Transfer of delictual rights and liabilities.—The
wrongdoer could never escape liability by attempting to
assign his obligations to another. Obviously a capital penalty
(e.g. forfur-tum marifestum) could not be assigned, even with
the consent of the person wronged. In cases, however, where a
delict had conferred upon the injured person a right to receive
some definite money payment, he might, if he wished, allow
the debtor (wrongdoer) to substitute some other person who
promised to make payment and then take a stipulation from
him. Whereupon the liablility of the wrongdoer might be
extinguished and transferred by novation. Conversely, the
right to receive a money payment for a wrong might be
transferred by the person wronged to another, subject to the
same limitation as in the case of the transfer of the benefit
under a contract.
10. Discharge of delict.—Ari obligation arisig from
delict could be discharged in the following ways :-
(1) Pardon.—In the case of an obligation arising from
irijuria, a pardon might be implied by dissimulation.
In other cases it had to be express, though a mere
pactum was enough in the case of actto furti and
actio irijuriarum. A formal pardon would be effected
by novating the obligation by a stipulation, and then
releasing it by acceptllatio.
(2) Performance.—Payment of the penalty and
compensation discharged the wrongdoer from his
liability in delict.
(3) Novation.—It was the common method of dissolving
obligation arising from agreement and from wrong.
(4) Operation of law.—(a) by Utis contestation in the

time of Gaius. (b) By lapse of time. The actio
injuriarum was barred if not brought within a year:
so also was the case of all the praetorian actions for
delict except the actiofurti which was perpetual. The
actio bonorum raptorum was also barred by a year in
respect of the fourfold penalty but it survived for
single damages after the expiration of that period, (c)
By merger of cortfusio.
(5) Death.—Death had a much wider effect of
extinguishing obligation from wrong. Gaius stated
that one of the settled rules of law was that penal
actions springing from delict, such as those arising
from furtum, rapina, damrtum injuria datum and
injuria, were not granted against the heir of the
person who committed the delict. But a rule was
introduced at the beginning of the Empire that the
estate of the wrong-doer could be made liable for his
wrongful acts. The personal action for the recovery
of the stolen property (cortdictio furtiva) could be
brought against the heirs of the thief. On the other
hand, a delictual obligation was not extinguished by
the death of the person injured, for, as stated in the
Institutes, his heir could bring an action unless the
delict in question was injuria.
(6) Ope exce ptionis. —Where there was an agreement
between the person wronged and the wrong-doer
(having several claims against each other) that the
former would not exact payment, the delictual
liability of the latter was discharged. The defendant,
in such cases, when sued for the delictual obligation,
could defeat the claim by the exceptio pactum de non
potendo (a pact not to sue).
Roman-17
11. Source of obligation. —The source of obligation is
surveyed in a tabular form:
OBLIGATION
1
Contract Quasi-contrac Delict Quasi-delict
Real Verbal Literal Consensual

(re) (vcrs) I
--T T
Emplio Locatlo (1 Dotis diction. Societas Ma'da-
vendition condu- (partner-) turn
Nomi- Inno- (2) Jurata prorniSSlo
ction ship (agency)
nate minaic liberti
(3) Voturn.
(4) Stipulation.
1
Mutuum Commodatuni Deposituni Pignus
IL
ROMAN
LAW
Dr. L. Kabir
I^p
Ain Prokashan,. Dhaka
Roman Law
By
DR. Lutful Kabir

LL. B. (Cal.), Ph. D. (London)
Faculty of law, University of Dar es Salaam, Tanzania;
Formerly, Dean and Head of the Department of Law, Dhaka
University; Ex-Military Officer (War Medalist); University
Gold Medalist; Kedarnath Banerjee Gold Medalist;
J. Chawdhury Silver Medalist; Sir William Ritchie Prizeman;
University Prizeman; S. N. Law College Prizeman
go]
AIN PNOKASHAN
Ain Prokashan : Dhaka

7th Edition: June 2014
6th Edition: May 2011
5th Edition: November 2010
Published by:
Md. Saiful Islam
Mn Prokashan
37, Islamia Market, Nilkhate, Dhaka-1205
34, Northbrook Hall Road, Banglabazar, Dhaka- 1100
Tel: 01552-639994
&
Mrs. L. N. C howdhurany
Balukhali, Ukhia, Cox'sbazar
All rights reserved by the Publisher
Type Setting;
Ain Prokashan
34, Northbrook Hall Road, Banglabazar, (first floor)
Dhaka-1100
Tel: 01552-639994
Price
TK 250.00 Only
ISBN: 984-8372-00-7
Available at
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Dhaka- 1205 Chittagong -4000 Nilkhate,
Tel : 01817104374 Eel: 01711969835 Dhaka- 1205
Eel: 01818608817
FOREWORD
Professor Georg Dahm, LL.D.

Dean of the Faculty of Law, University of Dhaka.
DHAKA
The 27th January 1963
The Roman Law, down to our present days, is one of the
fundamentals of legal thinking all over the world. There are
many systems of law, which, directly or indirectly, derive
from Roman Law, which cannot be properly studied and
understood without the knowledge of Roman Law. But apart
from its significance as source and origin of positive laws
Roman Law enshrines an exhaustible wealth of experience
and practical wisdom rooted in the nature of man and in the
essence of things. So far it will always keep its importance as
ratio scripta whenever and wherever man submits to the Rule
of law. Roman Law can be studied in different ways. It may be
treated as a unique phenomenon of history in its connection
with contemporary ancient culture and life. But it is also one
of the objects to be achieved by legal education to reduce
Roman Law to its essentials and to disclose those features of
Roman Law which enable it to serve as an introduction into
the knowledge of civil law, even independently of its
historical background.
Mr. Kabirs book is a remarkable approach to this
pedagogic ideal. Written in a simple and transparent language
it gives a very useful introductory survey of the subject
explaining with lucidity the basic concepts and maxims of
Roman Law and making them understandable to beginners
and to advanced students as well. I have no doubt that it will
attract the interest and admiration of students and teachers,
and that it will help to promote and deepen the understanding
of Roman Law, wherever the English language is used as a
means of introduction.
Dr. Georg Dahm

PREFACE
This book is primarily intended for the students of law,
especially for those who begin their study of Roman Law
without any acquaintance of Latin language. There are many
standard works on the subject, but I have a feeling, as a
teacher on the subject, that our students need a book of this
nature with translation of Latin terms and expressions.
As it is a book for the beginners all minute details and
discussions have been left out. For convenience of study the
work has been split up into ten Chapters. The first Chapter
deals with introduction showing the superiority of the
Romans in law and the value of Roman law; the second
Chapter with the history of Roman law down to Justinian; the
third with the division of Roman law; the fourth with the law
of persons; the fifth with the law of things; the sixth with the
law of succession, both testamentary and intestate: the
seventh with the law of obligation; the eighth with the
magistrates and the judges; the nineth with the law of actions
and procedure in civil suits; and finally the tenth Chapter
with the criminal courts and procedure.
I claim no originality in preparing this book. I have
consulted standard books on the subject freely and made use
of their materials. For facility of reading and continuity ot
discussion it has not been possible to quote all sources. I take
this opportunity to acknowledge my debt to such standard
works as Myers' Rome : its Rise and Fall: How and Leigh's
History of Rome; Shuekburgh's History of Rome: Girard's
Roman Law; Lee's Historical Conception of Roman Law;
Sherman's Roman, Law in the modern world; Mackenzie's
Studies in Roman Law; Hunter's Introduction to Roman Law;
Sir Henry Mains Ancient Law; Jolowicz's Historical
Introduction of the study of Roman Law: Leage's Roman
Private Law; Buckland's Manual of Roman Private Law;
Bagchi's Roman Private Law: Chalmers Students' guide to
Roman Law; Kelke's Primer of Roman Law; Walton's
Historical Introduction to the Roman Law; Salmond's
Jurisprudence: and many others.
viii Preface
This book was rushed through the press to meet the urgent
demands of the students. Consequently some printing
mistakes have escaped the vigilant eyes of the proof readers
and certainly caused some damage to the accuracy. I offer my
regret for this inconvenience. Readers are requested to kindly
refer to the errata provided at the end of the book.
I express my sincere thanks and regards to my publisher
whose keen interest has made this publication possible.
My thanks are also due to the printer, and the proof
readers for their sincere co-operation with my publisher.
I am particularly grateful to Dr. Georg Dahm, Professor of
Law of the University of Kid (Germany), now the Dean of the
Faculty of Law of the University of Dhaka for sparing his
valuable time to go through this book and for the favour of
writing a foreword to my humble work.
L. KABIR
Dhaka,
January 27,
1963
TABLE OF CONTENTS
CHAPTER—!
Introduction
Page
1. Superiority of the Romans in Law--------------------------1
2. The Value of Roman Law -------------------------------------1
Causes of success or Roman Law----------------------------4
CHAPTER-11
History of Roman Law down to Justinian
1. Division of Roman History----------------------------------6
2. The Roman People --------------------------------------------6
3. Classes of people in early Rome-----------------------------8
4. Government of Rome during the Regal period -----------10
5. Reforms of Servius Tullius ---------------------------------14
6. The Republic --------------------------------------------------15
7. The Senate under the Republic -----------------------------18
8. The struggle between the Patricians and the Plebeians 18
The Twelve Tables--------------------------------------------21
9. Agencies of the development of Roman Law -------------26
10. The Jurisconsult ---------------------------------------------29
11. The Praetor----------------------------------------------------32
12. Comparison between English and Praetorian
Equity---------------------------------------------------------36
Contrast between Praetorian and English Equity ------37
13. The Legislative Assemblies under the Republic ---------37
14. Lex --------------------------------------------------------------
15. Jus --------------------------------------------------------------40
16. Fas--------------------------------------------------------------40
17. Jus Civile ------------------------------------------------------41
18. Jus Gentium---------------------------------------------------41
19. Jus Naturale---------------------------------------------------42
20. The Empire----------------------------------------------------
21. Senatusconsulta----------------------------------------------46
22. Imperial Constitutions--------------------------------------48
Table of Contents
Page
23. The Responsa Prudentium -49
24. The Responsa Prudentium and the English Case-law-- 51
25. Roman jurisprudence ---------------------------------------52
26. Earlier Codification-----------------------------------------54
27. Justinian's Codification------------------------------------55
28. Bluhme's discovery------------------------------------------58
29. Justinian's achievements in Roman Law----------------58
30. Sources of Roman Law--------------------------------------61
CHAPTER—ill
Division of Roman Law
01. Division of Roman Law-------------------------------------62
CHAPTER-1V
The Law of Persons
1. Person---------------------------------------------------------
2. The causes of slavery----------------------------------------
3. The legal condition of a slave------------------------------65
4. The way in which a slave could become free--------------68
5. Laws restricting manumission----------------------------70
6. Classes of persons at the beginning of the Empire------71
7. Justiniari's changes relating to libertas------------------73
8. Patronsright ------------------------------------------------
9. Q uasislaves ----------------------------------------------------
10. Civitas---------------------------------------------------------
11. Capitis deminutio -------------------------------------------77
12. The Roman family-------------------------------------------78
13. Agnation------------------------------------------------------80
14. Cognation-----------------------------------------------------82
15. Patria potestas and its effects------------------------------82
16. Origin of Patria Potestas -----------------------------------85
17. Justiae nuptiae ----------------------------------------------- 86
18. Essential conditions of Justiae nuptiae------------------88
xi
Page
19. Kinds of marriage with manus -88
20. Effects of marriage-------------------------------------------89
21. Do; --------------------------------------------------------------91
22. The Donatio propter nuptias -------------------------------93
23. Termination of marriage -----------------------------------94
24. The Law of divorce -------------------------------------------94
25. Legitimation --------------------------------------------------96
26. Adoption-------------------------------------------------------97
27. Arrogation ----------------------------------------------------gg
28. Comparison and contrast between adoption and
arrogation---------------------------------------------------101
29. Termination of Partia potestas--------------------------102
30. The Law of emancipation ---------------------------------103
31. Persons in mancipii causa--------------------------------104
32. The Law of guardianship----------------------------------105
33. Tutela impuberum -----------------------------------------106
34. The powers and functions of the tutor ------------------108
35. The rights and liabilities of a minor under
RomanLaw--------------------------------------------------109
36. Actions against the tutor----------------------------------110
37. Who could be a tutor----------------------------------------111
Excuse for tutela -------------------------------------------- Ill
38. Termination of Tutela impuberum ---------------------- ill
39. Tutela mulierum -------------------------------------------112
40. Curator-------------------------------------------------------113
41. Comparison between Tutor and Curator ---------------115
42. Restitutio in integram-------------------------------------117
CHAPTER—V
The Law of Things
1. Res -------------------------------------------------------------118
2. Classification of res ---------------------------------------118
3. Dominium (ownership) -----------------------------------121
xii Table of Contents
Page
4. Possession ---------------------------------------------------122
5. Modes of acquiring ownership of res singulae ---------124
Natural mode -----------------------------------------------125
Civilmode ---------------------------------------------------132
The difference between Usucapio and Prescriptio-----135
Justinians changes in usucapio and prescriptio ------136
Usurpatio and its effects-----------------------------------137
6. Jura in re aliena --------------------------------------------140
Servitude-----------------------------------------------------141
Praedial servitude ------------------------------------------142
Emphyteusis-------------------------------------------------150
Superficies---------------------------------------------------151
Pledge---------------------------------------------------------152
CHAPTER—VI
The Law of Succession
1. Character of succession------------------------------------157
2. Kinds of succession-----------------------------------------158
3. Classes of heirs----------------------------------------------158
4. Horror of intestacy -----------------------------------------159
5. Nature of Roman Will --------------------------------------160
6. Essentials of Roman Will----------------------------------161
Difference between mancipatory will and
modernwill--------------------------------------------------163
Disinherison ------------------------------------------------165
Institution of heirs -----------------------------------------166
Substitution -------------------------------------------------167
Testamenti factio-------------------------------------------169
7. Querela inofficiosi testamenti----------------------------173
8. How a will became invalid --------------------------------174
9. Codicil--------------------------------------------------------176
10, Legacy---------------------------------------------------------176
11. Fidei-commissa---------------------------------------------184
12. Difference between a legacy and a fidei-commissa---- 185
0
Table of Contents xiii
Page
13. Intestate Succession ---------------------------------------186
The order of succession under Twelve Tables----------186
Defects of intestate succession under Twelve Tables - 187
Bonorum possession---------------------------------------188
The order of succession according to Praetors---------189
Imperial changes in intestate succession before
Justinian----------------------------------------------------190
The order of succession under Justinian ---------------191
Widow's right of succession-------------------------------195
Natural Children-------------------------------------------195
Succession to freedman -----------------------------------195
Succession to Latini Juniani and Dediticii ------------196
Succession to a fihiusfamilias ---------------------------- 196
CHAPTER—VU
The Law of obligation
1. Obligation---------------------------------------------------198
2. Contract -----------------------------------------------------198
3. Classification of contract---------------------------------200
contract re or (Real contract) -----------------------------200
Classification of nominate real contract --------------201
Contract Verbis (Verbal contract)------------------------205
Joint debtors and creditors-------------------------------208
Fidejussio (the law of surety) -----------------------------208
Contract literis (Literal contract)------------------------209
Consensual contract---------------------------------------210
4. Quasi contract ----------------------------------------------223
5. Transfer of contractual rights and liabilities ---------225
6. Extinction of contractual obligation -------------------226
7. Delict---------------------------------------------------------230
8. Quasi delict--------------------------------------------------237
9. Transfer of delictual rights and liabilities-------------238
xiv Table of Contents
Page
10. Discharge of delict------------------------------------------238
11. Source of obligation----------------------------------------239
CHAPTER—VU!
Magistrates and Judges
1. Judicial system during the Republic---------------------241
2. Judicial system under the Empire -----------------------245
CHAPTER—AX
Actions and Procedure
1. Civil Procedure----------------------------------------------248
Legis actiones------------------------------------------------248
The formulary system -------------------------------------252
Extraordinary Procedure----------------------------------256
2. Appeals-------------------------------------------------------257
3. Litis contestatio and its effects ---------------------------258
4. Actions -------------------------------------------------------259
5. Limitation of actions --------------------------------------262
6. Interdict------------------------------------------------------262
7. Judgment-----------------------------------------------------264
8. Modes of execution of judgment in early times --------264
CHAPTER—X
Criminal Courts and Procedure
1. Criminal Courts --------------------------------------------267
2. Procedure in Criminal trials -----------------------------272
3. Crimes--------------------------------------------------------273
4. Character of Criminal system----------------------------274
APPEND —XI
Questions-----------------------------------------------------------275
Index-----------------------------------------------------------------289
TABLE OF DATES B.C.
BC.
Foundation of Rome
The Republic
Twelve Tables
Lex Canulcia
Praetor urbanus
Lex Poetelia
Jus Flavianum
Lex Ogulnia
Lex Hortensia
Praetor peregrinus
Lex Cincia
Jus Aelianum
Lex Aebutia
Consulship of Cicero
Julius Caesar killed
Cicero Killed
Lex Falcidia
The Empire
Lex Juliae de adullcriis
TABLE OF DATES A.D.
Lex Aelia Sentia

Lex Fufia Caninia
Lex Papia Poppaea
Death of Augustus
Reign of Tiberius
Lex Junia Norbana
Reign of Claudius
Sc. Lergianum
Sc. Velleianum
Reign of Nero
Reign of Vespasian
Sc. Pegasianum
Lex Petronia
Reign of Trajan
Reign of Hadrian
Reign of Antoninus Pius
Sc. Tertullianum
Institutes of Gaius
Reign of Marcus Aurelius
Sc. Orfitianum
Reign of Septimius Sever-us
Reign of Caracalla
Edict of Caracalla extending citizenship
Assassination of Alexander Severus
(end of classical period)
Reign of Diocletian
Codex Gregorianus
Conversion of Constantine to Christianity
Final Division of Empire
Law of Citations
Codex Theodosianus
Reign of Zeno
End of Western Empire
Reign of Justin
Reign of Justinian
Codex published
Digest and Institutes published
Codex repetitae Praelectionis
Roman-2
CHAPTER-1
INTRODUCTION
1. Superiority of the Romans in Law :—In various
departments like philosophy, poetry, oratory and fine arts,
the Greeks could not be surpassed but they contributed almost
nothing to the science of jurisprudence. In philosophy they
greatly excelled the Romans but in the cultivation of law, the
Romans were far ahead not only of the Greeks but all other
nations of antiquity. The Romans were eminently a practical
people and they were the first nation who successfully
cultivated law as a science. Apart from their general ability in
the business of legislation, their judicial system was far more
favourable than that of the Greeks to the improvement of
jurisprudence and to the gradual formation of a body of legal
and equitable laws. For several centuries, under the Republic
and the Empire, the praetors who were changed annually,
exercised the civil jurisdiction at Rome. It became the practice
for every new praetor on; his accession to office, to publish, in
the form of edicts, the rules which he intended to observe in
administering justice during the tenure of his office. These
rules were handed down by the praetors to their successors,
and were modified and improved in the course of time to suit
the exigencies of the community. It was chiefly by these edicts,
by the decisions of the judges and by the scientific works of
eminent lawyers, aided by the direct action of the legislature,
that the ancient institutions were refined and the general,
body of the Roman law was gradually moulded into a system
and brought to that state of perfection which it ultimately
attained.
2. The value of Roman law and the causes of its
success :-
The Roman law is valuable at the present day on the
following grounds :-
2 Roman Law Chapter—i
(1) Its intrinsic merit.—Roman law is valuable as a
substantive part of our knowledge of law. The discussion of
the great Roman jurists will always remain models of legal
reasoning which helps a lawyer in discovering the general
principles which ought to be applied to a particular set of
facts. Roman law has a direct professional utility for lawyers
by reasons of the materials it supplies for the practical
understanding of modern laws. It is the key to the
understanding in a general way of all the modern systems of
law which have a Roman background. The study of Roman
law greatly assists the acquisition of a correct style of legal
expression which is useful to a lawyer. It possesses a practical
utility for modern jurists, not as giving an immediate
knowledge of existing laws but because by perfecting the
juridical intelligence it gives a better comprehension of all
laws whatsoever. The analysis of the discussions of Roman
jurisconsults is an excellent school of juridical reasoning and
the controversies turn on a point which is foreign to ordinary
environments. The style of the Roman jurists is simple, clear,
brief and precise. No law is more fitted for intellectual
training than the Roman law.
(2) As an introduction to legal terminology and method.—
The terms and classification of the Roman law have been
retained by the modem Droit civil. We learn in the Roman law
the precise meaning of legal terms current in many countries.
The Roman law, it has been said, tends to become the lingua
franca of universal jurisprudence.
(3)As a study of legal history.—This is the greatest merit of
the Roman law to a student of the present day. The law of the
corpus juris is the outcome of a history of more than thousand
years. During the long period from B.C. 450, when "the Twelve
Tables were published to A.D. 565, when Justinians Novels
appeared, we are able to follow the slow growth of the law. We
find how the rude customary law of a primitive pastoral
people was shaped and moulded to fit the needs of a great
Imperial nation whose mission it was to civilise the western
Chapter—i Introduction 3
world. No other study is so well calculated to teach us that

legal rules are permanent and universal in their nature, and
what are temporary and local. The modern law is fully
understood when we study its roots in the ancient world and
trace its development down to the present time. In other words
our study of historical jurisprudence is incomplete' unless we
study ancient institutions and laws and compare those with
the modern laws. Roman law is an incomparable instrument
of historical education and at the present time there is no
system of law which affords a more favourable field for
research than that of Rome.
(4) Connection of Roman law with modern law.—Roman

law has given to the modern law much of its substance and a
form, an arrangement and a method which will last as long as
society exists. It has become, as Jhering Said, an element of
civilisation. The Romans law is the greatest single legacy
which the ancient world has be-queathed to the modern. It is
not incorrect to say that the modern civil law is the Roman
law, so modified and adapted. Roman law is found in its close
affinity with many of the modern systems of law and with the
whole structure of international law. Grotius, the founder of
modern international law, based his postulates directly from
the Romans that there is a determinable law of nature which
is binding on states inter se and the states inter se are related
to each other like the members of a group of Roman
proprietors. Hunter observed that the Roman law furnishes
the basis of much of the law of Europe and has proved an
almost inexhaustible storehouse of legal principles. In the
history of legal conceptions it occupies a position of unique
value. It forms a connecting link between the institutions of
the Aryan forefathers and the complex organisation of
modern society. Its ancient records carry us back to the dawn
of civil jurisdiction and there is exhibited a panorama of legal
development such as can not be matched in the history of the
laws of any other people.
4 Roman Law Chapter-1
(5) Use of Roman law in the absence of any authority.—The

Roman law is useful in the decision of questions which are
not settled by statute, precedent or usage. In Acton v. Blundell
(12 M.W. 253), Chief Justice Tindall observed that in deciding
a cause upon principle', where no direct authority can be cited,
it affords the soundness of the conclusion, if it is supported by
Roman law. Similarly in Taylor v. Caldwell (fire case of 1881)
the Digest was cited in support of the defendant's contention
in the absence of any English precedent and the court accepted
the contention of the advocate in arriving at its decision.
Causes of success or Roman law :—The extra-ordinary
success of the Roman law is due mainly to merit but partly to
opportunity. No other nation of antiquity built up a legal
system which, except in the unchanging East, would have had
the chance of surviving. The following among others are the
causes of success of Roman law:
(1) Its universal character.—The great problem which, the
Roman lawyers had to solve was how to make their ancient
local law applicable to a great Empire. They had to examine
what customs and rules were local and too peculiar to be
extended, and to substitute for those rules by which no
reasonable and fair minded man could object to be bound.
They had to take the rude laws and customs inherited from
their primitive ancestors, and to create out of them law which
should be applied throughout the civilised world. It was a
great task, and it was performed with wonderful success.
Rome had, for example, very ancient formal rules about sale
but these were not suitable for the Roman Empire or for the
Romans to use in dealing with the foreign trader. They must,
therefore, lay down rules as to sale which should have no
local colour in them, which should be suitable for every trader
to whatever country he belonged. All the laws of obligations
and contracts were in this way denationalised.
(2) Its fulness and refinement.—Next to its universality it
was the fulness and refinement of the Roman law which led
Chapter-1 lntoduction 5
the European people to adopt it. Rome had lived through

centuries of refinement and civilisation.
(3) The prestige of Rome.—The prestige still attached to the
great fallen Empire helped to win acceptance for her laws.
Rome had been the great centre of civilisation for ages, and
the traditions of her wonderful organisation had never died
away.
(4) The support of the Church.—The immense influence of
the mediaeval Church was cast at the crucial moment in
favour of the Roman law. In the confused period when each
race had its own laws and ajude had to decide each case not by
the territorial law but by the personal law of the defendant,
the Church found it best to adopt the Roman law. Questions
affecting the property or the priests of the Church were
governed by the Roman Law.
CHAPTER---H
HISTORY OF ROMAN LAW DOWN TO JUSTINIAN
1. Division of Roman history :—The history of Rome is
commonly treated into three periods : (1) The Regal period
(753 B.C-510 B.C.), (2) the Republican periods (510 B.C.-31
B.C.) and (3) the Imperial period (31 B.C.-565 A.D.)
The Regal period begins from the foundation of the city of
Rome. During the Government of the kings the history of
Rome is obscured by doubtful traditions. Nothing is definitely
known about the origin of the Romans and the earliest
history of the city. The legendary date of the foundation of the
city is 753 B.C. About the middle of the eighth century B.C., a
band of colonists settled on the northern frontier of Latium,
choosing the central height as the site of their new home in a
group of hills on the left bank of the Tiber, about 15 miles
from the river mouth.
It is said that Rome was governed by seven kings during
the period from 753 B.C. to 510 B.C,: (1) Romulus (753-716
B.C.), (2)-Numa Pompilius (715-673 B.C.), (3) Tullus Hostilius
(763-642 B.C.), (4) Ancus Marcius (642-617 B.C), (5) Lucius
Tarquinius Priscus (616-579 B.,C), (6) Servius Tullius (578-535
B.C.), and (7) Tarquinius Superbus (535-510 B.Q. Romulus was
the founder and the first king of Rome. He divided the
population into two classes patricians and plebeians. He
established the senate and the comtia cur(ala
2. The Roman people :—According to the legend the
Roman people was divided into three tribes : the Titles, the
Ramnes and the Luceres. The writers connected the Ramnes
with Romulus (the chief of the Latins), the Titles with Titus
Tatius (the chief of the Sabines), and Luceres with Lucumon
(the chief of the Etruscans), Many modern, historians believe
that the legendary division of the people into three tribes
points to tile fact that these three tribes were three different
Chapter—I! History of Roman Law 7
races, viz, Latins, Sabines and Etruccans, which united to
form the infant city. It is probable that the three tribes were
ancient divisions of the people which existed long before the
foundation of Rome. It is also probable that the tribes (like
most of the groups into which we find the Aryans divided at
various periods) were, in their origin, groups of persons bound
together by a political bond.—
Curiae —Each of the three tribes was divided into ten
curiae and there were in all thirty curiae. The curiae were
division of the people based on kinship real or supposed. Each
curiae in all probability occupied a definite territory. The
mere fact of residence or owning land in the territory of a
curiae would not have made a Roman a member of it. In order
to be a member of the curiae he must belong to one of the
families of which the curiae was composed. The curiae had its
priest, called a curio, and its chapel or place of meeting was
also called curiae. One of the priests or curfones was elected at
curio rnaximus, to preside over the curiones, who formed a
college of thirty priests. The free men of full age who belonged
to the curiae had a right to vote at the meeting of the curiae
called comitia cunata held in the market place. A curiae was
divided into gentes.
The gentes or gentiles.—The gens or clan was an
association of families related through males, bearing the
same family name, and claiming descent from a common
ancestor. According to Twelve Tables the succession of an
intestate would go to suf, failing the sul to agnates, and failing
agnates to gentiles. The-gerttiless are distinguished from the
agnates. Now the question is at what degree of relationship
the class of agnates is to close and the class of gentiles is to
open. No satisfactory answer has been suggested by the
authorities. According to Mommsen, any one who had been
able to prove his relationship in the male line with the
deceased could claim as an agnate, failing any such person the
estate went to the gens or clan to which the dead man
8 Roman Law Chapter—II
belonged. But many of the gentiles were so far removed in

blood from the deceased that it was difficult to trace out the
relationship. For succession a line had to be drawn. It a
gentile who were unable to bring such evidence. He was an
agnate in a narrow sense.
According to another theory the line was drawn at a fixed
degree of relationship. Agnates were all relations on the
fathers side upto and including to sixth degree and the rest
were gentiles. This theory is supported by an analogy from
Hindu law where a similar line is drawn between sap irida
relations through males upto the sixth degree inclusive and
samanodaka or all those persons who bear the same family
name. All relations through males within the sixth degree
inclusive were agnates and those of the seventh degree or more
remote were gentiles.
We, therefore, find that a group of families consliLuied the
gens, a certain number of gentes constituted the curiae, and a
group of curiae constituted the tribe and several tribes made
up the state.
3. Classes of people in early Rome :—There were
different classes of people in early Rome, viz. (1) patricians, (2)
plebeians, (3) clients and (4) slaves.
(1) The patricians (children of the fathers),—The
patricians were probably the descendants of the original
Latin settlers of Rome. They belonged to nobler and
aristocratic families and claimed to be the dominant class.
They enjoyed a monopoly of civil, political and religious
rights, all rights and privileges of citizenship, viz, jus
commerce (the right to trade), jus connubii (the right to
marry according to the civil law or Rome), jus suffragium
(right to vole in the public assemblies), jus honorum (the right
to hold office) and Jus provocation's (the right of appeal) from
the decision of a magistrate to the people. They were the
citizens proper in ancient Rome. The cornitia curiata was
composed of the patricians alone. The priests of the state
Chapter—TI History of Roman Law 9
religion belonged to these privileged families. They alone

possessed the knowledge regarding auspices, portents and
days sacred and profane, on the due attention to which the
safety of the community depended. The early senate and the
comitia curiata had been formed from this privileged class.
(2) The plebeians (multitudes or the masses).—The
plebeians were of varied origin. They came to Rome as settlers
or traders or perhaps sometimes as captives who were not
made slaves. They included a considerable number of the
conquered aborigines of the country. They were excluded from
all privileges : they had no civil rights and duties', 'nor the
power to Vote in the curiae, they could not hold any office or
marry among the citizens. They could, however, trade and
perhaps farm the land under the citizens. They were
considered by the patricians as an inferior class. Their
position was very anomalous; they were neither admitted to
the rights nor to the law's of the citizens. After the Servias
reform they acquired the status of Roma citizenship. A large
part of the early history of Rome is made up of the struggles of
the plebeians to secure the economic, political and social
equality with the patricians.
(3) The clients.—The world clients means hearers or
dependants. Their origin is ascribed, partly to the
manumission of slaves whose descendants were clients,
partly to the admission to the city of homeless wanderers who
placed themselves under the protection of a patrician, partly
to members of neighbouring communities who were
conquered and allowed to come into the city on condition of
attaching themselves as clients. The conquered people in
some cases became clients of the Commander of the Army to
whom they surrendered and hereditary clients of the gens to
which they belonged. Members of outlying communities who
had made this kind of surrender were, perhaps, allowed to
remain on their own lands, no longer as owners in the strict"
sense of the term, but upon a precarious tenure as clients of a
Roman patrician. The clients were free persons but no

citizens. They had in law no civil rights, but was obliged to
look to his patron to protect him against wrong. If he was
allowed to go to the comita he would go not as a member but
as an attendant of his patron. He stood to his patron in a
relation which: in many of its incidents, resembles that of a
vassal to a feudal lord. He was bound to perform certain
services for his patron, he must attend him in war, and many
cases he farmed lands which belonged to the 'patron,. In
return, the' patron was bound to protect the client. In the Regal
period it is said that a large number of 'clients'had been settled
on public lands as clients' of the king and the downfall of the
monarchy set them free and they' gradually acquired
ownership in land.
(4) The slaves.—There was a fourth class of people called
servior slaves who formed no part of the state and enjoyed no
rights. They were rightless and dutiless people. The Romans
considered them as chattels and they formed a part of
property of the Romans. They were purchased and sold like
any other property and they were heritable by the heirs of
their masters.
4. Government of Rome during the Regal period :-
The Government consisted of (1) an elected king, (2) a senate
and (3) a general assembly of the people called the comitia
curiata
(1) King—The king was not hereditary but elected for life
by the comitia upon the proposition of senator. He was the
head and the ruler of the Roman community. He governed the
city either personally or through his representatives and he
had the power of life and death over the citizens. To him
belonged the command of the Army, the administration of
justice. (civil and criminal) and the general superintendent of
religion. He declared war and made peace: acted as supreme
judge and law-giver. He was responsible for the state worship
being the pontfex maximus (chief priest) of his people. All
Chapter-11 History of Roman Law 11
religious colleges were under his control and he took
cognisance of all religious offences. He summoned the com(tia
and only he could initiate legislation, although, the comita
curlata could reject measures proposed by him. He
occasionally consulted the senate but he was not bound to
follow their counsel. On the death of a king an inter-rex (a king
for the interval) was chosen by a council of the people and the
nominee of the tnterrex generally became the king.
Leges reg(ae :—In the infancy of the Roman state, the
people were governed by the absolute authority of their kings.
The laws given by the kings were nothing but the customs
consisted mainly of religious rules. These laws of early kings,
known as leges regiae, were the first rudiments of
jurisprudence. When legislation was resorted to, it was
generally to confirm, add to, or modify, rather than to
supersede, these primitive usages. During the Regal
government at Rome, the laws were prepared by the king with
the approbation of the senate and confirmed by the people, at
first in the corn itia curiata and after the reforms of Servius
Tullius, in the comttfa centuriata. These laws were collected
into a body by Sextus Papirius, a Roman lawyer, who is said to
have lived in the time of the last king, Tarquinius Superbus.
These laws of religious rules were called after his name asjus
civile Papiriartunrn.
(2) Senate.—The senate was an administrative and
deliberative council of nobles or persons distinguished by
their rank, wealth and talents. It was composed originally of
100 and afterwards extended to 300 members nominated by
the king for life from patricians. It was an advisory council
but its views not legally binding on the king. But the
experience and social influence of members of the senate
added to their advice a peculiar weight. It was difficult for the
king to neglect their advices. In important affairs the king
was not permitted to determine on a course of action without
first asking the senate. Usually the king did not take any
important decision without consulting the senate.
Functions of senate :—The first special function of the

senate was the election of a king in case the king died without
mentioning a successor. This was done in the following way
one of the senators was chosen as a between king' or 'king for
an interval" On or before the expiration of five days this
temporary king chose another of his colleagues as an
tnterrex. And thus the kingly office continued to be filled by
this system of rotation until the permanent king was
nominated. The second important function of the senate was
to examine carefully every law or resolution passed in the
public assembly. If it was found to violate the constitution of
the state, or any treaty Rome had entered into with another
city, or the rights of a citizen, it had the power to nulify it by
refusing to give to the measure the vote of ratification
required to render it legal and binding. The third "function of
the senate was to give counsel to the measure the vote of
ratification required to render it legal and binding. The third
"function of the senate was to give counsel to the measure the
vote of ratification required to render it legal and binding.
The third 'function of the senate was to give counsel to the
king whenever he desired it. The opinion of the senators was
specially sought by the king on resolutions which he was
proposing to lay before the assembly of citizens. The king thus
learnt beforehand whether they were likely to ratify the
proposal after its approval by the people. So we find that the
real legislative body during the early monarchical period was
not the king himself but the king acting in combination with
the comitia curiata and the senate.
(3) Comitia curiata.—This was the most ancient legislative
assembly in Rome, composed exclusively of patricians. The
Roman people were originally divided into three tribes and
each tribe was composed of ten curiae. Hence their assembly
was called comitia curiata. The male members of these cariae
who were capable of carrying arms formed the comitta
curiata. This body had no power of initiating legislation. It
met only when called together by the king and could merely
assent to or negative such proposals as laid before it by him

but it had no right of discussion or amendment. Its decision
was not valid without the authorisation of the senate. The
real power of the comitia curiata lay in the fact that no change
affecting any public or private law could be made without its
consent. Thus it was necessary for the king to obtain the
consent of the comitja curiata if, for example, he wished to
break a treaty by declaring war. For private law it met under
pontificial presidency, such as for confirmation of wills and
adroqation (adoption of one paterfamilias by another). When
it met for validation of adrogation or for sanctioning of wills,
it was called the 'comitia calata.' It was the com(tia curiata
that, acting upon proposals laid before it by the king, enacted
the laws of the state. Its final vote was needed to confer
imperium (authority) on the elected magistrates. The senate,
whose function was to nominate the king and tenderhim
advice, was an inner body of the comit(a curtata. After
nomination by the senate, the king was elected by this body.
Method of voting in comitia cariata.—The method of
voting in the comitia cariata was not by individuals, but by
curies, that is, each curiae had on vote, and the measure was
carried or lost according to the rule whether the majority of
the curies voted for or against it. The method of voting was
like this : Let us suppose that three curiae Ci, C2, C3, were
present in the comitia and C had 150 men, C2 200 men, and
C3 240 men. Now according to group method of voting the
result may thus be tabulated:
Yes No ResulL
Cl 78 72 +1
C2 40 160 -1
C3 121 119 +1
Here + 1 means I vote for the proposed measure and-1
means 1 vote against it. The result is 2 votes for and one vote
against the measure. Therefore the measure is carried.
5. Reforms of Servius Tullius :—To the end of the Regal
period, Servius Tullius, the sixth king, introduced far
reaching changes in the constitution of the Roman state. He
divided the entire population—patricians and plebeians—
mainly for fiscal and military purposes into five classes
according to their wealth. Each class was sub-divided into
centuries. The first class had 80 centuries, the second, third
and fourth classes 20 centuries each, and the fifty 30
centuries. With 5 additional centuries of musicians and
others, and 18 centuries of knights or cavalry there were in all
193 centuries. The first class comprised of those who had at
least 20 acres of land, the second class 15 acres, the third class
10 acres, the fourth class 5 acres and the fifty class 2 acres.
The first class was bound to supply 80 centuries of soldiers,
the second class 20 centuries, the third class 20 centuries, the
fourth class 20 centuries, and the fifth class 30 centuries of
soldiers. Besides these the army was completed by 18
centuries of cavalry made up of richest patrician land owners
and 5 centuries of musicians, working men and
complementary men. In this way the whole people were
recognised and organised for military and fiscal purposes.
The military divisions were also employed as voting units
in the assembly of the people known as comitia centuriata or
the assembly of hundreds, which became the great
constitutional body during the Republican period made up of
patricians and plebeians, this new assembly in course of time
absorbed most of the powers of the comitia curtata and the old
meeting of the curies ceased to have any real importance.
Each of the century had one vote in the new assembly. The
comitia centunata was called together to pass laws, to elect
magistrates, to decide on peace and war, and to act as the
supreme Court of appeal in questions involving capital
sentences, such as death or loss of caput (status) of the Roman
citizen, Every citizen had the right of appeal against a capital
sentence to this Assembly (provocation ad populum).
Chapter—II History of Roman Law 15
Manner of voting in comitta centuriata.—The manner of
voting in the comtia centurfata gave the rich a higher voting
power than the poor. For the first class had 80 centuries and
the knights had 18, and the two together made up more than
half of the whole number of 193. In the voting the knights
voted first, and then class I and both the classes belonged to
the patricians. The voting was stopped when the majority of
97 votes had been obtained. If they agreed that there was a
majority, it was unnecessary for the other classes to vote at
all. The last centuries scarcely ever received a chance to vote.
The grouping of centuries was adjusted in such a way that rich
people, who were the patricians, had a majority of votes and
preponderating weight. Consequently the plebeians had very
rare occasions to exercise their franchise.
The Servian reform could not very much improve the
condition of the plebeians. The arrangement simply give
them the status of Roman citizenship but not the whole of the
civil rights. Still this reform was an important step towards
the establishment of social and political, equality between
the two great orders of the state—the patricians and plebeians.
The reform assigned to the plebeians duties only and not
rights. But being called upon to discharge, the most important
duties of citizens, it was not long before they demanded all the
rights of citizens, and as the bearers of arms they were able to
discharge their demands. Indeed their position in the state
was readically changed. They gradually demanded from the
patricians one concession after another until they gained all
the rights of full citizenship.
6. The Republic (510 B. C. —31 B. C.) —A revolution took
place by the expulsion of Tarquin, the 7th and last king of
Rome and the Royal authority was abolished with the
overthrow of the monarchy in 510 B.C. The Romans for ever
hated the name of king and found it necessary to introduce
certain changes in the constitution.
Roman-3
To supply the place of the king two consuls (lit, colleagues)

were elected from the order or patricians by the comitia
ceritur(ata in which the plebeians had a vote. These
magistrates were to remain in office for a year and to exercise
most of the powers previously enjoyed by the kings. Each of
them had equal authority and had the power to obstruct the
acts or veto the commands of the other. This was called the
right of intercession" which was a check upon the other. They
were changed annually to prevent them from abusing their
powers. The two consuls held the highest place in the
Republic. All other magistrates and officers except the
tribunes, were subordinate to them. They presided in the
senate and executed its decrees; they levied the troops and
enforced military discipline. It was their duty to assemble the
senate and the comitia and to command the armies in times
of war.
In times of crisis or great public danger one special officer
bearing the title of dictator was appointed to supersede the
consuls. His term of office was limited to six months, but
during this time his power was unlimited as that of the king.
The dictator was nominated by one of the consuls acting
under an order of the senate which must be obeyed and was
clothed with imperium (sovereign authority) by the comitia
curiata. Sometimes a dictator was appointed merely to hold
an election or to perform some religious ceremonial acts.
As Rome was constantly engaged in war and the consuls
who commanded the armies were frequently absent from the
city, some important duties of administration formerly
entrusted to them were distributed among other magistrates.
Thus the praetors (lit, leaders) were appointed to exercise
jurisdiction in civil causes, the censors, to jurisdiction in
civil causes, the censors, to take the census every five years
and to superintend the manners and morals of the people, etc.,
the edites took care of the public buildings, games and were in
charge of the internal police of the city, etc., and the quaestors
Chapter-.--Il History of Roman Law 17
acted under the directions of the senate as collectors of

revenue and had different duties as public prosecutors in
capital charges.
Predominance of patricians :—In the early period of the

Republic, the Roman constitution, which bore the external
appearance of a democracy. was in reality an aristocratic
government, Although the plebeians were permitted
ostensibly to take part in the deliberations of the assembly of
the centuries, the patricians could always command an
overwhelming majority in the assembly as well as in the
senate, and with the exception of the tribunate they engrossed
all the important offices of the state. All political power was
thus placed substantially in the hands of the aristocracy who
frequently abused it by oppressing the poorer classes.
Fall of Republic :—The free Republic which succeeded the
king endured, according to common reckoning, 479 years,
during which the political constitution underwent frequent
changes. Montesquieu has pointed out the causes which led to
the overthrow of the Republic. When the Roman legions
crossed the Alps, or passed to distant countries beyond seas,
and remained absent for years in the conquered states, the
troops lost by degrees the spirit of citizens, and the generals,
who disposed of armies and kingdoms, became so powerful
that they yielded a very reluctant obedience to the central
authority at Rome. The fall of Carthage, and the brilliant
conquests of Greece, Egypt and the Asiatic kingdoms, brought
about a revolution in the manners and government of the
Romans. The aits and customs, and the enormous riches of
the conquered nations, familiarised the Romans with luxury,
which opened the way to many vices. As the love of country
and the zeal for free dom declined, corruption attained more
pernicious influence; powerful and ambitious men fomented
internal troubles, and popular tumults were followed by an
exhausting series of civil wars, which terminated in the ruin
of public liberty.
7. The Senate under the Republic :—The abolition of

the monarchy left the legal position of the senate unaltered.
The consuls called the senate together, presided over its
debates and enforced its resolutions just as the king had done
in the past. As time went on the power of the consult came to
be greatly limited by the increased strength of the senate. The
senate, which was in theory a mere body of advisers who
might counsel but not compel, got the complete control of the
public finances, and by their power over the pursestrings
obtained a commanding control over all the magistrates. A
permanent body like the senate could exert much more
authority over the annually elected consuls than it had
possessed over the divided consuls and enabled to dictate the
policy of Rome. It is probable that the plebeians were at this
period first admitted into the ranks of the senate but the
inclusion of the plebeians did not alter the character of the
council, which remained at the hands of the old patrician
aristocracy. The most important privileges i.e. the right to
ratify or reject all proceedings of the centuries, the election of
magistrates as well as the passing of laws, were reserved for
its patrician members. By withholding their sanction the
heads of the old burgess houses could make the decisions of
assembly void, and so keep the commons in subjection to the
will of the patricians.
8. The struggle between the patricians and the

plebeians (494-287 B.C.) :—The patricians enjoyed a
monopoly of all rights and privileges which were absolutely
denied to the plebeians who had many grievances against the
patrician government. Their grievances may be grouped under
three heads : economic, political and social. The economic
grievance related to the demands for the abolition of the law
of debt and for public lands; the political grievances related to
the demand for written laws, share in the government and
priestly offices; the social grievances related to the right of
inter-marriage between the two orders, the claim for taking
part in religious rites and ceremonies, and demand for
re cognition of ptebiscita as laws. We shall now consider how
their grievances were gradually redressed after a long struggle
extending over two centuries.
(1) Demand for abolition of the law of debt.—The first
endeavour of the plebs was to get the severe law of debt
abolished as this law, regulating the relation of the debtor and
the creditor, pressed the plebeians hard. The poor plebs during
the period of disorder and war fell in debt to the patrician
money-lenders and payment was exacted with heartless
severity. The law of debt made the defaulter practically the
property of his creditor. The creditor might arrest and load
him with chains and after a certain period of time sell him as
a slave or cut his body into pieces. The poor plebs demanded
that this unfair and unjust law should be repealed but the
patricians gave only the promise of relief. When they were
more than once deceived as to this promise, in 494 B.C. the
whole armed force of the plebs instead of returning to their
homes at the end of the campaign, marched in good order to a
hill called the Sacred Mount where they resolved to build a
new city. This incident is known as the 'first secession of the
plebs." They refused to return to the service of the state. The
patricians were thereby alarmed, because being surrounded by
enemies they could not afford to be without them. So they
opened negotiations and came to a compromise. It was agreed
with most solemn oaths and vows before the gods that the
debts of the poor plebs were to be cancelled and those debtors
held in slavery set free; and two plebeian magistrates (the
number was soon increased to ten), called tribunes were to be
chosen in an assembly of the plebs. Their duty should be to
watch over the plebeians and to protect them against the
injustice, harshness and partiality of the patrician
magistrates. The tribunes were invested with an extra
-
ordinary power known as "the right to aid" and they were
given the right to annual the acts or stop the proceedings of
patrician magistrates, even of a consul in case of their
Roman Law Chapter-11
20
attempt to deal wrongfully with a plebeian by the exercise of
their right of irttercessio (veto). The persons of the tribunes
were made inviolable, Anyone interrupting a tribune in the
discharge of his duties, or doing him any violence, was
declared an outlaw, whom anyone might kill. Their houses
were to remain open night and day so that any plebeian
unjustly dealt with might flee to that place for protection and
refuge. The tribunes were attended and aided by officers called
aediles, who were elected from the plebeian order and invested
with a sacrosanct character like the tribunes. Their duties
were to take care of the streets, markets and the public
archives.
(2) Demand for public land :—The next grievance of the

plebeians was for a share in the public lands. The patricians
claimed for themselves the exclusive right to occupy the
unsold or unleased public lands. The plebs naturally
complained because of their exclusion from these common
lands, since it was their sacrifices and their blood that had
helped to get it. In 487 B.C., a patrician consul named
Spurious Cassius, with a view to relieving the distress of the
poor plebs brought forward the proposale that (1) lands
acquired by the state, instead of being sold or leased, be
allotted to needy Romans and the Latins (2) the amount of
land for such distribution be increased by taking away from
the rich patricians those public lands which they occupied as
tenants at will. As a consequence. Spurious Cassious had to
sufer death on a charge of aiming at Royal power upon the
expiration of his term as consul. The agitation was not ended
by his death. The tribunes demanded the execution of his
measures or atleast some distribution of lands to the poor. At
length their efforts were crowned with partial success. In 467
B.C., by the foundation of the Latin coloney at Autium a
number of poor Romans were provided with lands and in 456
B.C. a law was passed under the tribunicaian pressure which
distributed the land on the Aventine Hill to poor citizens.
(3) Demand for written laws :—One of the greatest defeats
of the Roman system of administration was the absence of
written laws. The plebs suffered greatly from the uncertainty
of customary laws. This uncertainty about the law enabled the
patrician magistrates to deliver unjust and arbitrary
judgements. The plebs were the worst sufferers. They,
therefore, demanded that the law should be codified and
published for general information. The patricians refused to
comply with this demand but after a long struggle extending
over eight years, according to tradition a commission was
sent to the Greek cities of southern Italy and to Athens to
study the Grecian laws and customs. On their return, a
commission of 10 magistrates, who were known as decemvirs,
was appointed in 451 B, C., to frame a code of law. This board
drew up ten tables within a year. After the expiration of their
term of office a new board was appointed to complete the
work. Thus a systematic code consisting of Twelve Tables was
compiled and passed by the cornitia centuriata.
Provisions of the Twelve Tables :- The provisions of
the Twelve Tables may be grouped under two heads, viz, public
law and private law. Under the first head fall the rules
regarding the sovereignty of te popular assembly and
matters of criminal and administrative law. Under the
second head fall provisions regarding paternal power, nexal
debt, intestate succession, etc. Some of the important
provisions of the Twelve Tables are given below :-
(a) On rights of creditor :—Insolvent debtors could be
treated with great severity. They were liable to be
siezed and imprisoned by their creditors and after
being kept loaded in chains for 60 days, might be
sold into foreign slavery.
(b) On marriage :—The old law or custom that prohibited
all marriages between patricians and plebeians was
confirmed.
22 Roman Law Chapter—IL
(c) On crime :—In bodily injuries the barbarous

principle of retaliation was sanctioned—an eye for
an eye, a limb for a limb.
(d) On defamation —Any person who wrote lampoons
or libels on his neighbours was liable to be deprived
of civil rights.
(e) On right of appeal :—An appeal might be made to the
people from the sentence of every magistrate, and no
citizen was to be tried for his life except before the
comitia of the centuries.
(f) On summons :—In case of any dispute, it was the duty
of the plaintiff to take the defendant before the
magistrate. If he attempted evasion or was unwilling
to go, the plaintiff could arrest him after calling
witnesses. If he was sick or very old the plaintiff
would arrange his conveyance.
(g) On fathers right :—The father had absolute right

over his children and he could imprison, sell or kill
them though they held high official rank. If the
father sold his son three times, the son should be free
from patria potes Las.
(h) On succession :—The father could dispose of his
property by testament. In the event of his death
intestate and without suus heres his nearest agnates
succeeded. In default of agnates the proerty went to
the gentiles.
(i) On possession :—Ownership was acquired by
possession for two years in respect of land and one
year in respect of movable property But the
foreigners could not acquire the property of the
Roman citizens by adverse possession.
Significance of Twelve Tables :—The Twelve Tables, the
celebrated code was the foundation of Roman law, which was
the most highly developed legal system in the ancient world.
The twelve Tables though immensely improved and enlarged,

was never wholly superseded by subsequent legislation, but
continued to be, in theory, the ancient source from which all
law flowed until the time of Justinian himself. They were not
new laws; they were a collection of old laws and customs. The
codification of law was a distinct advantage to the plebs. The
patrician magistrates could no longer utilise the uncertainty
of law to pass arbitrary decisions. The Twelve Tables, to some
extent improved the position of the plebs, for the two orders
were placed on a footing of equality in their relations of
private life.
Overthrow of decemvirs (450 B.C.) :—The decemuirs were
appointed not only to codify the law but also to carry on the
Government of the city and were invested with the supreme
power of the state. The first decemvirs used the power with
justice and prudence, but the second board, under the
leadership of Appius Claudius, a member of the old board,
instituted a most infamous and tyrannical rule. Appius
Claudius desiring to gain possession of Virginia, a beautiful
daughter of a plebeian, pronounced her a slave. The father of
the maiden, preferring the death of his daughter to her
dishonour, killed her with his own hand. Then, drawing the
weapon from her breast, he hastened to the Army, which was
resisting an united invasion of the Sabines and Aequians,
and exhibiting the bloody knife, told the story of the outrage.
The soldiers rose as a single man and hurried to the city. They
protested against this conduct by migrating to the Sacred
Mount for the second time. This was known as 'the second
secession of the plebs." The situation was so critical that the
patricians were compelled to yield and the decernvirs were
forced to resign. The consulate and the tribunate were restord.
Eight of the decemvirs were forced to go into exile: Appius
claudius and one other were imprisoned and they ultimately
committed suicide.
(4) Demand for removal of marriage restriction:—The
plebeians next demanded for the removal of marriage
restriction that prevented the fusion of the two orders. They
had no right to marry the patricians. This concession was
secured as a result of the third secession of the plebs. Lex
Conuleia was passed in 445 B.C., which sanctioned inter-
marriage between the two orders. This law established the
social equality between the two orders.
(5) Demand for share in Government :—The plebeians now
demanded that they should be entitled to hold the highest
executive office in the Republic. The patricians were unable to
confront this demand with a straight refusal. They abolished
the consulship and appointed military tribunes enjoying
consular authority. Their number varied from three to six
and they could be chosen equally from the two orders. This
concession to the plebs was subject to one serious 1ination.
The military tribunes were not invested with some of the
duties and powers which were conferred upon newly created
officers called the censors who could be chosen from the
ranks of the patricians alone. They took the census of the
citizens and their property and arranged them in accordance
with their rank and property. They could, for immoralit y or
any improper conduct, degrade a knight from his rank, expel
a member from the senate or deprive any citizen of his vole by
striking his name from the roll of the tribes. They were also
allowed to nominate, the members of the senate. Thus the
patricians kept for themselves a monopoly of some important
political power. The plebs understood that no substantial
improvement of their position could be effected unless they
could hold the consulship. In 376 B. C. the tribunes (Licinius
Stalo and L. Sextious) introduced some legislative measures
which are known as Liciniari Rogation. It provided (1) that
the office of military tribunes should be abolished and the
consulship be revived, (2) that one of the two consuls must be a
plebeian. (3) that no citizen should be allowed to hold more
than 500 jugera of the public lands (2jugera = 1 acres) and the
plebs should enjoy with the patricians the right to occupy the
public lands, (4) that the interest already paid by the debtor
should be deducted from the principal and the remainder of
the principal should be repaid in three annual instalments.
The patricians violently opposed these measures but they
were compelled to yield when the tribunes suspended all
public business by exercising the right of intercessio. After a
bitter struggel for 10 years the Licin fan Rogation became law
in 367 B.C.
(6) Demand for priestly office :—The plebeians now
demanded that they should be entitled to hold priestly offices.
The patricians could not resist this demand for long. The lex
Ogulnia was passed in 300 B.C., under the provision of which
the plebs were authorised to become pontiffs and augurs and
the number of the priestly offices was increased.
(7) Demand for recognition of plebLscita as laws :—At last
the plebeians demanded that the plebiscita (resolutions of the
condll turn plebfs) should be recognised as laws for all the
citizens. This concession was secured as a result of the fourth
secession of the plebs. The plebiscita came to be recognised as
laws after the passing of lex Hortensia in 287 B.C. This act
provided that the resolutions of the concilium plebis
(plebiscita) should be of the same efficacy as those of the
comitia centuriata, and be binding upon the plebeians and
patricians alike. After that time the concilium plebis became
in fact another assembly and the plebiscita were commonly
called leges. Thus the plebeians secured complete legislative
independence.
Character of the struggle :—After a long struggle extending
over two centuries the plebeians succeeded in having all their
grievances redressed and in securing a position of equality
with the patricians. Rome attained internal unity and it
became easy for her to launch upon a career of conquest and
expansion. The constitution became democratic. One of the
significant features of this long struggle was that it was

carried on without violence. Al-though the plebs were denied
the monopoly of rights enjoyed by the patricians, they did not
rise in armed rebellion nor did they refuse to fight for Rome
when she was threatened by external enemies. The patricians
also did not push things to the extreme. The reconciliation of
both the parties made the armies of Rome triumphant
througout Italy.
9. Agencies of the development of Roman Law :-

The agencies whereby the Roman law was developed were
three in number:
(1) Legal fiction or interpretation by the jurisconsults.
(2) Equity by the praetors.
(3) Legislation.
(1) Legal fiction or interpretation :—Legal fiction signifies
any assumption which conceals or affects to conceal the fact
that a rule of law has undergone alteration, its letter
remaining unchanged, its operation being modified. The fact
is that the law has been wholly changed, the fiction is that it
remains always what it was. The English case law and the
Roman responsa prudent um are illustrations of legal fiction.
In each of them there is a legal presumption that the laws are
interpreted but as a matter of fact in the process of
interpretation new laws are created.
With the growth of society and new social needs, the
Romans faced new problems. Their old laws were found to be
wholly inadequate, but it was not easy to create new laws.
People did not like any interference with the existing law of
the land, because they regarded their law as divine and
unchangeable. So they at first resorted to legal fiction to
remove the rigidity and inadequacy of the old laws without
giving any shock to the conservative idea of the people by
open and direct change. In rome, laws were at first interpreted
by the pontiffs; later the jurisconsults, a body of men, well
versed in law, expounded it to meet the exigencies of the time.

They were consulted on legal matters and they were giving
opinions on those matters. Their opinions (responsa) were
known as the responsa prudentum or the answers of the
learned in law. The authors of the responsa said that they
were merely explaining the laws and bringing out its full
meaning, but in reality they extracted out of the Twelve Tables
a good deal more than what was in them. In this way Roman
law was considerable improved by use of legal fiction or
interpretation of laws by the jurisconsults. Thus by
interpreting the law of sale the Romans developed the law of
gift and mortgage and considerable improvement had also
been made on the law of property and obligation.
Modern law:—In modern law also an extensive use of legal
fictions are found. In Hindu law, an adopted son is regarded as
a son born into the family. So also a child in the mothers
womb is regarded as a child born for many purposes, e.g. to
take an estate as a legatee. In English law, the relation of
master and servant is supposed to be the ground of action for
damages when a father brings an action against the seducer of
his daughter. In this action the daughter is alleged to be the
servant of the plaintiff and the cause of action is based upon
the consequential loss of service.
The old law can be interpreted to cover new cases when
there are some similarities between the new case and the old
law. But when the case is totally new, or when there is no
provision in the old law, legal fiction is of no help. At this
stage equity makes its appearance.
(2) Equity :—Equity means a body of rules existing by the
side of the original civil law, founded on distinct principles
and claiming incidentally to supersede the civil law by virtue
of a superior sanctity inherent in those principles. Such a
body of rules was worked into the Roman system by the
praetors (magistrates) to develop the existing law of the land.
the original civil law of Rome contained many arbitrary
28 Roman Law Chapter—Il
distinctions, anomalies and inconsistencies, which not only

resulted in injusstice and oppression, but rendered the
administration of justice difficult. The defects in the Roman
law were removed by the application of equity. It was through
equity that the aliens received protection in Roman law, that
conveyance of property was freed from the formalities and
ceremonies, that the arbitrary distinction between classes of
persons and kinds of property disappeared, and that the
artificial relation based on potestas gave way before the
natural bond of consanguinity. Roman equity begins and ends
with the praetor. The topic now leads us to trance the history
of equity in Rome.
History of Roman equity.—When in the Republican period

a large number of foreigners came to Rome for commerce or
for permanent habitation, the Roman state was faced with a
new problem. These foreigners could not claim the benefit of
the Roman civil law, for it was applicable to the citizens
alone. Yet these foreigners had to be protected by law,
otherwise the Roman commerce and trade would suffer and
even the very safety of the Roman state might be threatened.
Here the legal fiction could not help the Romans because there
was no question of the application of civil law to the
foreigners. To meet the situation the Romans appointed a new
praetor, who was called the praetor peregrintts, whose
function was to take cognisance of all the suits between a
Roman citizen and a foreigner or between the foreigners
themselves. The praetor peregrinus by issuing edicts created
what is known as the Jus gentum for the foreigners.
At first the Romans hated the ju.s gent urn as they hated the
foreigners. But under the influence of the Greek theory of the
law of Nature their angle of vision towards the jus genttum
was changed. According to sir Henry Maine, There was a
confusion between the Roman jLLs gentium and the law of
Nature. The romans regarded the jus gentium, which was
originally meant as a law for the foreigners as a concrete
embodiment of the law of Nature. When this stage was reached

the Roman attitude of hatred towards jus genUum was
changed, and they regarded jus gentiurn as an ideal system of
law to which all law should approximate in order to be
perfect. From this onward the formalism and rigidity of
Roman law were removed by the adoption of the principles of
jus gentium. When the jus gent(um acquired such a
philosophical and ethical significance through the influence
of Greek philosophy, the development of Roman law was
astonishingly rapid and the principles of jus gentium were
allowed to supplement and supersede the civil law of Rome.
The code of Justinian made a permanent fusion of the
principles ofjus civile and jus gentium.
(3) Legislation :—The last agency of the development of law
is legislation or the enactment of the legislature. In Roman
history we find that laws were passed by the popular-
assemblies, the senate and the Emperors. The comitiia curiata
was the only assembly in the Regal period and it continued for
sometime in the Republic along with the comitia centuriata.
During the Republic there were four assemblies; (1)
comitia curiata (2) comitia centuriata (3) comitia tributa
(4) conctlium plebis. During the early days of the Empire, the
place of the popular assembly was gradually taken by the
senate, acting as the mouthpiece of the Emperor. Finally even
this form was dropped. and all enactments flowed directly
from the Emperors.
Legislation is the only agency in modern times which is
extensively used for the purpose of developing laws of any
country.
10. The jurisconsult :—The jurisconsults were a body of
men in Rome, who made it their business to study the law and
to expound it for the benefit of the people. They were consulted
on legal matters, and accordingly they got the opportunity to
develop the Roman law by their interpretations, writings and
responsa. The jurists at Rome fall into three main classes,
30 Roman Law Chapter—I!
viz., (1) the pontiffs and earlier lay jurists whose chief work
was i nterpretatio, () the jurists who came after the period of
nterpretatIo. and before the time of classical jurisprudence,
and (3) the classical jurists.
(1) The interpretation of the pontiffs.—Originally Roman

law was nothing but unwritten customs. The college of
pontiffs were the repository of the law and they were the
lawyers. The custody of the Twelve tables, the exclusive
knowledge of the forms of procedure (legis actiones), and the
right of interpretation and practice of law belonged to the
college of pontiffs This continued for a contury and a half
after the publication of the Twelve Tables In theory, tuey
merely expounded the law as set out in the Twelve Tables, but
in fact they created a considerable body of new rules of laws.
The development of Roman law by means of interpretation
came to an end by the time when the praetorian jurisdiction
was sufficiently established.
(2) The jurists who came after the period of interpretation
and before the time of classical jurisprudence. Appius
Claudius (censor, 312 B.C.) drew up a record of the legis
act tones. Gnaeus Flavius, the son of a freedman, who acted as
secretary to Appius Claudius, had stolen and abstracted his
master's book and published it to the world in 304 B.C. This
publication was known as the jus Flavianum. It was received
with great satisfaction by the people. The effect of this
disclosure of a specially important part of the technical legal
knowledge of the pontiffs may be connected with the
admission of plebeians to the college of pontiffs in 300 B,C.
and with the formal severance of the college from the
practical administration of the law in 289 B.C. Tiberius
Coruncanius (consul, 280 B.C.) was the first plebeian pontfex
rno.ximus (252 B.C.) and is said to have been the first man to
profess publicly to give Information on law. the first writer of
an important law book was Sextas Aelius (consul, 198 B.C.).
The Flavian collections being imperfect he published for the
Chapter—IT History of Roman Law 31
second time a supplement thereto in 204 B.C. which was
named after his name as jus Aeliaruim. His work is also called
tripertita, as it consisted of three parts, viz. (1) the laws of the
Twelve Tables, (2) their interpretations and (3) the forms of
procedure (legis actiones). Hence—, forth the monopoly of the
pontiffs came to an end. There were many lay jurists like M.
Porcius Cato (consul, 195 B.C.), M. Manfilus (consul, 149 B.C),
Cato the younger. M. Junius Brutus and P. Rutilius Rufus
(consul, 105 B.C.) whose writings were of importance. But
systematic legal writing was started from Scaevola (consul, 95
B.C.) who was the first person to write the jus civile in
eighteen books. He wrote the principles of Roman law in a
comprehensive and logical order and arrangement. Scaevola
was followed by Aquilius Gallus (praetor, 66 B.C.) the author
of the Stipulatio Aquiliana, and Servius Sulpicius (consul, 51
B.C.), the author of the first commentary on the praetors
edict.
(3) The classical jurists,—The classical period of Roman

law is generally considered as beginning with the reign of
Hadrian. Among the civilians who flourished between the
reign of Hadrian and the death of Alexander Severus, we find
the distinguished names of Pomponius, Scasvola, Gaius,
Papinian, Ulpian and Paulus. The brilliant series of classical
jurists end with modestinus. These men were the great lights
of jurisprudence for all time. During this golden age of Roman
jurisprudence, many law books were written, viz,
commentaries on the Twelve Tables, on the perpetual edict,
the laws of the People, the Decrees of the senate; elaborate
books on the general body of the law called Digests;
elementary books under the titles of Ins titutiories, Regulae,
Sententtae, and the like; notes or commentaries on the
writing of the earlier lawyers; and a great mass of treaties on
special subjects in every department of law. After Modestinus
the development of law was carried on almost entirely by
Imperial Constitutions.
Roman-4
32 Roman Law Chapter—TI
Importance of jurisconsults.—The jurisconsults

contributed a good deal to the development of Roman law by
their interpretation and suggestions. They supplemented the
laws by numberless new doctrines. Digest illustrates on every
page how they cast the law into general statements or rules of
remarkable precision and clearness. The eminent
jurisconsults, as members of the Emperor's Privy Council,
contributed materially to the shaping of Imperial legislation.
The great bulk of Roman law and all that is most valuable in
it, is due to the jurisconsults.
11. The Praetor :—When the consulship was open to the

plebeians by the Liciniart laws of 367 B.C., the administration
of justice was separated from the hands of the consuls and
transferred to a patrician magistrate who was called praetor.
At first one praetor was appointed in 366 B.C.; he was known
as praetor urbanus. His special function was to decide all
disputes arising between the citizens in the city and hence he
was designated as praetor urbanus. He was appointed
annually under the same auspices and had the same
imperiurn as the consuls. He was a jurisconsult himself, or a
person entirely in the hands of advisers who were
jurisconsults. He was appointed not to reform the law but as a
magistrate for Rome. He administered the law in particular
cases. The law he administered was the jus dude of Rome as
found in the Twelve Tables which was applicable only to the
Roman citizens.
With the influx of foreigners and growth of foreign trade
during the Republican period, it was unmanageable for one
praetor to deal with all cases. So about the year 242 B.C., a
second praetor was appointed to decide all disputes arising
between citizens and foreigners or between foreigners
themselves. He was known as praetor peregrinus or foreign
praetor, Subsequently other praetors were appointed for
various purposes, viz. (1) the censors who were in charge of
census, valuation roll, and preparation of the annual budget;
Chapter—IL History of Roman Law 33
(2) the curule aed1es, who looked after public health,

sanitation, management of streets and public buildings,
ordering of markets, etc.; (3) the quaestors with their duties of
collecting revenues and different duties as public prosecutors
in capital charges; (4) praetorJideicommissarus whose duty
was to enforce trust.
The praetor peregriruis was exercising the same indefinite
powers as urban praetor, But he was less bound by tradition or
strict law. The jus civile of Rome being in applicable to the
foreigners, the question arose by what law the disputes
between foreigners were to be decided. Sir Henry Maine
observed that the law, the praetor peregrinus administered,
was that which he found by observation to be common to all
the people who lived around or who came to Rome and also
common to the jus civile of Rome. In applying the rules ofjus
c(vile he avoided the native formalites and ceremonials. He
created laws for the foreigners what is known as the jus
gentium.
Praetors. Edict.—The praetor had the Jus edicendi i.e. the
right to issue edict if he liked. On assuming office he used to
issue edicts. An edict was a proclamation or statement of rules
and principles by which the praetor would be guided in the
administration of justice during the tenure of his office. It was
written on wood and hung up in the court of the praetor at the
beginning of his year of office. Edicts were of the following
kinds
(1) Edictum perpetuurn :—It was the edict which each
praetor issued on assumption of his office every year. If was
probably called perpetuurrt' because it was intended to be
binding upon him during the tenure of his office. Any flagrant
departure from it was regarded as unconstitutional,
(2) Edictum repentinum :—It was the edict issued by the
praetor during the year of office to meet some sudden and
unexpected emergency.
(3) Eclictum tralaticium : —The praetor was not bound to

issue wholly new edicts of his own. He used to follow the edicts
of his predecessors which had been found beneficial and the
portion of their edict that he transferred to his own was called
ethctum tralatictum.
(4) Edicturn nova :—The new praetor might add a clause or
two of his own; and the part newly added by him was called
edictum nova.
(5) Edictum provinciale :—In the provinces the functions
of the praetors were exercised by the local governors, and
their proclamations or edicts had the same force of law as
those of the praetor at Rome.
(6) Edicts of the curule aediles :—Thejus edicendi was not
the exclusive right of the praetors. It was possessed by every
superior magistrate, but the only edicts of importance, besides
those mentioned, were those of the curule aeciiles, form whose
proclamations certain legal rules evolved, e.g. implied
warranty in the law of sale (emptio-venditio).
The praetor administered the law, he never claimed to
make laws. Yet his power of interpretation and amendment
had a qualified and limited legislative effect. Where on the
facts before the praetor, there was no remedy provided in the
civil law, but equity demanded that the plaintiff should not be
denied relief, he devised other method to ensure justice. The
earlier method employed by him was the use of legal fiction.
Later he administered justice by applying equitable principles
and remedies. In this way he granted new remedies and
defences, just as in the formative period of the English
common law the Chancery gave new writs to intending
suitors. The creation of new remedies meant the creation of
new rights and new laws. The new body of laws that arose
through the edicts of successive praetors came to be known as
the jus honorarium orjus praetorium. It was a sort of equity
which gave relief when the jus civile was rigid and
inadequate. This law exercised a powerful influence on the
development of Roman law than the influence of the
j urisconsults as it was direct and authoritative.
Jurisdiction of praetor :—The praetor stands midway

between the jurisconsults and the legislature. The earliest
conception of law was that it was fixed and immutable. As the
society progressed, changes were essential. But it was not easy
to change the law because the people regarded their law as
divine and unchangeable. Any open change at the outset
would naturally shock to the conservative idea of the people.
So the jurisconsults introduced slight modifications under
the garb of interpretation. When this practice was going on
for some time, people were prepared for change but not to the
extent of direct and open innovation. At this juncture the
praetor intervened and started to change the law directly and
openly by the introduction of equity which gained popular
favour on account of its superior sanctity and excellence. The
praetor was the keeper of conscience of the Roman people and
he was the person to determine in what cases the strict law
was to give way to natural justice, for example, the civil law
traced succession exclusively through males, taking no
account of emancipated children or of persons related to the
deceased through females. The civil lawa also prescribed a
cumbrous form of will-making. The praetor gave possession
of the estate (bortorum possess to) in proper cases to persons
who could not take at civil law, but he could not make them
heirs. When the public opinion was ripe for the change the
praetor protected them in their possession against the civil
law heirs. He was the exponent of Roman equity. Hence it is
said that he holds a middle position between the jurisconsults
and the legislature, just as in English law, equity follows the
law but precedes legislation.
End of praetor's edict :—The development of Roman law by

praetorian edict came to an end towards the end of the last
century of the Republic. the lex Cornelia passed in 67 B.C.,
made it unlawful to depart from the edict once issued. In the
early part of the Empire some rules were framed which

regulated the actions of ten praetors. The Eperor could
disallow any reform of which he disapproved. The result was,
as Shorn pointed out, that the edict became stereotyped and
barren. The Emperor Hadrian commissioned the famous
jurist Salvius Julianus (A.D. 125-128) to go through and
codify the edicts or praetor urbanus, praetor perigrtrius, and
certain parts of the edicts of the curule aedtles, together with
the edicts of the provincial Governors. The resulting code,
known as the edictum Hadrianum or edictum Salvianwn was
ratified by a senatus cortsultum and thenceforth it became an
edictum perpetuum in a new sense. These edicts were intended
to be binding and unalterable for ever. The work of Julianus
may be taken to mark the end of the praetorian legal reform.
Henceforth the development of Roman law was effected by the
writings of later jurists and the Imperial Constitutions.
(Results of praetor's work.—The chief results of the praetors
work may be summed up under three heads:
(1) It was the praetor chiefly that admitted the
foreigners within the pale of Roman law.
(2) The praetor changed the law by which the formalism
of Roman law was superseded by well conceived rules
giving effect to the real intention of the parties.
(3) He took the first lead in transforming the law of
intestate succession, so that for the purpose of
inheritance, the family came to be based on the
natural tie of blood instead of the artificial relation
of potestas.
12. Comparison between English and Praetorian
equity :-
(1) Both attempted to remedy the defects in the existing
legal system. The object of the praetorian edicts (Roman
equity) was to cure the defects of the jus civile (civil law) of
Rome and also to supplement the civil law where it was
inadequate. Whereas the object of the rules of Chancery

(English equity) was to improve and supplement the common
law.
(2) Both were unsystematic in form, and were the result of
gradual innovations.
(3) Both were based on a false assumption. The Roman
jurisconsults, in order to account for the improvement of
their jurisprudence by the praetor, borrowed the Greek
doctrine of the law of Nature and claimed that thejus gentium
was a concrete embodiment of the law of Nature. Similarly, in
England the claim of the equity to override the common law
was based on the assumption that a general right to
superintend the administration of justice was vested in the
king in his paternal authority.
(4) Just as in Rome, Justinian's legislation incorporated
the praetorian law into the civil law, so also in England the
Judicature Act of 1873 made a fusion of equity and common
law inasmuch as both the remedies could be claimed from the
same court.
Contrast between Praetorian and English equity :-
(1) Roman civil law and equity were both administered by
the same tribunal whereas in England the common law and
equity were administered by separate tribunals till the
Judicature Act of 1873.
(2) Praetorian equity after a time became a statute law,
whereas English equity was, for a long time, almost entirely
judgemade law.
(3) English equity followed the law, whereas praetorian
equity ran counter to the law.
13. The Legislative Assemblies under the Republic
:- There were four legislatures during the Republic:
(1) comitia curiata,
(2) cotnitia ceaturtata,
(3) comtia (ributa, and

(4) concittum plebis.
(1) comitta curiata.—See p11
(2) Comita centuriata.—It was an assembly composed of all
the citizens, both patricians and plebeians. Servius Tullius
divided the people into five classes according to their fortune.
Each class was sub-divided into centuries. In all there were
193 centuries. The division was made so that men should vote
according to their wealth and order of the army in the field.
The military organisation devised by Servius was intended to
replace the old com(tia curiata where birth and not wealth
counted. This assembly enjoyed the same powers as the
comtia curiata. The patricians as well as the plebeians could
sit and vote in the cornitia centuriata. The comita curiata
and the comftia centuriata existed side by side for some time
but afterwards the latter usurped the functions of the former.
The cornitia centuriata had no power of initiating legislation,
for no measure could be proposed there except by a consul, and
he could bring forward nothing without the previous sanction
of the senate. All measures which required a religious
sanction had to be confirmed by the comitta curiata. The most
important piece of legislation passed by the comitia
centuriata was the law of the Twelve Tables, the celebrated
code which was the foundation of Roman Law and which,
though immensely improved and enlarged, was never wholly
superseded by subsequent legislation but continued to be the
ancient source from which all law flowed until the time of
Justinian. This assembly had many functions. It passed laws
and elected the magistrates but the imperiurn on them was
subsequently conferred by the comitia curiata. It decided the
question of peace and war and acted as the supreme court of
appeal in question involving capital sentences. Much
legislation in the earlier part of the Republic was due to the
comitia centuriata, But it was and unsatisfactory body from
the point of view of the plebeians since the voting strengty was
with the wealthier classes, in which they were little

represented.
(3) Comttta trtbuta :—The comitia tributa was an assembly
of the people based on a division of the Roman people
according to local division or district and hence the title
tnbuta (tribus means districts and not tribes). This assembly
included the patricians and the plebeians. This grouping was
devised for fiscal and administrative purposes and also
assigned by tradition to Servius Tullius, Nothing is definitely
known about the legislative methods of the comitia tributa.
(4) Conciltum plebs.—The conc1turn plebs was an
assembly purely of the plebeians where their grievances were
discussed. It was convoked by a tribune. It could pass
resolutions, in that assembly determining the policy of the
plebeians, which were at first binding on the plebeians alone.
The resolutions passed at the concWuni plebis were known as
the plehscita. After the passing of lex Hortensia, 287 B.C. the
plebisctta were binding both upon patricians and plebeians.
After that time the concthum plebts became in fact another
assembly, and the plebisctta were commonly called leges.
According to Jolowicz, in the later Republic there were
three sovereign legislatures viz, comitia cent uriata, corn ftia
tributa and conctlium plebis. All were equally capable of
passing binding statutes. Which of these assemblies was
summoned in any particular instance depended on the
magistrates who wished to put a proposal before the people.
The normal president of the comit(a centuriata was the
consuls, both for legislation and for election. The cornitia
tributa could only be summoned by partician magistrates,
usually the consuls or praetors and the conciliurn plebis could
only meet under the presidency of a magistrate of the plebs.
14. Lex :—Lex is a term wide enough to include not only
the whole of the statute law, but every species of legal rules. In
this sense it includes the laws of (1) the early kings, (2) the
comtia curiata, (3) the comitia centuriata and (4) the cornitia
tributa. In the Regal period measures were proposed by the
king in the comitia curiata which passed laws. Similarly in
the Republican period laws were passed by the comitia
centuriata under the presidency of a consul. the Twelve
Tables, which was the foundation of Roman law, was passed
in this assembly. Likewise laws were passed in the comitia
tnbuta which was summoned by consuls or praetors.
15. Jus :—Jus means non-staute law and includes the
body of rules received as law by the Romans or any large
section of such body, such as jus civile, jus gentium, jus
naturale, jus privatum, jus publicum, jus praetorianum, etc.
16. Fas :—Fas means religious law or the rules of
morality. Fas is the sum of the duties owed by man to the gods,
whereas jus is the sum of the duties owed by man to man.
All primitive people mixed up law and religion. In early
Rome pontiffs were the lawyers who were the custodians and
interpretors of all laws. At that time both morality and law
(fas and jus) were mixed up and found in custom which was
based on religion. What was right and lawful was fax: what
was unlawful was nefas. At this stage there was no distinction
between fas and jus. But the Romans perceived earlier than
most peoples that the field of law was not coextensive with
that of moral rules. So they distinguished very early between
fas and jus. this or law was enforced by the machinery of the
state whereas fas was left purely to religious sanction and
public opinion. The moral rules (fas) were not enforced by the
machinery of the state. In case of violation of those rules
there was no penal consequences. These religious rules were
collected into a body by Sextus Papirius, a Roman lawyer who
is said to have lived in the time of the last king, Tarquinius
Superhus. These laws of religion were called after his name as
jus cwtle Pap iriarium.
In a developed civilisation the notion of law and morality

are clearly distinguished. Law consists of those rules of
conduct which the state will enforce by its judicial machinery
and morality consists of those rules of conduct which are
habitually observed by well conducted people but are not
necessarily enforced by anything except public opinion. This
does not mean that the two sets of rules are opposed or even
distinct. One of the chief functions of the law is the
maintenance of morality, and from this point of view law
may be described as that part of morality which in any
community it is thought desirable to make compulsory. The
relation between law and morality is so close that in any self-
governing community, when views change on any point of
morality, the trend of legislation changes too.
17. Jus civile :—Jus civile (civil law) according to the

Institutes, is that protion of a legal system which is peculiar
to a given community. It was the law peculiar to Rome and was
regarded as the exclusive privilege of the Roman citizens and
no one but a citizen could claim its protections. It contained
the body of rules by which the people of Rome were guided in
respect of their rights and obligations. It was full of
formalities and ceremonials and administered by praetor
urbanus in the Republican period as found in the Twelve
Tables. Originally jus civil was the unwritten law which was
subsequently passed by the comitia centuriata in the
Republican period. These laws were extremely primitive,
narrow and inelastic.
18. Jus gentium :- With the influx of foreigners and

growth of foreign trade during the Republican period, there
was a necessity for the creation of a new body of rules for
determination of disputes between the Romans and the
foreigners or between the foreigners inter se and for taking
judicial recognition of the informal transactions which were
taking place among the Romans and the foreigners. This new
body of reules was known as the ju.s gentium. These rules were
partly derived from the common customs of the Romans and
the neighbouring Italian tribes and partly from thejus civile
leaving aside its formalities and ceremonials. These laws
were administered by the praetor peregrinus in dealing with
disputes arising between the Romans on the one hand and the
foreigners on the other or between the foreigners inter Se.
These laws were in force side by side with the jus civile
throughout the Republic and down to the Imperial period
when it was merged into one law for the entire population of
Rome.
Roman attitude to jus gentium.—Sir Henry Maine
observed that the jus gentium was not at first in the good
grance of the Romans. They had no liking for it but accepted it
as a political necessity. But later under the influence of the
Greek conception of law of Nature, their angle of vision
towards jus gentium was changed. The jus pentium, then,
came to be regarded as the concrete embodiment of the jus
naturale, an ideal system, to which all law should
approximate in order to be perfect.
19. Jus naturale :—Jus naturale, or the law of Nature,
was the law peculiar to the Stoic School of Greek philosophy
and was introduced into Rome after the subjugation of Greece.
Soon after its introduction the Roman jurists took up the idea
that the jus gentiurn was nothing but the jus naturale, and the
result was an identification and blending of the two systems.
The contact between them was brought about through equity,
and the praetor while basing his principles on the jus
pentium, always kept before him the law of Nature as an ideal
system to which law should approach as far as possible.
Greek conception of law of Nature.—The jus naturale or
the law of Nature was associated with the Greek philosophy.
The Greek philosophers meant by Nature the physical world.
The earlier Greek philosophers believed that this visible
universe with all its manifold objects was the manifestation
of some single principle which they variously asserted to be
movement, fire, moisture or generation. The later Greek

philosophers especially the Stoics (school of Philosophy)
further developed this conception of Nature by extending it to
the realm of human thoughts. Nature then came to mean not
only the visible thing but also the invisible world of thought,
observations and aspirations of mankind. And underlying
these diverse objects there was one principle of which the
different objects were but the visible manifestations. This
underlying principles was reason. the law of Nature
ultimately came to mean the law of reason or rational
principle. But the notion that the multifarious objects of
Nature are but the different manifestations of one principles,
gradually led the Stoics to believe that underlying all the
complex rules of human conduct, conflict of interests and
mad longings of our tempestuous life, there were some simpler
principles of life and that to live according to those principles
would be the summurrt bonum of life. To live according to
Nature came to be considered as the end for which man was
created. To live according to Nature meant to live in an
unostentatious way, to live above disorderly habits and gross
indulgence to senses. Life according to Nature was the
teaching of the Stoics.
Roman application of Greek theory.—This peculiar view of

Nature made a strong appeal to the Romans and their attitude
towards jus gentium was changed when they came in touch
with Hellenic culture after the conquest of Greece. After some
time when Nature had become a household word in the
mouths of the Romans, the belief gradually prevailed among
the Roman lawyers that their old jusgentium was in fact the
lost code of Nature and that the praetor in framing an edictal
jurisprudence on the principles of the jus gentium was
gradually restoring a type from which law had only departed
to deteriorate.
According to Sir Henry maine this confusion was
primarily due to the following causes :—(l) the leyelling
44 Roman Law Chapter—If
tendency and (2) universality of the jus gentium. The jus

gentium hardly made any distinction between classes of
things (e.g. res mancipl and rec mancipi), or classes of people
(e.g. citizens and aliens) or kinds of relations (e.g. agnatic and
cognatic). It treated all alike. In the law of Nature also there
was no such arbitrary distinctions. Roman law was a local or
national law, but the jas qentium, like the jus naturale, was
not confined to any particular locality or to, any particular.
race. It had an air of universality. When the jus gentium
acquired such a philosophical and ethical significance
through the influence of Greek philosophy, the ROman
attitude of hatred towards jus gentium was changed, and they
regarded jus gentium as an ideal system of law to which all
law should approximate in order to be perfect. From this
onward the formalism and rigidity of Roman civil law were
removed by the adoption of the principles of jus gentium.
Thus the law of Nature, on account of its confusion with jus
gent(um, brought about an astonishing development in
Roman law.
20. The Empire (31 B.C. to. 565 A.D.) :- Octavious,
the grand nephew of Julius Caesar, established the Empire in
31 B.C. The government was a Monarchy in fact but a Republic
in form. He did not take the title of king. He knew how hateful
to the people that name had been since the expulsion of the
Tarquins. He did not take the title of dictator, a name that
since the time of Sulla had been almost as intolerable to the
people as that of king. He adopted the title of Imperator
(Emperor), a title which carried with it the absolute authority
of the Commander of the legions. He also received from the
senate the honorary surname of Augeustus, a title that had
been sacred to the gods.
He was careful not to wound the sensibilities of the lovers
of the old Republic by assuming any title that in any way
suggested regal authority and prerogative. He was careful not
to arouse their opposition by abolishing any of the
Republican offices or assemblies. He allowed all the old

magistracies to exist as before, but he himself absorbed and
exercised the most important part of their powers and
functions. All the Republican magistrates were elected as
before, but they were simply the nominees of the Emperor.
Likewise all the popular assemblies remained and were
convened as usual to hold elections and to vote on measures
laid before them. But Octavius, having been invested with the
consular and tribunician power, had the right to summon
them, to place persons by nomination for the various offices,
and to initiate legislation.
The senate still existed but it was shorn of all real

independence, since Augustus had been armed with the
censorial power for the purpose of revising its list. He reduced
the number of senators from one thousand to six hundred and
struck off from the rolls the names of unworthy members and
obstinate republicans. All the powers of the state were
concentrated in his person. he was consul, tribune, praetor,
censor, pontifex, imperator, and with the title of Augustus his
commands were obeyed throughout the wide exient of the
Roman dominions, which then comprehended the most
beautiful countries of Europe and Asia, with Egypt and the
northern part of Africa.
Augustus gathered round his court the wits and poets, and
learned men who made his reign illustrious, he used his
powers with great moderation and preferred to govern the
Roman state according to the ancient forms of the Republic.
But legislation by the popular assemblies though not wholly
discontinued, fell gradually into disuse, and the ordinances of
the senate were the usual form in which laws were
promulgated. After the experience of two centuries under the
Empire it was, declared that the decrees of the senate had the
force of law. The power of electing magistrates was
transferred by Tiberius from the comitia to the senate. Under
Septimus Severus and Caracalla the legislative action of the
46 Roman Law Chapter—IT
senate entirely disappeared. By gradual usurpation the power

of the Emperor became absolute and the forms of ancient
liberty disappeared. Under Hadrian the organisation of the
Empire was openly despotic and about the beginning of the
third century his successors frequently issued rescr(pts, in
which they asserted that they were not subject to the laws.
On the death of the first Theodosius, A.D. 395, the Roman
Empire was divided between his two sons,—the provinces of
the East being allotted to Arcadius, those of the West to
Honorius; and the two parts were never united, except for a
short time under Justinian. Notwithstanding this division,
however, the two parts were still considered as forming one
Empire. The laws were promulgated in the name of the two
emperors.
After having been repeatedly invaded by the barbarians,
the Western Empire was at last destroyed by Odoacer, King of
the Hemline, in the year 476 A.D. This event marks the fall of
the Roman Empire of the West. Odoacer, in his turn, was
dethroned by Theodoric, the founder of the kingdom of the
Ostrogoths in Italy. The line of Eastern Emperors lasted over
one thousand years until the capture of Constantinople by the
Turks, in 1453 A.D., when the Ottoman Turks, whose power
had been growing for a long time, took Constantinople and
made it the capital of the Turkish Empire and the political
centre of the Muslim World.
21. Senatusconsulta :—The, senatusconsulta were the
decrees or the opinions of the senate relating to law, justice
and the affairs of the state. The powers of the senate were
different in different times.
In the Regal period it was no advisory council of the king
and had the authority to grant or refuse its sanction to laws
voted by the people. The members of the senate were
nominated by the king from the patriians. In the Republican
period they were nominated by the consuls both from the
patricians and plebeians. The senate continued to act as an
advisory council to the magistrates with increasing control of

them. It had no legislative power but in fact issued
instructions to the magistrates in the form of advice and these
instructions were taken as administrative orders for
enforcement as laws. Though it did not legislate, it had many
means of influencing legislation. It was usual to consult that
body on measures of legislation. It could declare a law void for
informality or for disregard of the auspices. It could dispense
or suspend a law by directing the magistrates not to apply it in
a given case or for a certain time. At first it required the
confirmation of the com(t,a but this rule was subsequently
disregarded from 150 B.C. on wards.
Under the Empire, when the comftia disappeared, the
senate had the authority to make decrees or resolutions which
had the force of law. By the time of Augustus the auctorttas
(authority) of the senate was essential for every law. It was the
policy of Augustus to encourage the senate. The real power was
with him. He presided over the senate and thus determined
what questions should be considered. There was an annual
revision of the list of senators and the Emperor could stike off
members who were not liked by him. Under Domitian (A.D.
81-96) the powers of the censor were transferred to the
Emperor and he always nominated the senators. In this way
the Emperor controlled the membership of the senate and
could force it to do his will. The senate, encourated by the
Emperor, began to give instructions to the magistrates as
before. They did not dare to disobey the directions, for behind
the senate was the Emperor, The resolutions of the senate
acquired full legislative force and had the force of law by the
time of Hadrian (A.D. 117-138).
The legislative power of the senate gradually declined

during the time of later Emperors by their direct legislative
enactments. The Emperors introduced all the measures by
oratfo Le. a proposal made by him for the consideration of the
senate. The request gradually tranformed into a direction to
Roman-5
vote on it. The vote became a mere form. The senate was
ultimately regarded as having nothing to do with the matter
than to record the decision of the Emperors. It was a passive
instrument in the hands of the Emperors to give effect to their
wishes.
22. Imperial Constitutions :—The Imperial
constitutions were the source of written law-both public and
private. The term constitution means all the acts of the
Emperors i.e. the laws, decrees, rescripts, etc., passed by them.
The most general word for such laws is constitutions. The
Emperors made laws by issuing proclamations. Each
constitution began with the name of the Emperor who issued
it and that of the official or other persons to whom it was
addressed. It was under Hadrian that the Imperial
constitutions though known in the time of previous Emperors
first became the ordinary method of legislation. The
Sovereign power in lawmaking was exercised by the Emperors
in the following ways :-
(1) OraUo.— An edictum was an ordinance issued by the
Emperor as the highest magistrate.
(2) Edictum.—An edictum was an ordinance issued by
the Emperor as the highest magistrate.
(3) Mandatum.— A. mandatum was the instruction
given to some particular individual, such as a
provincial Governor with regard to some
administrative difficulty.
(4) Decretum.— A decretum was the decision of the
Emperor in law suits brough before him as supreme
magistrate either in the first instance or by way of
appeal. It was binding upon all judges and
magistrates.
(5) Rescript.— A rescript was the answer of the Emperor
on point of law to those who consulted him either as
public functionaries or as private persons.
(6) Epistola.—An epistola was an opinion of the
Emperor given to a private individual or a
Corporation.
As the rescripts and decrees were confined to particular
cases, they had not the force of general laws but were made use
of as precedents for the determination of similar questions.
All the constitutions inserted in the Theodosian code and in
the code of Justinian became general laws for the whole
Empire.
23. Responsa prudentium (opinions of the learned

in law):—Under Republic the jurists were in the habit of
giving opinions (responsa) to the pupils, litigants and the
judges. The judge was a private citizen agreed upon by the
parties without any special legal knowledge. At first the
responsa would not bind any body; it was voluntary for the
judge to recevie or for the jurists to give advice on law. The
judge was absolutely free to decide in the opposite sense if he
thought right. But Augustus made an important change. He
gave certain distinguished jurists a sort of patent or licence
called the jus respondendj. The effect of this patent or licence
was that if after being consulted a jurist gave a written and
sealed opinion, such opinion would bind the judge unless
another privileged jurist gave an opinion in the opposite
sense.
Schools of law.—As soon as Augustus licensed certain

junsconsults to give opinions on law, two rival schools of law
appeared during his time the Proculians and the Sabinians.
The Proculian school was founded by Labeo and the Sabinian
school by Captio. Labeo was an ardent Republican and the
chief of the Proculians. Capito was an adherent of the court
party and the chief of the Sabinians. The two schools differed
in opinion upon various questions of law but little is known
regarding the character of their differences. Pomponius said,
Labeo (Proculians) introduced innovations, while Capito
(Sabinians) firmly adhered to ancient precedents. According
to Buckland the Proculians sought to make the law more

logical, while the Sabinians rested on authority. Karlowa said
that the Proculians clung to the ancient forms of the jus
cWlle, while the Sabinians preferred the modifications which
the jus genhum and the jus naturale suggested. The Proculians
probably represented the conservative school and the
Sabinians were in favour of interpreting law according to the
spirit. Little is heard of these school, as existing institutions,
after the time of Hadrian.
The system introduced by Augustus had one drawback.
Jurisconsults might give different opinions and the rival
schools were giving conflicting opinions on point of law. In
such circumstances how the judge would determine the
correctness of the opinions. Hadrian introduced a partial
remedy that if the jurists were unanimous, their opinions had
the force of statute and the judge was bound to follow it but if
they were not unanimous, the judge was at liberty to exercise
his own judgement.
Law of Citations.—At a later period (426 A. D.) Theodosius
II and Valentinian III devised a more effective remedy by
enacting a law, called The law of Citations" which introduced
the system of a majority of votes. Under this law pre-eminent
authority was given to the writings of Gains, Ulpian, Paulus,
Papinian and Modestinus. If they were unanimous on a
particular point of law, the judge was bound to follow their
opinions. If they differed unequally, the judge was to follow
the opinion of the majority. If they were equally divided.
Papinian had the casting vote. If he was silent the judge might
form his own judgement.
responsa.— During the later half of the Republic
Decay of
the responsa assumed a form which was fatal to their future
expansion. They became systematised and reduced into
compendia. In the meantime the edicts of the praetors became
the principal engine of the law reform Improvement was also
effected by direct legislation. The final blow to the responsa
was given by Emperor Augustus who limited the right of
giving binding legal opinions to a few leading jurisconsults
who obtained Imperial sanction.
24. The responsa prudentium and the English
case-law :—The responsa prudenttum or the answers of the
learned in law bears a close resemblance to the English case-
law or judicial decisions. The responsa were collections of
opinions on the interpretation of the Twelve Tables. Here the
assumption, as in case-law, was that the text of the old code
remained unchanged. The authors of the responsa professed
that they were merely explaining the law and bringing out its
real meaning. Yet in numerous cases they under the garb of
interpretation extracted out of the Twelve Tables a good deal
of law that were never in them. Similarly an English judge
never admits that he is legislating; he professes that he is
merely applying known rules to the different sets of
circumstances. But whenever he determines a case to which
no existing custom, statute or precedent applies he creates a
new precedent which is followed by other judges in like
circumstances and so form a new law.
Books of responsa, bearing the name of the leading
jurisconsults, obtained an authority equal to that of the
English reported cases, and in fact the responsa constantly
modified, extended, or overruled the provisions of the codes.
The Roman law was developed by the responsa of the
jurisconsults. Similarly the English law was highly
developed by the case-law or the decisions of the judges.
Both responsa prudentium and English case-law clearly
illustrate the fact that the development of law was made by
use of legal fiction. But the source of authority by which the
law was expounded was different in the two countries. The
difference is that the responsa proceeded from the Bar,
whereas the English case-law emanated from the Bench. the
result was that the former was higher in principles than the
latter owing to the competition among the expounders.
,1-
25. Roman jurisprudence :—According to Professor

Girard, Roman jurisprudence passed through three stages,
viz., (1) The stage when the law was kept secret; (2) the stage of
pupularisation, during which the knowledge of law was
spread abroad in a practical manner, without care for
theoretical order of exposition and (3) the stage of
systematisation.
(1) Secrecy of law.—The first stage of Roman jurisprudence

began from the institution of the college of pantiffs during the
Regal period. They were the repositary of the law. In addition
to their sacreed duties as priests, they acted as skilled legal
advisers at first in the court of the kings, then of the consuls
after the abolition of the monarchy and at a later date to the
praetors, when the judicial function of the consuls was
transferred to them. The custody of the Twelve Tables, the
exclusive knowledge of the forms of procedure (legis actones)
and the right of interpreting the law belonged to the college of
pontiffs. They gave opinions on point of law to the judges as
well as to those private persons who were parties to an action
before the court and these opinions (responsa) were in point of
fact binding on the judges. In giving their opinions on legal
questions, the pontiffs indirectly developed the law by means
of interpretation of the written law.
(2) Stage of popularisation.—The second stage was the

stage of popularisation of law when the knowledge of law was
imparted to any and every body without any care for
systematic exposition. This stage began with the publication
ofju.s Flavtarium. Gnaeus Flavius was a Secretary of Appius
Claudius, a pontiff. He had stolen and written down the forms
of actions (leg is actines), abstracted his masters book and
published it under the name ofjus Flauiarium for the general
information of the people. It was received with great
satisfaction by the people. Thus the secret of law was out.
Tiberius Coruncanius (consul 280 B.C.) was the first plebeian
poritfex maximus (252 B.C.) and is said to have been the first
man to profess publicly to give information on law. The first

writer of an important law book was Sextus Aelius (consul
198 B.C), The Flavian collections being imperfect he
published for the second time a supplement thereto in 204 B.C.
which was named after his name as jus AeUanwm His work is
also called tripertita as it consisted of three parts : the laws of
the Twelve Tables, their interpretations and the forms of
procedure (legLs actiones). There were many other jurists who
played important role in the spread of legal knowledge.
(3) Stage of systematisation.—The third stage of Roman

jurisprudence was the stage of systematisation. This period
began with Scaevola, a consul in 95 B.C., who exposed the
results of interpretations into a comprehensive and
methodical system in eighteen books. The principles of
Roman law as exposed by him were frequently cited and
commented during the Empire. He was followed by Aquiliud
Gallus (praetor, 66 B.C.), the author of Stipulatio Aquiliana
and Servius Sulpicius (consul 51 B.C.), the author of the first
commentary on the praetor's edict. On the establishment of
the Empire in 31 B.C., the Emperor Augustus conferred on
some of these jurists the privilegc of delivering authoritative
responsa binding on the judges. Henceforth the pontiffs
ceased to play any part in the development of Roman law and
the jurists took the lead in the matter. The opinions of the
privileged jurists (responsa pruderitium) became a source of
law. In the first century of the Empire, the jurists were divided
into two rival schools of law—the Sabinians and the
Proculians, the former being the follower of Capito and the
latter of Labeo, the two great jurists during the reign of
Augustus. Labeo was replaced by Julianus who flourished
early in the second century of the Imperial period. He was a
Sabinian and his contributions to the juristic literature
gained the day for the Sabinians. The result was that
henceforth there was only one school of jurisprudence. The
second century of the Empire closed with Papinian, the prince
of Roman jurists whom Sohm characterised as the brightest

luminary of Roman jurisprudence. From the third century
onward, the period of decline sets in. Papinian was followed
by other jurists of whom Ulpian, Paulus and Modestinus were
famous, These classical jurists reduced the confusing mass of
praetorian edicts into a systematic whole. After Modestinus
the development of Roman law was carried on almost entirely
by Imperial constitutions. Emperor Justinian codified the
Roman law by compiling the writings of eminent jurists and
the Imperial constitutions. His compilation is known as the
corpus juris civilis in which form the Roman law has been
given to the modern world.
26. Earlier codification :—As the constitutions of the
Emperors became numerous, various attempts had been made
to simplify the statute law, of which the most important were
the following :-
(1) The Codex Gregoriaruis.—It was a private and unofficial
work which was published about 300 A.D. and consisted of a
collection of Imperial enactments from the time of Hadrian to
Diocletian. It was a comprehensive work and was divided into
books and titles.
(2) The Codex Herrnogenianus.—It was another private
collections of Imperial constitutions dating from the year 294
A.D. to 324 A.D. and was probably a supplement to the Codex
Gregoriatuts.
(3) The Codex Theodosianus.—It contained the
constitutions from Constantined onwards for a period of 126
years, during which 16 Emperors succeeded to the throne.
This collection was made under the authority of Theodosius
II, who ordered certain lawyers to collect and arrange the
constitutions from Constantine I down to his time. The work
was divided into 16 books and each book into titles. The
constitutions were arranged in chronological order in each
title. It was intended to cover the whole field of law, private
and public, civil and criminal, fiscal and municipal, military
and ecclesiastical. The Theodosian code was promulgated in
438 A. D. by Theodosius II as law in the Eastern Empire and in
the same year it was adopted in the Western Empire by
Valentinian III. This code had much more success in the West
than in the East, where it was soon superseded by Justinian's
legislation. In the West it was held in high esteem by the
various tribes who overran the Roman Empire.
27. Justinian's codification :—The reign of justinian
(527 A.D. to 565 A. D.) marked the culminating period of
Roman law and was chiefly remarkable for his great reform
of jurisprudence. When Justinian came to the throne (527
A.D.) , roman law was in a chaotic condition. There were on
the one hand various kinds of statute law (leges, plebiscita,
senatusconsutta and constitutions) from the Twelve Tables
downwards and on the other, the edicts of the praetors and the
whole mass of juristic literature. Almost immediately upon
his swcession Justinian conceived the idea of codifying the
whole of Roman law. His compilations consisted of the
following parts
(1) The Codex. —The code is a collection of decrees and laws
enacted by the Emperors and rescripts issued by them. On the
15th February, 528 A. D., Justinian appointed ten
jurisconsults, among whom was Tribonian, to select and
arrange the Imperial constitutions that were in force, with
large discretionary power to retrench what was obsolete or
objectionable and to make such changes as might appear to
them to be necessary to adapt these laws to the existing state
of society. The first edition of the code was completed in 14
months and published in April. 529 A.D. and received the
legislative sanction of the Emperor who abolished all
preceding constitutions. The aim was that the Codex
Justinianus should thenceforward be the sole source of
Roman statute law for all time. This code did not remain long
in use and was superseded by the second edition compiled
after the Digest. The first edition, called Codex Vetus, was
entirely lost. The code that we have is the second edition.
After the publication of the Digest, Justinian in 534 A.D.
appointed a new commission of four jurists, under the
direction of Tribonian, to revise the earlier code and to place
it in harmony with the Digest. This was necessary, chiefly in
consequence of numerous constitutions issued by the
Emperor after the year 529, the most important of which were
50 remarkable decisions given by Justinian to settle a series
of practical contoversies among the ancient lawyers. The
revised code was divided into 12 books, each book into titles,
each title was composed of a number of Imperial constitutions
arranged in chronological order. Different matters were
treated separately. The new code called on account of this
revision 'Codex repetitae praelectionis' was published with
the force of law on the 16th November, 534 A.D.
(2) The Digest or Pandects.—After the publication of the

first edition of the code, Justinian, in December, 530 A.D.
authorised Tribonian, with the aid of 16 commissioners, to
prepare a collection of extracts from the writings of the most
eminent Roman jurists, so as to from a body of law for the
government of the Empire, suited to the wants of the age. Full
power was given to this commission to select only what was
useful, to omit what was antiquated or superfluous, to avoid
contradictions, and to make such alterations or corrections
on the original works as they might think expedient. Ten
years were allowed by the Emperor for this immense work but
it was completed in three years. The commission proceeded to
deal with the works of 39 jurists, consisting of nearly 2,000
books and more than three million lines. In course of only
three years this pile of material was reduced to about one-
twentieth of its original bulk. More than a third of the whole
Pandects was taken from Ulpian who was the largest
contributor. The Digest was divided into 50 books. Each book
with the exception of the 30th. 31st and 32nd, was divided into
titles. Each title was sub-divided into sections. It was

published under the title of Digest or Pandects on the 16th
December, 533 A.D. and declared to have the force of law form
the 30th of that month.
(3) The Institutes.—The Institutes is a brief manual of the
whole law. By order of Justinian it was compiled by a
commission of three members : Tribonian, Theophilius and
Dorothens. Theophilius and Dorothens, both of whom were
professors of law, did all the work of compilation and
Tribonian acted as chairman and decided doubtful points.
This work was intended to be a text-book for students and was
chiefly founded on the Institutes of Gaius but the topics were
retouched, so as to place them in harmony with the changes
which the law had undergone. The Institutes of Justinian
consisted of four books, each of which was divided into titles
and the total number of titles were 99. This abridgement was
limited almost exclusively to matters of private law, which is
considered under the three-fold divisions of persons, things
and actions, For accuracy, lucidity and usefulness, this work
stands unparalleled. The Institutes though intended for use as
a text book for students was binding law and had the statutory
force as the Digest or other parts of the corpus and was
published on the 21st November, 533 A.D.
(4) Novels.—Justinians legislation did not terminate with
the publication of the revised code in 534 A.D. In the
subsequent years, of his reign, from A.D. 535 to 565, the
Emperor issued many ordinances which made important
changes on the law, though their number became less after the
death of Tribonian in 545 A.D. These new constitutions were
written partly in Greek and partly in Latin. They were in fact
a supplement to the code, consisting of laws made by
Justinian after the issue of the code. They were called
Novellae constitutions or more shortly, Novels. They were
officially published after Justinian's death. The whole
number of Novellae was 168, of which 154 were ascribed to
Justinian and the rest to his successors. The Novels contained

admirable rules or private law specially with regard to
intestate succession devised by Justinian.
In modern times Justinians various compilations are
called collectively the corpus juris dvilis.
28. Bluhme's discovery :—One young and ingenious
German civilian named Friedrich Bluhme discovered, in his
learned thesis (published in 1820) for his degree at the age of
23, the clue or method which the compliers of the Digest
followed in arranging the fragment under different titles.
According to him, the commission divided the writings of the
jurists into three groups or masses viz. Sabinian, Edictal and
Papinian masses.
(1) The first group embraced all the systematic treatises on
jus civile. In this group most important work was a
voluminous treaties of Sabinus, upon which Ulpian had
written a commentary. After this book, the group or mass was
called by Bluhme as the Sabinian mass.
(2) The second group consisted of the works on the
praetor's edicts and the Aediles with commentaries thereon.
This group was called by Bluhme as the Edictal mass.
(3) The third was formed of the writings of Papinian and
the record of cases specially where the difficult questions of
law were raised and discussed. After the name of Papinian
this group was called by Bluhme as the Papinian mass.
Tribonian assigned each of these masses or groups of work
to a separate sub-committee and their individual collections,
when brought together and compared, were arranged in order.
This has obtained the name of Bluhme's discovery.
29. Justinian's achievements in Roman law
Roman law had by successive stages of development, and by a
long series of additions and alterations no doubt attained a
definite shape, but it was still anomalous and imperfect, and
it was left to Justinian to give it completeness and symmetry.
Legislation is the greatest achievement of Justinians reign,

and Roman law received its finishing tocuch at his hands. His
object was to recast the ancient legislation by uniting all the
rules of law into one body and thus to provide a complete
system of written legislation for all his dominions. To this
end he codified the whole of Roman law. His compilation
consisted of four parts, viz. Codex, Digest, Institutes and
Novels. (1) The Codex contained all the most valuable and
useful Imperial constitutions. (2) The Digest or Pandects was a
compilation of the writings of eminent jurists. (3) The
Institutes was an elementary work on law intended for use as
a text book for the students. (4) The Novels contained laws
enacted by Justinian and some later Emperors. These various
compilations are collectively called the corpus juris civtlts or
the body of the civil laws of Rome. These works, despite their
faults and defects, deserve the highest praise and have
furnished the basis of a large portion of the jurisprudence of
Europe. The Digest is of incalculable value not only as having
preserved the works of the leading jurists of the day, but also
as illustrative of the history of the times and as affording
specimen of legal reasoning and expression.
Among the other greatest reform of Justinian in the field
of law, the following deserves attention :-
(1) Adoptio minus plena.—Justinian invented the adoptio
minus plena i.e. adoption by a stranger. Under this
Institution, there was no dissolution of the paternal power
and the adoptive father did not acquire that power. The child
acquired the right of intestate succession to the natural as
well as adoptive father.
(2) Delivery (traditio). —Justinian made traditio (delivery)
as the common method of conveyance. Under the old law
there was a distinction in the method of conveyance of things
(res). Res mancipi was transferred by mancipatio and res nec
mancipi by traditto. In the time of Justinian tradition
became the common method of alienation for res corporales
and the old distinction of things and modes of conveyance

disappeared.
(3) Introduction of private ownership in provincial lands
(solum provinciale).—Under the old law there was a
distinction between provincial lands and Italian soil. No
private person could be owner of provincial lands, for it
belonged in theory to the Emperor. The Italian soil was
subject to private ownership. Justinian introduced private
ownership in provincial lands.
(4) Assimilation of usucapio and prescriptto.—Under the
old law there were distinctions between usucapio and
prescription. The former being an introduction of Twelve
Tables applied, to objects susceptible of qu(rtary ownership
(e. g. res rnancpi) and confined to Roman citizens. The latter
was a praetorian defence and applied to non-qWritary objects
(e. g. provincial lands), where usucapio had no application. It
was applied to both Roman citizen-i and foreigners. Justinian
abolished the old distinction between usucapio and
prescriptio and assimilated the two modes of acquisition of
ownership into one.
(5) Removal of distinction between quritary and boriLtary
ownership.—Originally the civil law of Rome recognised only
one kind of ownership known as qurftary (legal) ownership
which was confined to the Roman citizens. Such ownership
could be acquired by a proper method of conveyance. e.g. res
maricipi by mancpatto. The praetor introduced another kind
of ownership known as bontary ownership. In Justinian's
law, the formal distinction between a quiritary and bonitary
owner disappeared. The quiritary owership was merged into
the equitable principle of bonitary ownership.
(6) Option to make inventory.—Under the old law an heir
had unlimited liability to pay the debts of the deceased though
he had not received any asset from him. Justinian relieved
the hens from this unlimited liability by giving him option to
make an inventory of the property of the deceased. When such
Chapter—IL History of Roman Law 61
an inventory was made the heir's liability was limited to the

proportion of the assets that came in his hands.
(7) Substitutions of congnation for agnation as the guiding
rule of succession.—Under the old law agnation was the basis
of succession. Justinian by his two Novels, 118th and 127th,
completely remodelled the order of intestate succession.
Consanguinity was the basis of Justinian's law and blood
relations succeeded ab intestato. The old distinction between
agnates and cognates was entirely removed. He regulated
succession in three classes : (1) descendants (2) ascendants,
and (3) collaterals.
The services rendered by Justinian to the Roman law, may
be compared to that of a gardener, who after uprooting the
weeds and thorns, plants trees in their stead, which bear the
most delicious fruits, and serve as a nursery for generations to
come.
30. Sources of Roman law :—The sources of Roman law
have been discussed in detail in the foregoing topics. We may
now recapitulate the sources (1) leges regkze (the laws of the
early kings) and customs, (2) comitia curiata, (3) comitia
cerituriata, (4) comitia tributa, (5) concilium plebis, (6) edicts
of the praetors, (7) writings of the jurisconsults and responsa
prudentium, (8) senatusconsulta and (9) imperial
constitutions.
CHAPTER—Ill
DWISION OF ROMAN LAW
Division of Roman Law:—Roman law is divided into
public and private.
Public Roman law deals with administrative and
legislative functions exercised by various parts of the Roman
state. It deals with the constitution of the state and the
relation between the Government and the individual
members of the community. It also includes the judicial
organisation, military and naval establishments, finance
and other departments unde- the charge of public officers
employed, by the Government. Criminal law is treated as a
part of public law.
Roman private law deals with the rights, duties, capacities
and incapacities of private individuals. It treats of the
relation of the individuals infer. Se. It is the law of private
status. According to the Institutes of Justinian private law
may be classed under the three heads viz., the law of persons,
the law of things and the law of actions. It is convenient to
discuss Roman private law under the following heads :-
(1) The law of persons.—It considers the rights, duties,
capacities and incapacities of individuals and their relation
to the family group. The family group consists of individuals
connected by a real of fictitious tie of common descent.
Persons are divided into natural and artificial. A natural
person is a human being and an artificial person is an
association of persons invested by law with a personality. In
the Roman law an artificial person is called universitas
persona; a corporation is an example of artificial person. The
following topics may be considered under the law of persons
viz, citizens and aliens, freedman and slaves, Roman family
and patria potestas, marriage, adoption, legitimation, tutors
and curators.
Chapter—Ill Division of Roman Law 63
(2) The law of property.—It includes ownership, possession
and jura in realiena.
(3) The law of succession.—It may be intestate or
testamentary, Intestate succession deals with the nature of
succession which is universal, the classes of heirs and the
order of succession. Testamentary succession deals with
different forms of wills, essentials of Roman will, the rules of
institution and substitution, trusts, codicilli and legacies.
(4) The law of obligation.—It deals with the different
sources of obligation viz, contract, quasi-contract, delict and
quasi-delict.
(5) The law of procedure.—It deals with the adjective law.
The earlier form of procedure is the legis actio. The praetor
introduced the formulary procedure which superseded the
legis actio. The formulary system is again superseded in the
Imperial period by a new system known as the extraordinary
procedure.
Roman-6
CHAPTER—IV
THE LAW OF PERSONS
1. Person :—According to Roman law a person was one
clothed with rights and obligations. In Rome a slave had no
rights and obligations and was therefore regarded not as a
person but a thing. Persons were divided into natural and
artificial. A natural person may be considered under the
following divisions :—(A) Is the person free (llbertas) or unfree
(slave)? In case he is free, whether he is born free (ingenuQ or
made free (ltbertfni)? (B) "Is he a citizen (civitas) or a non-
citizen? (C) Is he su( jurs (independent) or aUeni juris
(dependent)? (D) If suijurts, is he fully independent or is he
under a guardian (tutor) or a care-taker (curator).
(A) First Division of the Law of Persons. Slavery :-

2. The causes of Slavery :—Slavery arose in the
following ways
(1) By birth.—According to the civil law the condition of
the child was entirely determined by the condition of
the mother. If the mother was a slave at the moment
of birth, the child was a slave.
(2) By capture in war.—The prisoners of war were
considered the absolute property of the captor and
were either retained for the service of the state and
employed in public works or were sold by auction as
part of the plunder.
(3) By collusive sale.—If a free person allowed himself to
be sold as a slave in order to share the purchase
money and to defraud the purchaser by declaring
after sale his true status, he was reduced to slavery
and could not afterwards recover his freedom.
(4) By judicial sentence.—By judicial sentence Roman
citizens might be condemned to slavery as a
Chapter—Ill The Law of Persons 65
punishment for heinous offences. Persons
condemned to death or to work in mimes or to fight
with wild beasts became serul poenae (slaves of
penalty).
(5) For gross ingratitude. —A freed man guilty of gross
ingratitude to his late master might be recalled into
slavery.
(6) For evasion of census etc.—Under the old law citizens
who evaded the census or military service might be
sold as slaves.
(7) By marws injectio.—The debtor who suffered manus
injectio (bodily siezure of the person of the debtor)
became one who was ultimately sold by his creditor
as a slave.
(8) For theft.—A thief caught red handed might be
reduced to slavery.
3. The legal condition of a Slave :—According to the

jus civile a slave was a res (property) or a chattel and not a
person. Slaves were sold in the open market; a large portion of
the wealth of the Romans consisted of slaves. They were under
the power of their master who had absolute control over their
actions, their industry and their labour. The slave could own
no property. Whatever they acquired belonged to the master.
He could transfer them like his goods and chattels by sale, gift
or legacy to any one he pleased. They had no political or civil
rights. They were neither legally bound by obligation nor
could they bind others. The master had the absolute power of
life and death over his slaves who could be killed or toutured
at his master's caprice. The power of the master over his slave
was spoken of as the dorniriica potestas.
Though originally the master had an absolute right over
his slave, it is impossible to suppose that in early Rome their
right was either generally exercised or abused. Slaves were few
in number and they were probably well treated by their
66 Roman Law Chapter—IV
masters. But with the growth of Rome as a world power the

conception of slavery changed. During the later part of the
Republic and under the Empire the number of slaves became
immensely increased, chiefly owing to the number of
prisoners taken in war and it was not at all uncommon for an
ordinary citizen to possess 200 slaves. Necessarily the old
domestic relation disappeared and the increase of wealth and
luxury with the resulting corruption and cruelty led to the
abuse of the masters rights. Under the Empire, therefore,
legislation was found necessary for the protection of the
slaves, and the following laws were passed to ameliorate the
condition of slaves :-
(1) By the tex Petronia (passed before 79 A.D.) masters
were forbidden to deliver their slaves to the beasts
without an order of a magistrate.
(2) By an edict of Claudius, slaves whom their masters
abandoned as old or infirm thereby acquired their
freedom.
(3) Hadrian required the consent of the magistrate in all
cases before death was inflicted to a slave.
(4) Antoninus Pius made it obligatory upon masters
who had been guilty of excessive severity towards
their slaves to sell them to more considerate
persons.
(5) The same Emperor brought the killing of a slave
without cause within the scope of the lex Comelia de
sicarils which made the killing a homicide, the
punishment of which was death or exile.
(6) Antoninus by a rescript directed the provincial
Governors to enquire into the complaints of all
slaves who took refuge at the statues of the Emperor
or in the temples due to illtreatment of the masters
and if it appeared that they had been treated with
unreasonable severity, they should be sold by public
Chapter—IV The Law of Persons 67
authority on equitable terms, so that they might

never return again under the domain of their former
masters.
Proprietary right of a slave.—A slave had no rights of
property under the Roman law. Whatever he acquired was for
his master's benefit. The only exception to this rule was the
pecuUum which consisted of the slave's savings from industry
or gifts as a reward for extraordinary services. This was
regarded as a favour rather than a right as the pecuUum
belonged in law, like the slave him-self, to the master, who
could resume possession at any moment. But masters had not
largely exercised their right to resume possession and the
slaves purchased their freedom from their masters with their
pecultum. On being freed a slave took his peculium in the
absence of any express agreement to the contrary.
Contractual capacity of a slave.—A salve being a human
being might as a fact make an agreement either with his
master or some third person. In neither case did the
agreement amount to a contract in the strict sense, because
the slave could neither sue nor be sued upon it. But if a slave
made an agreement with a third person, the later incurred a
civil obligation, which the slave's master could enforce, and
so secure the benefit of the promise. In certain cases the
master might be liable on such contract. In any case the
slaves' contract gave rise to natural obligations, which though
not enforceable at law, were not without legal consequence.
Suppose a master took loan from his slave, the obligation to
pay was natural but could not be sued on. But if the master
freed the slave and paid the debt and afterwards repenting,
tried to get it back, the natural obligation sufficed to defeat
him. And the case would be the same had the debt been
contracted and paid by a third person.
Liability of slave in delict—A slave might be wronged
either by his master or by a third person. If he was wronged by
his master, he had no legal redress, though the state might
68 Roman Law Chapter—N
interfere under the enacted laws mentioned above and punish

the master on his behalf. If the injury was the act of a third
person, the slave had no remedy which he could personally
enforce; the wrong was regarded as done to the master. Thus if
it resulted in actual damage to the slave, the master could sue
under the lex Aquilia. If, on the other hand, the act was
intended primarily as an insult to the master, he could sue by
the actio injurianum. If the slave had been wilfully killed, the
master could prosecute the offender under tile lex Comelta dc
sicartis.
With regard to wrongs done by a slave to his master, no
legal obligation arose, though the master might take the law
into his own hands subject to protective legislation
mentioned above and could be his own judge and executioner.
If the slave had wronged a third person, the master was at first
bound to give him up to the vengeance of the person wronged.
Later he had the option of either surrendering him or paying
damages.
4. The way in which a slave could become free
(termination of slavery) :—This might happen in one of the
following three ways :-
(1) By the doctrine of postliminium (recrossing the border
into the Empire). If a Roman citizen was captured in war by
the enemy, he thereupon became a slave and lost all his legal
rights. If how ever, he escaped from the slavery and returned
to Rome, he thereby became not merely a free man again, but
by the fiction of opstiliminium his freedom dated back to the
moment of capture. He got back his old position and legal
rights as if he had never been away.
(2) By Statute e.g. under the edllctum claudianum.
(3) By manumission (emancipation).—Manumission was
either formal or informal. The chief formal manumissions
were the following :—(a) manumission by vindicta (rod), (b)
manumission by cerisu (census). (c) manumission by
testament (will) and (d) manumission in ecciesils (Churches).
(a) Manumission by vindicta.—Manumission v (ndcta

was eflected by means of an injure cesso (fictitious
law-suit.) The master, his friend (called adsector
libertatis) and the slave used to come before the
praetor. The friend was the plaintiff in the action;
holding a rod in his hand, he clamimed that the
slave was a freeman and touched him with the rod.
The master did not dispute the claim but rather
admitted his freedom. The praetor thereafter
pronounced the slave to be free.
(b) Manumission by censu.—When the slaves name was
inserted with his masters consent on the census roll
of citizens by the censor at the quinquennial census,
the slave was declared manumitted.
(c) Manumission by testament.—Manumission by
testament was the bestowal of freedom by the
masters last will and he might either give the slave
his freedom directly or might give it indirectly by
requesting the heir or lagatee to manumit. In the
former case the slave became Ubertas orcinus (god of
the grave) because the person who had given him his
freedom was dead and in the latter case he was the
libertas of the heir or legatee as the case might be.
(d) Manumission in ecclesiis.—During the time of the
Christian Emperors, slaves could be manumitted in
the presence of the congregation.
Before the close of the Republic, there were several forms
of informal manumissions :-
(1) Manumission by letter (per espistolam), This was
effected when a master wrote to a slave that he wished to
confer freedom on him. The letter was regarded as sufficient
evidence of the master's intention to manumit the slave.
(2) Manumission among friends (inter amicos).—When a
master declared before his friends that he wanted to manumit
a certain slave, that slave was considered manumitted.
70 Roman Law Chapter—iv
(3) Manumission at funeral (pileo). If a slave followed the
burial procession of his master, according to the terms of his
will, wearing the cap of liberty he was considered
manumitted. (The cap was called pileus, hence the name
manumission ptleo).
In the time of Justinian slaves could be set at liberty by
their masters at any time they liked, for example when a
magistrate was passing along a street or a praetor was going to
the bath or when a magistrate was on his way to a theatre, a
slave could be taken before him and declared free then and
there.
5. Laws restricting manumission : —At the beginning
of the Christian era three important enactments were passed
with regard to manumission, viz.
(1) LexAelia Sentia (4 A.D.),
(2) Lex Fufia Cantnia (8 A.D.) and
(3) Lex Junta Norbana (19 A.D.)
(1) Lex Aelia Sentia (4 A.D.).—The provisions of the lex
Aelta Sentia may be stated as follows :-
(a) All manumission in fraud of creditors was void and
a manumission was fraudulent where the master
was either insolvent at the time of manumission or
became so by the manumission itself.
Ib) When a slave was less than 30 years of age, he could
not be manumitted unless it was effected by vtndtcta
and there were sufficient cause (e.g. intent to marry a
woman so freed or for meritorious service rendered
and so forth) approved by a councial appointed to
consider these cases. If a slave was manumitted
under 30 years of age in any other manner he became
a person in 'libertate' merely.
(c) A master under 20 years of age could manumit his
slave by vindicta after a good cause, shown to the
council. Manumission in any other manner was
void.
Chapter—Iv The Law of Persons 71
(d) Slaves who before manumission had been subjected
to degrading punishment (e.g. had been made to fight
in the arena) became a dedttictt on manumission.
(2) Lex Fufia Caninta (8 A.D.).—Lex Fufia Caninia was
passed to prevent excessive manumission of slaves by will. It
became common for testators to set free inordinate number of
their slaves to secure their presence at their funeral as living
witnesses to their kindness. This law set limits to the number
of slaves who might be freed by will, and provided that a
master of one or two slaves could free all but if he had more,
he could manumit only a certain proportion. The proportion
was decreasing as the total number increased. Thus the owner
of ten, thirty and one hundred slaves could manumit half,
one-third and one quarter respectively and over that number,
one fifty. The number could in no case exceed one hundred and
the slaves to be manumitted had to be expressly named.
(3) Lex Junta Norbana ( 19 A.D.).—Lex Junta Norbana is of
uncertain date. The date commonly assigned is 19 A.D. It
provided that the imperfectly manumitted slaves should be
regarded as latinijuntant. They were free but not citizens of
Rome.
6. Classes of persons at the beginning of the

Empire :—The following classes of persons are found at the
beginning of the Empire :-
(1) IngenuL—They were persons bron free and were citizens
with full rights and obligations. A free-born person did not
cease to be tngenuus if he was reduced to slavery and
afterwards he recovered his liberty.
(2) Ltbert(ni or liberti.—They were ex-slaves who on
gaining their freedom became citizens. They were subject to
political disabilities which did not prevent them from rising
to high of fire and amassing wealth. The only limitation was
that during the Republic they could not marry ingenui (free
born) or under the Empire they could not be persons of
senatorial rank. They might not be adopted by any tngenuus

other than their patron, They could not wear the gold ring
which was the mark of a free born citizen. At length when all
freedmen without distinction became Roman citizens,
Justinian conferred on them the right of wearing the gold
ring.
(3) Juniani.—They were ex-slaves who, by reason of
imperfect or defective manumission, became something short
of full citizens. They were free but not full citizens. They had
no public rights and the connubüim (right to marry according
to civil law). But they had part of the commercium i.e. they
could acquire proprietary and other rights inter vivos, but not
mortis causa. They could neither take under a will nor make
wills, nor be appointed upon their patron just as if they had
always been slaves. Subject to these disabilities, a latinus
junianus was a free man and his children, though not under
his potestas, were full citizens. A latirtus junanus, unlike a
dedtttcius, could improve his position and become a citizen in
many ways, of which the following are examples :—(a) Iteratto
(by repetition) i.e. the first manumission being defective, he
was freed again in a strictly legal manner, (b) By Imperial
decree, (c) By bearing three children in case of a woman, (d) By
military service, (e) By building a ship and importing corn for
six years, U') By making a building or by establishing a bake
shop.
(4) Dediticw.—They were ex-slaves; they consisted of
manumitted slaves who had been guilty of some infamous
crime. They could never become citizens, though they were
free they could not be citizens under any circumstances and
were not allowed to live within 100 miles on Rome. If they
broke this provision they became slaves again and could
never be subsequently free. They could not make any will as
they were not members of any community. On their death
their goods passed to their old masters.
(5) Slaves (see section 3 ante).
7. Justinians changes relating to libertas :-
Justinian made the following changes in the law relating to
ilbertas : ( 1) He abolished altogether the 1atfnijunant and
dethtcjj, and made all manumitted slaves citizens. (2) He
entirely repealed the lex Fufia Cantnia. (3) He repealed the
provision of the lex Aelia Sentta with regard to the
manumission of slaves under 30 years of age. (4) He retained
the provision of the lex AeUa Seritta that a master under 20
years of age could only manumit by vi:ndicta after a good cause
shown to the council but modified it so as to enable a master
to manumit by will at 18 and later by a novel at 14 years of
age. (5) The provision of the lex AeUa Sentia, that made
manumission in fraud of creditors void, was retained. (6)
When a slave was instituted as an heir, he got his liberty by
implication whether his master was insolvent or not. (7) A
manumission in ecciesus was no longer required for a valid
grant of freedom. Any declaration of intention, however
informally expressed, was sufficient.
8. Patron's right :—The freedman was called libertas in
relation to his former master who was called his patron or
patronus. After manumission his patron retained certain
rights over his freedman. Manumission did not wholly break
the bond that united the slave to his master. The relation of
master and slave was replaced by the relation between the
patron and freedman. The freedman was bound to treat him
with the same respect as a child of his parent. He could not sue
his patron without first obtaining the consent of the praetor.
He was bound to support a poor patron or patron's family
according to his means, conversely the patron who failed to
support his freedman when he became poor, was deprived of
the right of patronage. He was under a moral duty to perform
certain reasonable services for his patron. Generally, the
freedman worked so many hours everyday. When a freedman
died intestate and without heirs, the patron succeded to his
effects.
9. Quasi slaves :—The following persons were in a
position more or less akin to slavery
(1) Statu liber.—He was a slave made free by will on the
fulfilment of some condition e.g. "Let my slave X be
free if he pays my heres 100 aurei." Until the
condition was fulfilled he was the slave of the
testator's heir.
(2) Client.—A client was a plebeian who in early Rome
was attached himself for protection of his life and
property to a patrician who was called his patron
and to whom he stood in the same relationship as a
ftliusfamthas to his pater, but he was protected
against rough treatment of his patron by a religious
sanction.
(3) Coloni.—They were the 'villeins' of the later Empire.
They were free in the eye of law but were inseparably
attached to the soil and were transferred with the
land. They could not leave the land without their
lord's consent and were in many respects like
ordinary slaves. They could contract marriage and
they enjoyed certain rights but in other respects they
resembled the slaves.
(4) Bonafide servens.—He was a free man who acted as
a slave for a master under a genuine mistake as to
his status. So long he remained in this condition,
everything he made by his labour or by means of the
goods of his supposed master, belonged to the master.
(5) Auctoratt.—They were free men who hired
themselves out as gladiators. They retained their
freedom but were like slaves in that if they were
enticed away from their hirer, the hirer could bring
an actiofurt (action for theft).
(6) Redempti,—They were men who having been taken
prisoners in war had regained their liberty on
condition that ransom money was paid and until
this condition was fulfilled their late captor was

regarded as having a lien on them to secure payment.
(7) Judicat rtexi. —Under the old law a man who
suffered martus tnjectto might be adjudged by the
magistrate to the creditor, who at the end of 60 days
and after certain formalities had the right to sell
him as a slave across the Tiber. After being adjudged
by the magistrate and before being sold, the status of
such a person was a kind of defacto slavery.
(8) Persons in rnartcipU catisa, (see section 31 post)
(B) Second division of the law of persons. Civitas :-
10. Civitas (citizenship) :—In early Rome people were
divided into citizens and the peregrirti (foreigners). A mans
public and private rights entirely depended upon whether he
was a citizen or not. A citizen enjoyed the following rights :-
(1) Jus suffrag( i.e. the right to vote.
(2) Jus hortorum i. e. the right to hold public office i.e. a
magistracy.
(3) Jus connubit i.e. the right to contract a marriage
according to the jus civile, giving rise to patria
potestas over the issue.
(4) Jus commercüi i.e. the capacity to acquire and
dispose of property, to make a contract, to make or
take under a will according to the forms of Roman
law.
Acquisition of citizenship.—Citizenship could be acquired
in the following ways :(1) By birth.—The child of a lawful
marriage followed the condition of father and became a
citizen provided the father was a citizen at the time of
conception. If the child was not the issue of the lawful
marriage, he followed the condition of the mother. (2) By
manumission (emancipation).—By manumission a slave
could become a citizen if the master had manumitted him
according to the formalities prescribed by law. (3) By grant.-
Citizenship could also be granted to an individual or to a

community as a favour by the senate or by the King or by the
Emperor. This was equivalent to what is called
naturalization.
Loss of citizenship.—Citizenship was lost in one of the
following ways :-
(1) By loss of liberty i.e. when a Roman citizen became a
prisoner of war.
(2) By judicial sentence.—When a Roman citizen was
punished with deportation for crime.
(3) By voluntary act.—When a Roman citizen renounced
his rights of Roman citizenship and became a citizen
of another state.
Peregrini.—The Peregr(rti ( foreigners) were the non-
citizens of Rome. They were the members of the foreign
communities with which Rome had friendly relations. These
communities were gradually incorporated in the Roman state.
Originally the foreigners had no claim to the civil law of
Rome which was meant for the Romans. They were governed
by the rules of Jus pentium as administered by the praetor
peregrinus, and could not get the benefit of the Jus ctvlle. They
had neither political nor civil rights nor jus cormubium.
Their marriages though valid were not regarded as justae
riuptiae. They could not use the formal Roman modes of
transfer of property, but the simple method of traditio
(delivery) was available to them. In the Republican period
some of the foreigners who had commercial treaties with the
Romans were allowed to enjoy jus commercium. With the
progress and vast expansion of Roman territory during the
Republic, new allies eager to participate in the privileges of
citizenship flocked to Rome. The refusal to these privileges led
to a social war at the end of which in 89 B.C., full citizenship
was conferred upon all the inhabitants of Italy. The
importance of civitas declined in the Imperial period. After
Chapter—N The Law of Persons 77
Caracalla its significance was almost wholly lost and

citizenship was granted to all the inhabitants of the Empire;
under Justinian every free subject of the Roman Empire was
ipso facto a citizen.
The Latins formed an important class of non-citizen.
Originally the name Latin denoted an inhabitant of Latioum
and then it was applied to any member of the Latin league,
finally it signified an inhabitant of Italy who was not a
Roman citizen. The Latins had enjoyed jus commercium but
not jus cortmubiijrn. Under the Empire the distinction
between the various classes of non-citizens disappeared.
11. Capitis deminutio :—Caput means status or
personality of a person. The expression capitis dem(rtutio
means a change in status. It, therefore, implies that the
individual to whom it happens loses altogether his former
status, his old position in the eye of law, and begins an
entirely new legal existence. The caput was made up of three
elements, viz.,
(1) Ubertas ( liberty);
(2) civitas (citizenship) ; and
(3) farntlia (family). Any change in one of these
elements brought about a capitis deminutio which
did not necessarily mean a lessening of status but
simply meant a change in status.
Capitis deminutio were of three kinds :-
(1) Capitis deminutio maxima. When a person lost his
liberty, he suffered a capitis demirtutio maxima. This was the
greatest calamity that could befall upon a Roman, because it
involed the loss of liberty, citizenship and family. This
happend when a Roman citizen was taken as prisoner of war
or condemned to slavery.
(2) Capitis deminutto media.—When a person remained
free but lost his citizenship the capitis deminutio media took
place. This occurred when a roman became a member of
another state. It involved the loss of citizenship and family

rights without any forfeiture of personal liberty.
(3) CapWs demnutic minima.—When one ceased to belong
to a particular family, he is said to suffer captis deminutlo
minima. It took place in the following cases :—(i) Where a
woman pased in 'manurn' (control) on her marriage, (ii) Where
a woman made a coemptiofiduc(ae causa, (iii) Where a person
in patria potestas was given in adoption, provided that in
Justinians time, the adoption was in plena, ( iv) Where a
person in patria potestas was given in noxae dedition
(surrender), (v) Where a person suijuris (independent) became
alientjuris (dependent) by arrogation or by being placed under
potestas by legitimation, (vi) Where a person alieni jurts
became suijuris by emancipation.
Effect of capiti.s deminutio.—The capite minutus (the
person who had undergone a change in status) was a new man
in the eye of law. When a Roman suffered cap ttis demiriutio,
he ceased to be a member of the family and became a stranger.
He lost his agnatic and cognatic tie with the family. Gaius
compared him with a man who suffered civil death. The
praetorian law modified the civil law regarding cap itis
demiriutio. According to jus civile a capite minutus was freed
from the obligation he owed before the capitis deminutio. But
the praetor gave action against the capite minutus for the
benefit of his former creditors. From the time of praetorian
change the capite minutus could no be regarded as civilly dead
for all purposes. Under the praetorian law the emancipated
son was an heir along with sut heredes, though he suffered
capitis deminutio minima on his being emancipated.
(C) Third division of the law of persons. Familiae :-
12. The Roman family :—In primitive Rome the family
was the unit of society: the individuals counted nothing. It
was the primary cell out of which the state evolved. It was like
a corporation which never dies. It was an imperiwn in
imperlo (a kingdom within a kingdom).
Chapter—TV The Law of Persons 79
Constitution of family :—The family consisted of the
paterfamilias, his wife, children and slaves. It was governed
by the paterfamilias who was the eldest male member of the
family. All the members of his family, the farm house, the
flocks and the herds were under his absolute control. He
represented all the subordinate members of the family for all
purposes. He alone was suijurLs (independent) and all others
were aUertijuns (dependent). The family was artificial and it
included not only the members born into it but also the
strangers by adopition. The membership of the family was
determined by patria potestas. Whoever was under his power,
was within the family and whoever was freed, ceased to belong
to the family. Hence an adopted son was taken as a member of
the family, on the other hand an emancipated son was a
stranger to the family. After the death of the paterfamilias
each of his sons became sut juris and paterfamilias. The
original family was broken up into as many families as there
were sons who were capable of starting independent families
of their own. But the daughters could not be the heads of the
families with subordinate members.
The Roman family had three aspects., viz., religious,
political and proprietary.
(1) Religious.—In this aspect the family was greatly
concerned with the sacra (religious rites) which was the link
between the dead and the living members of the family. The
hearth was the altar of the private cult, and the paterfamilias
was the priest. The early Roman family rested upon ancestral
worship as in ancient Greece and India. The ancient Romans
regarded the family as the great instrument for keeping up the
peculiar rites upon the due observance of which depended the
happiness both of the dead and the living. To neglect them was
to commit an abominable cruelty to his ancestors, and to
bring down a curse upon his house. The future happiness of
the son would depend upon the due performance of the family
sacra. The extinction of the family was regarded with horror.
Roman-7
(2) Political—In this aspect the paterfamiltas framed laws

for the government of the family. He had the power of life and
death over its members. He was absolute within the family
circle and the law of the state did not extend there. The
paterfamilias was in a sense the king of the family.
(3) Proprietary—In this aspect every person and
everything in the family belonged to the paterfamilias. He
was the owner of the family.
The early Roman law recognised only one kind of
relationship known as agnation i.e. the relationship was
always traced through the male line: cognatic or blood
relationship was not recognised. This was also due to the
influence of patna potestas.
13. Agnation :—The bond that united the members of a
family through patricz potestas was called agnation. In early
Rome the legal relationship was agnatic i.e. the relationship
was traced through males. The rights of family and succession
were enjoyed by agnates only i.e. persons who were related to
each other through males.
The foundation of agnation was not the marriage of father
and mother but the authority of the father (patria potestas).
The relationship was limited to and determined by patria
potes Las. Where the potestas began kinship began and
therefore the adopted child was the kindred; where the
potestas ended kinship ended and accordingly a son
emancipated by his father lost all rights of agnation. So also
the descendants of females were outside the limit of kinship.
A mother was considered to be related to her children upon a
fiction that she had altogether given up her own family and
passed into the family of her husband. She was looked upon
as a quasi-daughter of her husband. She was not related to her
children as a mother but was looked upon as their sister. On
the basis of this notion she was allowed to take a daughters
share in the succession of her husband. Her children were
related to her only on the theory that she was their sister and
they were not related to her family at all. A paternal uncle was
a near relation but a maternal uncle was a stranger in blood.
This theory of relationship was called agnation.
Who were agnates.—According to Sir Henry Maine,
"Agnates are those persons who are under the same potestas or
would have been under the same potestas had the original
ancestor been alive." The Roman family in ancient times was
a collection of individuals and it recognised the power of a
single chief Whoever was under this power was within the
family. If the great grandfather happened to be alive, a
grandfather of sixty years was as much a son and as much
subject to his control as the youngest infant in the family. All
persons subject to the potesta.s were agnates to each other and
they remained as agnates even after the common ancestor had
died.
In the Institutes of Justinian agnates are defined as those

cognates (blood relations) who are related through males. But
this definition is inaccurate because although agnates are
primarily cognates and traced through males, the agnatic
household might be artificially diminished or increased. It
would be diminished by the marriage of a daughter into
another family, by emancipation of any descendant in power,
and by giving in adoption into another family Conversely it
would be increased by the accession of a woman by marriage
into the family and by adoption or arrogation of a stranger
into the family. Agnates, therefore, may be described as (1)
blood relations (cognati) traced solely through males,
excluding such cognates as have left the family by
emancipation or otherwise, and in addition to these blood
relations, (2) such persons, unrelated by blood, as have been
brought artificially by adoption or otherwise into the family.
In other words, all persons related to a male or a female by
male descent, natural or fictitious, are his or her agnates.
unless the tie of relationship has been broken by cap itis
demirtutto.
14. Cognation :—Cognation means blood relationship

whether on the fathers side or on the mother's side. Cognates
are those relations who trace their common descent from the
same pair of married persons. The relation of cognates is
connected by the interposition of one or more females. Thus a
brothers son is his uncles agnate; a sister's son is his cognate,
because a female is interposed in that relation. Justinian
abolished the distinction of the old Roman law between
agnates and cognates and admitted both to the legal
succession.
15. Patria potestas and its effects :—The

paterfamilias exercised patria potesto.s. It was' the power
which he had exercised over the person and property of all the
members of his family. It conveys a collective idea of the sum
total of the powers wielded by a Roman father as the supreme
ruler of his household. The person or persons over whom
these powers were exercised are called flhiusfamilLas or
fitifami1ias. According to the strict theory of juscivite, his
power was supreme within the family and he had the power of
life and death over the members of his family. He could expose
his children in his power, chastise them, sell them as a slave
or kill them. He determined who should belong to the family.
He could expel a member from the family. No member could
marry without his consent and even if they were married he
could divorce them. He could give them in adoption, dispose of
their Property and surrender them as slaves to the
complainant in an action of delict.
Limitation of paternal power—The absolute power of the
paterfamilias continued down to the end of the Republic.
Afterwards the extent of this power was considerably limited
through the legislation of the Emperors. Hadrian punished
with deportation a father who had killed his son. Alexander
Sever-us limited the right of the father to simple correction.
Constantineenacted that the father who killed his son should
be guilty of murder and should suffer the consequences of
death of a parricide. The sale of sons as slaves was practically

obsolete in the time of the classical jurists though even in the
time of Justinian a father might sell his new born children in
case of extreme poverty. The right of the pater to give the child
in adoption was limited by the consent of the child in
question. In Justinian's time the paterfamilias had the right
to inflict moderate chastisement and the right to veto the
children's marriage. Justinian restricted the noxal actions to
slaves only and the child could not be surrendered in
satisfaction to the accuser.
Proprietary right of fihiasfamlltas (son).—In early law the
son could not own any property. All that the acquired went to
the head of the family. Until the Empire, the only sort of
property a son had was the pecultum. It was the property
which his father allowed him to use, administer or trade upon
but 'the father could take it back at any time. In the early
Empire a series of changes began and a son came to acquire a
distinct proprietary right. Peculium was of several kinds
(1) Peculium castrerise.—Augustus introduced the peculium
castrense, which embraced whatever the son acquired on
military service. This pecutiurn was withdrawn from the
potestas of the pater and the son could dispose of it inter vivos
and by will. If the son died in the lifetime of his father without
having disposed of it by will, the father took the property as if
it was his own. After Justinian's legislation he took it by
inheritance.
(2) Peculium quasi-castrense.— Under Constantine came
the peculium quasi-castrense. Whatever the son earned as a
civil servant was his own property but he could not dispose of
it by will. The privilege of disposal by will was afterwards
conferred by Justinian. Subsequently this peculium came to
embrace everything the son earned in his professional
capacity.
(3) Peculium adventicium.— Under Constantine also arose
the peculium adventicium. All property which the children
inherited from the mother or received from the strangers, and

all acquisitions not coming from the father, and not falling
under the description of pecultum castrense or quasi-
castrense were called peculium aciventicium. The father was
merely to have a life interest in it and the dominium or
reversion remained in the son. In the time of Gaius a father,
on emancipating a son, retained absolutely one-third of the
pecultum adventicium. Justinian altered the law and the
father was allowed to take a life interest, in half of this
peculium and the son got the income of the remaining half
during rest of the father's life time and on the father's death he
was the owner of the whole.
(4) Pecullum profecticium.—When the son received from
his father a particular fund for the purpose of administration,
it was called peculiu'm profecticium, and as a general rule, this
remained the property of the father. But the son retained this
fund when he ceased to be under power by his nomination to a
high office in the state, or when his father emancipated him
without withdrawing the peculium.
Contractual capacity of a son.—A son's contract with a
third person gave rise to a civil obligation, though originally
any benefit accruing under such a contract accrued to the
paterfamilias, who could not be detrimentally affected by it.
In theory a son could enter into as many legally binding
contracts as he liked but people would not be willing to deal
with him except in two cases:—(1) Where he was contracting on
his own behalf in relation to his peculium which he acquired
under the Empire, (2) where the son was acting as his father's
agent.
Liability of a son in delict.—A son wronged by his father
had no legal redress. If he was wronged by a third person, it
was normally the father and not the son who could sue,
though the son could bring the actio injurianum (action for
injury). If the son injured his father, the father could inflict
such punishment as he pleased. But in the latter period of
Roman law serious punishment could only be ordered by the

magistrate. If the wrong was done by the son to a third person,
the father was bound originally to give the son as a quasislave
(in mancipli cause) to the vengeance of the other person. Later
on, he was allowed either to surrender the son or to pay
damages. By the time of Papinian when a son was given in
noxae deditlo ( surrender) he would not remain for ever in the
position of slave to the person wronged but he would remain
there until he had 'worked off by his labour the amount
payable as compensation. Finally Justinian abolished the
noxal surrender altogether in case of a son.
The position of a son in public law.—Patria potestas was
confined to the limits of the family. It had no application to
the public law. In all public affairs the son was as free as his
father and was entitled to receive the honours of the state, to
hold the magistracy or tutorship. The father and son voted
together in the popular assemblies and fought side by side in
the field. The son could command an army in the field and as
a general might command the father or as a magistrate decide
on his contracts and punish his delinquencies. He was eligible
to win the highest position in the state. In later times, when
the son was elevated to the consular dignity and other high
offices of the state, he ceased to he under paternal power but
retained his right of succession.
Causes of survival of pat na potestas.—A question arises
why pat na potestas lasted log. Leage holds that the exclusion
of public law from the incidents of potestas, coupled with the
growth of the various peculium, mitigation of the father's
power of life and death over the children and the fact that
emancipation was always possible, probably account for the
survival of patria potestas through the whole history of
Roman law.
16. origin of patria potestas :—The paternal power was
acquired by
(1) justiae nuptiae (marriage),
86 Roman Law Chapter—N
(2) legitimation,
(3) adoption, and
(4) arrogation. We may now consider the topics in order.
17. Justiae nuptiae (marriage) :—Justiae nuptiae is
defined by Justinian as the lawful union of men and women
whereby they consented to lead an undivided life. Marriage,
according to Roman law, was a contract by which a man and
woman entered into a mutual engagement in the form
prescribed by law to live together as husband and wife during
the remainder of their lives. The husband was called vir and
the wife uxor.
Forms of marriage.—In early Rome there were two forms
of marriage widely different in their effects upon the position
and property of the wife : (1) marriage with marius and (2)
marriage without manus. The former occurred when both the
parties to the marriage had the jus connubi (the capacity to
enter into a lawful marriage). It brought the wife, the children
and her property under the control of her husbands
ascendant. It severed the agnatic connection of the wife with
her fathers family. She became her husbands agnate.
Originally it was strictly confined to Roman citizens. This
form of marriage was also called mat rirnonium jus turn. In the
latter form of marriage the jus connubi was wanting with the
parties to the marriage. It was confined to the aliens and it did
not affect the status of the wife. She remained in the family of
her father and her agnatic relationship with the members of
her family of origin remained in tact. She had the power to
dispose of her property freely. This form of marriage was also
called rnatrtmonium norijustum. In ancient times marriage
was restricted within the classes to which the parties
belonged. Thus the plebs could not marry patricians. This
restriction was removed by lex Canuleia (445 B.C.) which
allowed inter marriage between the patricians and plebeians.
The marriage with manus had almost disappeared before the
end of the Republic. Under the Empire the normal marriage
Chapter—Tv The Law of Persons 87
was without manus and such a marriage was a valid marriage
in the fullest sense of the term.
As distinguished from justtae rtuptiae, there were two
kinds of unions (1) concubinatus and (2) contubernjum.
Concubjnatus.—Concubjnatus was a permanent union
between a free man and a woman without marriage. The man
who had a lawful wife could not take a concubine. A man was
neither permitted to take as a concubine the wife of another
man, nor to have more than one concubine at the same time.
In later times concubine was called amica. It was not
uncommon between persons of unequal rank and sometimes
it was resorted to by widowers who had already lawful
children and did not wish to contract another legal marriage.
An unmarried person could have a concubine. The children
born in concubinage were neither under the power of their
father nor entitled to succeed as children by a legal marriage.
But they could demand support from him and succeed from
their mother. Under the Christian Emperors concubinage was
not favoured, but it subsisted as a legal institution in the time
of Justinian. At last Leo, the philosopher, Emperor of the
East, in A.D. 887, abolished concubinatus, as being contrary
to religion and public decency. He said why should you prefer
a muddy pool when you can drink at a purer fountain? The
existence of this custom, however, was prolonged in the west
among the Franks, Lombards, and Germans.
Contuberriium.—Contuberrjjum was the union between a
male and a female slave with their master's consent. It did not
produce any of the legal consequences of marriage proper. The
slave husband had no man us over the slave wife nor any
poles las over the issue. It had the effect of creating blood ties
among the issue. The rules regarding prohibited degrees were
observed. The husband could be separated from the wife by the
master of the slave and even the union could be dissolved by
the master at his will. The children of such union followed the
condition of of their parents and were the property of their
masters.
18. Essential conditions of justiae nuptiae :—The

following conditions had to be satisfied for a marriage to
amount to justiae rwptae : ( 1) Each party must have
connubum which was a capacity to contract a legally valid
marriage. (2) The parties must not be near relations either by
natural or artificial ties. Those in the direct line of descent
from a common ancestor could not contract jusUae nuptiae
among themselves. Persons in loco parentis ( in the position
of parents) could not enter into marriage with those in loco
JIUI (in the position of children). By a special law marriage
was not allowed between the Governor of a country and the
members of a community under his charge. (3) Each party
must give consent to the marriage. (4) If either party were
aUertijurs, the consent of the paterfamilias was necessary.
(5) Each party must have attained puberty. Puberty was
determined at 14 years of age for males and 12 years for
females, when they were quite competent to enter into marital
relationship. (6) Marriage was disallowed in early law
between the patricians and the plebeians. A senator might not
marry a freed woman or an actress.
19. Kinds of marriage with manus (how manus was

created) :—Manus was acquired in ancient law by one or
other of the following modes of marriage recognised as just ae
nuptiae :—(fl Confarreat(on.—It was a religious ceremony
performed in the presence of the chief priests of the state
religion and accompanied by usages which were of great
antiquity, Originally only patricians could avail themselves
of this form of marriage. A cake was offered to the Jupiter and
ecertain sacramental words were spoken before ten witnesses
representing perhaps the ten curiae, the Pont[ex mczximus
(chief priest) and the priest of Jupiter. The Pontfex maximus
and the priest of Jupiter assisted in the ceremony.
(2) Cue rnpto.—It was the civil marriage. This form of
marriage was meant for the plebeians and existing side by
side with the confarreatian form of marriage. It was a sort of
symbolic sale of the wife to the husband. per aes et libram, in

presence of five witnesses and the balance holder.
(3). Usus.—The third form in which manus was created was
us us, that is a sort of usucapto or prescriptio. Usus was the
acquisition of a wife by possession and bore the same relation
to coemptio as usucapto to a mancipatton. A Roman citizen
who bought some object of property and got possession of it,
but not ownership, because he neglected to go through the
forms prescribed by jus ctvile, might be owners by usucapio
i.e. lapse of time. Similarly if a man lived for one year with a
woman whom he treated as his wife but whom he had not
married by cortferreatio or coemption, then at the end of that
period the man acquired ownership of the woman as his wife.
She passed herself in manum and the marriage was treated as
justiae nuptiae. If she was delivered to the husband without
proper forms, she did not fall under his manus until the usula
period of usucaplo or prescriptio had passed. A title by
prescriptio or usucapto could not be acquired unless
possession was continuous. Accordingly if a wife absented
herself and returned to her father's house before the period of
prescriptto had run out the prescrtptio was broken. So it was
fixed that if she absented herself for three nights in
succession it prevented the husband from acquiring
possession by prescription. The discontinuity in the
possession was called usurpation trinocti and man us could
not be acquired in such a case.
20. Effects of marriage :—In marriage with mantis the

wife ceased to be a member of her old family and became a
member of her husband's agnatic family. If the husband was
under the potestas of the paterfamilias, she would fall under
him. If the husband was suijurts or himself a paterfamilias,
she would go under his manus (control). In other words she
suffered a complete change of legal status of the kind which
the Romans called the capitis cleminutio. She ceased to be one
of the heirs of her paterfamilias, and if he dies intestate she
will not be entitled to share with her brothers and sisters. As

between the spouses the relationship of father and daughter
was established. The husband acquired the same rights over
her as a pater acquired over a fihiusfamilias. The husband or
the paterfamilias (in case the husband was altentjuris) had
the complete dominion over the person and the property of
the wife. Whatever fortune she had at the time of marriage or
acquired afterwards went to the husband or to his
paterfamthas. But she acquired the important right to inherit
the property of her husband and she was entitled to a
daughters share in his property at his death. The husband
also could inherit from the wife. All the children born of a
lawful marriage fell under the paternal power of the husband.
As regards the effect on person of spouses, the wife followed
the domicile of the husband and was entitled to protection
and support from him. She took his name and rank, and
retained them even after his death, so long as she did not enter
into a second marriage, The husband was not liable for
obligations contracted by the wife before the marriage. The
wife also was not originally liable for such obligations but the'
praetor allowed process and passed judgement against her for
satisfaction of the obligations out of the property which her
husband took through her on marriage.
In marriage without mantis her agnatic relationship

remained unchanged and she did not pass out of her original
family, but retained her position as one of the heirs of her
paterfamilias. After the disappearance of the tutela perpetua
the woman, although married had a complete legal status of
her own, and could acquire property, enter into obligations
and bring actions just as a man could. Having this
independent persona, her property was necessarily her
separate property and her husband had no right to it apart
from private management. Her paterfamilias, if he liked,
could take her away from her husband and put and end to the
marriage. If she had no pateifamilias when she married, or if
her paterfamilias died during the marriage, she would remain
under the tutor of her agnates. If she had any property at the
time of the marriage it did not pass to the husband who had no
rights to her property which remained her own. Whatever she
acquired during the marriage belonged to herself and her
husband had no control even over the administration of her
separate property. She acquired no rights of succession to her
husband though at a later period the praetor gave her a right
to succeed to the husbands estate if he left no relations. There
was no bond of legal duty between the husband and the wife.
The wife could not compel him to maintain her. The children
were under their fathers power and enjoyed rights of
inheritance from him. But there was no right of succession as
between herself and her own children before the law as
modified by sc. Orfitianum (178 A.D.) which gave the children
a right to succeed to her estate in preference to all agnates.
21. Dos :—Dos was the property made over to the husband
by or on behalf of the wife as a kind of contribution towards
the expenses of the new household. It was considered to be the
duty of a father to maintain his daughter notwithstanding
that she was married. But as it would have been practically
impossible to perform this duty day by day and week by week
when the daughter lived with her husband, the father once for
all gave a marriage portion of dowry for his daughter in
proportion to his means. Dos was usually the subject of
prenuptial contract; but it might be commenced or increased
after the marriage. However, the constitution of dos was not
essential to the validity of marriage. The dos in no way
resembles our dower or dowry.
Kinds of dos.—There were three kinds of dos viz.,

(1) dos profecticia.—When the marriage portion was
provided by the father or other paternal ancestor,
who were under a legal duty to the woman to provide
dowry, it was called dos profecticia.
(2) Dos adventtcta.—When the marriage portion was

given by the wife from her own property, or by any
third person, it was called dos adventicia.
(3) Dos recepticia.—When the marriage portion was
given by a third party on the understanding that it
was to be returned to him on the dissolution of the
marriage, it was called dos recepticia.
Constitution of dos—A dos might be constituted in one of
the three ways: (1) It might be handed over to the husband at
the time the agreement was made. (2) The bride or her paternal
ascendant might bind themselves to give. (3) It might simply
rest on a solemn promise.
Management of dos.—The husband had the sole
management of the dos and he enjoyed its usufruct and
income during the continuance of the marriage. He had no
right to interfere with the corpus. Though the husband was
owner, he was under a liability to account and after the
passing of lex Julia de adulteriis (18 B.C) he could neither sell
the immovable property in Italy forming part of the dos
without his wife's consent, nor mortgage it even with her
consent. The provision of this law was extended by Justinian
who prohibited any kind of alienation of the immovable part
of the dos even with her consent, whether the property was
situated in Italy or in the province.
Dos on the termination of the marriage.—If the dos was
recepticia, i.e. if it was given to the husband by a verbal
contract or stipulation on condition for its return, the donor
or his heirs could compel its restoration on the termination
of the marriage. If there had been no such stipulation the
husband, according to the strict view of the civil law, was
entitled to keep the whole of the dos for himself, though no
doubt the wife had a moral claim which was often or usually
recognised for its return. About the year 200 B.C., a new action
appeared which was called the act Eo ret uxoriae, which lay for
the recovery of the dos at the end of marriage, even though
there was no express agreement for its return. In the time of
Justinian the husband was bound to restore the dowry except
when the wife was divorced for misconduct. He could only
claim a rebate which was actually necessary for its
preservation. He was obliged to make compensation for any
movable property which he alienated or for any damage
which had been done to the dos through his negligence. As a
further protection, Justinian gave the wife a tacita hypotheca
(implied mortgage) over her husband's whole estate. In
Justinian's time if the wife survived her husband, or there was
a divorce for any reason save her own misconduct, the wife
was entitled to have the dowry returned in the absence of some
express agreement to the contrary. If the wife died before her
husband, her heir might, by an action ex stipulcttu recover dos
advent tca, but not necessarily the dos profecticia because if a
father or other paternal ascendant had given such a dowry
and survived the wife, he had a right to its return to the
exclusion of her heir.
Parapherna.—The part of the property which was not
brought into settlement on marriage as part of the dos was
known as parapherna. The wife remained its proprietor, and
the husband had no right over it beyond those which she
might relinquish in his favour.
22. The donatio propter nuptias :—the expression
means a donation after marriage. It was a gift on the part of
the husband as a kind equivalent to the dos. The object of
donatio propter nuptias was to secure a provision for the wife
in the event of her surviving the husband or in the event of the
marriage ending by a divorce through husband's misconduct.
The husband's ancestors were placed by statute under the
same obligation to provide donatio as the bride's ancestors
were to provide the dos. By a constitution of Justinian the
amount of the donatio had to be equal to the amount of the
dos. The actual control and management of it belonged to the
husband during the marriage. Under Justinian the husband
could not alienate the immovable part of the donatio, even

with his wife's consent and the wife was given a tacita
!iypotheca to secure it. On the termination of the marriage by
the husband's death or misconduct, the wife would get it, but if
she predeceased him, it was retained by the husband as his
own absolute property. Originally it was known as donatio
ante nuptias. As it was against the policy of Roman law to
allow gifts between husband and wife before marriage
Justinian allowed such a gift to be given and increased after
marriage and in correspondence with this, he changed the
name to donatia propter nuptias.
23. Termination of marriage :—Marriage came to an
end in the following ways :—(1) By death of either party. (2) By
either party becoming a slave or ceasing to be a citizen. (3) In
case of marriage in manum, by either party undergoing
capttts demtnLttio minima. (4) By divorce.
24. The law of divorce :—Divorce existed in Rome from
the earliest times. It did not require the sentence of a Judge
and no judicial proceedings were necessary. It was considered
a private act. Under the old law a marriage celebrated by
confarreatio could be dissolved by an equally formal act of
dffareatio i.e. another sacrifice to the Jupiter in the presence
of pontiffs. If the marriage was celebrated by coemptio or
usus, it could be dissolved by emancipating the wife i.e. by a
fictitious sale to a person who manumitted the wife. One sale
was enough to break the tie.
When marriage in manum had become obsolete, marriage
could be dissolved in two ways (a) by divorttum and (b) by
repudium. The former occurred at the will of both the parties
who could dissolve the marriage voluntarily and by mutual
consent. The latter occurred by either party giving notice to
the other. No form was necessary. A declaration of intention
to dissolve the marriage was sufficient, expressions like
"manage your own affairs," keep your own things to yourself,"
etc., were sufficient to break the tie. But the lex Julia de
adulteri is (18 B.C.) required a written bill of divorce to be
delivered in the presence of seven Roman citizens above the
age of puberty as witnesses, though eventually delivery was
not necessary.
Divorce was at first not abused, but at the close of the
Republic and the commencement of the Empire, when the
manners of men were corrupted, there was a gross abuse of
divorce. Marriage was thoughtlessly entered upon and
dissolved at pleasure. To check this deplorable corruption,
laws were passed inflicting severe penalties on those whose
bad conduct led to divorce and there were Imperial
constitutions which enumerated the just causes of divorce and
gave the innocent party some claims over the property of the
other. Under Justinian divorce without just cause was not
allowed. He penalised for groundless divorce by forfeiture of
property. If the wife divorced the husband without just cause
she could not claim her dos; on the other hand if the husband
divorced the wife without just cause he had to forfeit donatfo
propter nuptias which would go to his wife. Yet,
notwithstanding these penal enactment's, divorce was in all
cases left entirely to the free will of the parties.
Remarriage after dissolution—When the marriage was
dissolved by the death of the husband or by divorce, the wife
was bound to wait a year before entering into a new marriage;
in case, of violation of this rule she incurred infamy besides
other penalties.
Custody of children. —If the divorce was owing to the fault

of the father, the mother was entitled to the custody of the
children, and the father was obliged to maintain them. If the
mother was in the wrong, the father took charge of the
children. If neither party was in fault and the dissolution of
marriage resulted from mutual consent, the father took the
custody of the boys, and mother of the girls.
Roman-8
25. Legitimation :—Legitimation was a method of

introducing into the family the children who were born out of
wedlock. Under the Roman law a child born out of lawful
wedlock could be made legitimate in the following ways
(1) Oblatio curiae.—Theodosius and Valentinian provided
that citizens might legitimate their natural children by
making them members of the curiae (i.e. the order from which
magistrates were chosen in the provincial towns). As the
duties of a decurio were very onerous and accompanied with
risk, natural son who undertook the office was thereby
rendered legitimate. A natural daughter who married a
decurio had the same privilege. A child made legitimate by
oblatio curiae acquired no right of succession to any member
of the family except his own father.
(2) Per subsequerts rnatrimonium.—Legitimation by the
subsequent marriage of the parents originated from a
constitution of Constantine. He provided that persons living
in concubinage could legitimate their children by subsequent
marriage, provided (a) the mother was ingenua (free born) and
(b) the father had no children by a lawful wife. The object of
this law was to encourage persons living in concubinage to
enter into marriage. Justinian extended the law of
Constantine by removing the above restrictions. In the law of
Justinian three conditions were necessary to make the
children legitmate, viz., (a) The marriage must have been
possible when the child was conceived and therefore the
children of an incestuous marriage, or born in adultery or
born from the union of a citizen and a slave would not have
their position improved by a subsequent marriage between
the parties. (b) There must be a proper marriage settlement, (c)
The child must not object. The reason was that, being born out
of wedlock, the child was-suijuris and was under nobody's
control. Therefore he ought not to be brought under potesto.s
and made alieni juris against his will.
The privilege of legitimation by the subsequent marriage

of the parents was strictly confined to the children of a
concubine, and did not extend to bastards.
(3) By Imperial rescript.—Justinian provided that if
legitimation per sitbsequens matrimonium was impossible
because the mother was dead or already married to some
person, and if there was no legitimate child, the natural
children might by a rescript be put in the same legal position
as if born legitimate. The rescript was issued either on the
application of the father or after his death.
26. Adoption :—Among the Romans the relation of
father and child arose either from marriage or adoption.
Adoption was common at Rome and was considered to be an
useful institution. Many powerful patrician families on the
verge of extinction by the failure of children were revived by
adoption. But it was always considered more honourable to be
the actual father of children born in lawful marriage than to
have recourse to fictitious paternity. There were two kinds of
adoption, viz., (1) Adoption and (2) Arrogation or adrogation.
Adoption.—Adoption was the ceremony by which a person
under one potestas was transferred to another potestas. In the
process of adoption two acts were necessary: (i) The extinction
of agnatic tie in relation to the original family and (ii) the
creation of a new agnatic tie in relation to the acquired
family. The original agnatic tie was destroyed by triple sale as
provided in the Twelve Tables that if the father sold his son
three times, the son should be free from pat na potestas. The
second act i.e. the creation of a new agnatic tie was created by
injure cess(o (fictitious law-suit). The process of adoption was
as follows :—The father sold his son per aes et libram to a
nominal purchaser who resold the son to the father. The sale
by the father was followed by a resale by the purchaser. In this
way there were three sales by the father and two resales by the
purchaser. After the third sale the paternal power was
extinguished, and the first act of adoption was complete. But
the son did not forthwith fall under the power of his adoptive
father. The second act was necessary for establishing the new
potestas. It was done by a fictitious law suit (injure cessto).
The adoptive father declared before the praetor that the
adoptee was his own son, the natural father did not object and
a judgement was given against the natural father and the son
fell under the power of the adoptive father. At the time of
Justinian adoption was made in a much simpler way. All that
was necessary to make a valid adoption was that the real
father, the adoptive father and the person to be adopted
should go before the magistrate and make a declaration of
their intention which was entered in the records of the court.
According to the rigour of the ancient law, a son under
power might be given in adoption without his consent, but in
later times the son had a right to object and he could not be
given in adoption without his consent.
Conditions of adoption.—Every man, whether married or
not, could adopt provided he had the capacity to contract
marriage. In ancient times this privilege was denied to
women, because they could have no one under their power. But
the law was altered about the period of Diocletian, and women
were allowed to adopt in order to console them for the loss of
their children, but they could not acquire patriapotestas over
them, but the adoptee acquired rights of succession from the
adoptive mother. No person could adopt one who was older
than himself, because adoption should imitate nature and it
seemed unnatural that a son should be older than his father.
It was, therefore, required that the adopter should be older
than the person adopted by 18 years which was the age of full
puberty. A person having no child could adopt a grandson but
one having a son was not permitted to adopt a grandson
without the sons consent.
Effects of adoption.—Under the Roman law adoption
created the relation of father and son. for ail practical
purposes, as if the adopted son was born of the blood of the
adoptive father in lawful marriage. Adoption severed the
agnatic tie completely. The adopted child left his original
family and passed into the new family under the paternal
power of his new father. An adopted child added to his own
name that of his adopter, modifying it by the termination
ianus, e.g. Scipio adopted by Emilus was called Scipio
Emilianus. lie lost all rights of intestate succession to the
natural father but acquired a new right of succession to the
adoptive father. But in practice serious inconveniences arose
when he was emancipated by the adoptive father after
adoption. In that case he could neither inherit from his
natural father nor from his adoptive father. To obviate this
difficulty, Justinian made a distinction between (1) adopto
plena (adoption by an ascendant) and (2) adoptio minus plena
(adoption by a stranger). In adoptto plena i.e. when adoption
was made by an ascendant such as grandfather, the effect was
the same as under the old law. The son passed under the
potestas of the adoptive father. In such a case it was presumed
that affection springing from the ties of blood would refrain
him from emancipating the adopted child, so as to prejudice
his rights, of succession. In adoptio minus plena i.e. when
adoption was made by a stranger, there was no dissolution of
the paternal power and the adoptive father did not acqutre
that power. The adopted child, as a fact, passed into the
physical control of the person adopting, but as a matter of law
remained a member of his old agnatic family. The child also
acquired the right of intestate succession to the person
making the adoption.
27. Arrogation. —Arrogation took place when a person
who was suijw-is became aUenjuris by placing himself
under the potestas of another citizen. Since it involved the
extinction of a Roman family an Act of the supreme
legislature was necessary. The proceedings took place
originally in the comitia calata (the comitia curiata was
called comitia calata when it met for special purposes like
arrogation). After an enquiry into the expediency of the act

had been made by the pontiffs, the person making the
arrogation, the person to be arrogated and the citizens present
were asked if they respectively consented to the arrogation. If
they did, an Act was passed making the person arrogated a
member of his new family and putting an end to his old
family. He passed into the potestas of the person arrogating
him, to whom he stood as a fihiusfamilias and lost his ancient
religious rites (sacra). His descendants, if any, and the whole
of his property passed with him into the new family. With
regard to obligations owed by the person arrogated there was a
distinction. If the obligations were due from him as heir of
some third person deceased, they passed to and bound the
person making the arrogation. If it was merely personal, they
became extinguished altogether at strict law. Later the praetor
gave the creditors the right to be satisfied out of the property
which, but for the arrogation, would have belonged to the
person arrogated. It was not until Diocletian that the form
changed, when the act of the cornitia was substituted by a
rescript of the Emperor. This form continued down to, and in
the time, of, Justinian himself. The only change made by that
Emperor was that he reduced the interest of the person
making the arrogation to a life interest (usufruct) merely in
the porperty of the person arrogated.
Originally, since the act took place in the comitia,

arrogation could only be effected at Rome. When the vote of
the comitia was replaced by Imperial rescript, arrogation
became possible in the provinces. A woman could neither
arrogate nor be arrogated. Under Diocletian it was recognised
that women could be arrogated. An impubes (infant) could not
be arrogated because a man might, by arrogating a boy one day
and emancipating him on the next day, acquire and retain all
his property without incurring any obligation in respect of
him. Under Antoninus Pius an imp ubes could be arrogated
after satisfying the following conditions
(1) Liberty was reserved for the person arrogated to put

an end to the arrogation, if he so wished on attaining
the age of 14.
(2) The arrogator gave security to restore all the
property to the boy if he'emancipated him with good
cause before the age of 14, or if the boy died under
that age.
(3) If he disinherited the boy or emancipated him under
the age of 14 without good cause, he would restore not
only the boy's own property, but give him one-fourth
of his own property.
Effect of arrogation.—The effect of arrogation may be
considered with reference to (1) the person and (2) property of
the an-ogatus. The arrogatus passed under the potestas of the
arrogator and his descendants, if any, also passed with him
under the same potestas. As a compensation for the loss of his
rights he acquired the rights of intestate succession to the
property of the arrogator. In civil law the property of the
arrogatus in consequence of capitis demtnutio minima
became merged into the property of the arrogator. Therefore if
after arrogation he was emancipated for sufficient reason he
did not get back his own property. Moreover, the debts due to
the arrogatus passed to the arrogator who could sue for the
debts but the debts due by the arrogatus ceased to exist after
arrogation. The praetor, however modified this rule and gave
the creditors the right to satisfy themselves out of the
property of the an-ogatus.
28. Comparison between adoption and arrogation
:—Adoption and arrogation are alike in the following respects
(1) In each case, except in adoptio minus plena

(adoption by strangers) of Justinian, a person
changed his family.
(2) On the principle of adoptio naturam irnitatur
(adoption to imitate nature), the arrogator or adopter
had to be at least 18 years older than the person

adopted or arrogated and they could not adopt or
arrogate if this condition was unfulfilled.
(3) A woman could neither adopt nor arrogate; later she
was allowed to "quasi-adopt' as a solace for the loss
of her children but she did not thereby gain patria
poLes tas.
Contrast between adoption and arrogation.—The
following are the differences in the two institutions :-
(1) In adoption a person alienijuris changed his family
while in arrogation a person suijuris changed his
family.
(2) In adoption the person adopted passed into the
potestas of the adopter while in arrogation not only
the person arrogated but his descendants if any, also
passed into the potestas of the arrogator.
(3) So long as arrogation was 'populi auctoritate' i.e.
made in comitia calata, it could only take place at
Rome, where as adoption could take place, anywhere
within the country.
(4) Women could always be adopted, while they could
not be arrogated until the time of Diocletian.
(5) An impubes could always be adopted. but could not be
arrogated until it was made possible by Antoninus
Pius.
29. Termination of patria potestas :—Patria potestas
terminated in the following ways :—(1) By death of the father
or son. (2) By adoption. In Justinian's time adoption plena
would terminate patria potestas of the natural father. (3) By
marriage in manum in case of females. (4) By the child
attaining signal public distinction e.g. when he became a
bishop or prefect. (5) A father exposing his children or giving
his daughter in prostitution, lost his rights over them. (6) By
either father or child becoming a slave or losing citizenship.
(7) If the father gave himself in arrogation to another citizen,

the ar-rogator acquired pat na potestas over the children and
the father lost potestas over them. (8) When the child was sold
as a slave, the pat na pot est as over him was lost. In the case of
a son three sales were necessary. (9) By emancipation.
30. Law of emancipation :—Emancipation in relation
to a son means the freeing of the son by the father from his
potestas. The object of emancipation was to put an end to the
agnatic tie. In its ancient form it had to be done by three sales
followed by a manumission. The first part of the ceremony of
emancipation was exactly like that of an adoption. The son
was sold according to the Twelve Tables by means of a
fictitious mancipation for three times to a stranger and
followed by a manumission by uindicta. In case of a daughter
or grandson, one sale was enough to destroy patnta potes Las.
Emancipation could be effected by the puchaser simply by
manumitting the child (by uindicta) who was 'servi loco' (in
the position of slave) to him, after the sale by the father. But
this was not the usual course, because in such a case the
purchaser would acquire a right of succession to the child
which properly belonged to the real father. The usual course,
therefore, was that the purchaser would resell the son to the
father, who would himself manumit him by vindicta and the
father as "pareri manumissor" would acquire the right of
succession from the son.
Emperor Anastasius abolished this round about process
and allowed emancipation to be effected by Imperial rescript.
This course was usually adopted when the son was away from
home and it was not possible to go through the ordinary
ceremony. Finally under Justinian, emancipation was
effected by a simple declaration made by the father and the
son in the presence of the magistrate. The son's consent was
necessary in the proceeding.
Effect of emancipation.—Emancipation completely cut off
a son from the family. The patria potestas was destroyed and
it gave him freedom. The emancipated son became suijuris.

He left his original family and lost the right of agnation.
Lawful sons having no separate means to meet their demands
were entitled to get support from the father, and the sons too
were bound to maintain an indigent father. Under the old law
the son after emancipation lost his right of succession and
found himself without any property. But later in the Imperial
period the emancipated son was allowed pecuUum castrense
and quasi-castrense which were the absolute property of the
son. The praetor again gave him right of intestate succession
from the father along with the unemancipated children. The
father also succeeded to the property of the emancipated son if
he died intestate and without issue, provided that the father
was his patron.
Rights and duties of emancipated son.—The rights and
duties of an emancipated son was identical with tht of a
freedman with the exception that the father could exact no
promise of work from the son. The emancipated son could not
sue his father, except in a fit case and with the leave of the
praetor.
31. Persons in mancipii cansa or servoruin loco (in
the position of slaves) :—The free persons in the position of
slaves were called persons in mancipii causa. A free person
might become in mancipii causa in the following ways (1)
When under the ancient law, his paterfamilias sold him into
slavery at Rome, he was reduced to this status. If he was sold
across the Tiber he would be a slave proper. The status in
mandpir causa was peculiar to Rome. (2) By being fictitiously
sold as a slave during the process of adoption or
emancipation. (3) When a son was given in noxal surrender in
satisfaction of debt by his paterfarnllias. (4) When a woman
was sold by means of a fictitious sale by her coemptionator
e.g. as a proliminary to divorce.
Differences between a slave proper and a person in
rnancipii causa were—(1) That the person in mancipli causa
retained full civic rights and the jus commercü in a latent

form. (2) On being freed he became "ingenuus" and not
"libertinus." (3) Neither the tex Aelia Sentta nor the tex FuJIa
Caninia restricted the manumission of such a person. (4) In
the time of Gaius a master who subjected a person in mancipii
causa to insulting treatment was liable to action for injury.
Similarity between a person in mancipU' causa and a
slave.—(1) He was incapable of entering into legal obligations.
(2) His acquisitions accrued to his master. (3) His children
were probably in ancient times also quasi-slaves, although
the law was modified in this respect by the time of Gaius. (4)
His master could alienate him as a quasi-slave to another
either inter vivos or mortis causa. If the person in mancipi
causa was unlawfully taken away from him, he could reclaim
him by a vindicato (a real action) and in a proper case he
could bring the actiofurti (an action for theft). (5) The same
means were necessary to free him as in the case of a slave
proper.
Long before Justinian, parents lost their right to sell their
children into slavery and in his time the fictitious sales in
adoption and the like were no longer used. When Justinian
abolished the noxal surrender of free persons the status of
persons in mancipii causa entirely disappeared.
(D) Fourth division of the law of persons.
Guardianship : -
32. The law of guardianship :—A person although a
freeman, a citizen and suijuris might lack full legal capacity
to conclude juristic acts because of his extreme youth or of
lunacy. Such a person, according to law, was placed under a
guardian. Roman law recognised two kinds of guardians viz.,
(1) Tutor and (2) Curator. Again tutorship was of two kinds
(1) Tutela impuberum (guardianship for infant), and (2) Tuteta
mutierum (guardianship for woman).
33. Tutela impuberuni :—Tutela impuberum means

the guardianship for infant. Every boy or girl who was sui
juris and under the age of puberty was placed under the
guardianship of a tutor because of their immaturity of
understanding. The age of puberty was fixed at 14 years for
males and 12 years for females. A person above 14 but below
25 was an adolescent. Full age was 25 years complete for both
the sexes.
Tutela £mpuberum were of four kinds:
(1) Tutela testameritaria,
(2) Tutela legitima,
(3) Tutela jiduciaria and
(4) Tutela dativa.
(1) Thtela testamentaria (testamentary guardian).—A tutor
was appointed to a person suijuris under puberty by the will
of the paterfam Was. A grandfather could only appoint a tutor
by his will for the grandson if his father had died or
undergone capitis deminutio. If the grandson on the death of
the grandfather fell under his father's potestas there was no
need for a tutor, because the boy would not be suijurts but
alienijuris. A testator might appoint as tutor any one who
possessed testamentfactio. Since a tutorship was considered
a public office, even aJuliusfamitias was capable of holding it.
A testator might appoint his slave to be a tutor. In such case
the slave became free.
(2) Tutela tegituna (statutory tutor or tutor-at-law)..—An
impubes ( infant) to whom no tutor had been appointed by will
would usually have a leg ittmu.s or statutory tutor. The tutela
legitima was either (i) agnatorum or (ii) patronorum, or (iii)
parentum tutela.
(i) Legit(ma agnatorum tutela.—A person becoming sul
juris under the age of puberty and having no
testamentary tutor, had under the provisions of the
Twelve Tables, his nearest agnate or agnates as his
tutor leg itimus. If there were several agnates in the

same degree, they all became tutors. The reason why
these agnates were appointed tutors by the Twelve
Tables was that they would succeed as heirs to the
wards property on his death intestate and without
issue. If there were no agnates, the tutorship
originally passed, like the property to the nearest
gentiles. Later when the distinction between agnates
and cognates were abolished by Justinian both as
regards legal succession and the office of tutor-at-
law, the mother or grand-mother of the pupil was
appointed tutor-at-law, even preferably to the
agnates.
(ii) Legitima pat ronorum tutela.—If a master
manumitted a slave under the age of puberty, the
master and his children after his death became that
slave's patron and tutor legttimus. The Twelve
Tables did not expressly give such tutela to the
patron and his children but it was given by means of
the interpretation of the jurists, who held that since
the patron and his children acquired certain rights
of succession to the freedman, it was fair that the
onus of tutela should accompany the benefit.
(iii) Legitima parentum tutela.—On a like analogy, a
paterfamilias who emancipated his child or other
descendants under the age of puberty not only
acquired a right of succession but became his tutor
leg itimus.
(3) Tutela fiduciaria.—In Justinian's time, tutela
flduciaria arose when paterfamilias died after emancipating
a person in his potestas under the age of puberty. Thereupon
the unemancipated male children of the deceased became
fiduciary tutors to the emancipated person. For example A
had two sons, B and C in his potestas; he emancipated B under
puberty and became B's tutor lig(tirnus. When A died, C became
his brothers fiduciary tutor B unitl he attained 14.
(4) Tutela dativa.—In default of any other tutor, a tutor

could be appointed by the court and that appointed tutor was
called a tutor dativa. The lex Atilla gave the urban praetor and
a majority of the tribunes of the plebs the power of appointing
tutors. The lex Juliaet Titia (31 B.C.) gave a similar power to
the Governors of provinces, but appointments under those
statutes fell into disuse. In the time of Justinian the prefect of
the city of Rome, or the praetor, and the Governors in the
provinces or the magistrates, by orders of the Governors,
appointed tutors dativa.
34. The powers and functions of the tutor :—The

tutor's power extended generally over the person and property
of the pupil. His duties were three fold :-
(1) To take proper care of the person and to supervise the
education and wellbeing of the ward.
(2) To administer the ward's property to his best
advantage. The tutor was liable not merely for fraud,
but for failure to show the same amount of care as he
displayed in the conduct of his own affairs.
(3) To remove the legal incapacity of the pupil when any
juristic act had to be done. The tutor could remove
the legal incapacity of the minor by his auctoritas
(authority) which enabled him to enter into
transactions which he could not do because of his
minority. Such an authority of the tutor was called
auctoritas interpositio.
A tutor had to manage the estate of the pupil like a good
father of a family and would bee liable for loss occasioned by
bad management. He was entitled to recover debts, levy rents
and interests; he could sell the movable property in case of
necessity, but he could not sell the immovable property
without the authority of the court. It was the tutors duty to
employ the pupil's funds profitably, and being a trustee he
could not acquire any portion of the estate or do any act
connected with it for his own personal benefit. He could bring

and defend actions on behalf of the pupil or represent him in
the litigation.
Before entering upon the discharge of his duties, the tutor
was in certain cases required to give security against
misconduct Testamentary tutors were exempted from giving
security, because their honour and diligence had been
approved by the testator himself. The statutory tutors had to
give security as they came in by relationship, which was no
guarantee of honour and diligence. Tutors appointed by the
higher magistrates, after enquiry, were not burdened with
security, because only fit persons were chosen, but those
appointed by the inferior magistrates had to give security.
Under the law of Justinian the tutor had to make an
inventory of all the property of the ward on assumption of his
office.
35. The rights and liabilities of a minor under

Roman law :—The rights and liabilities of a minor in Roman
law varied during the successive stages of minority. An infant
below seven years of age could neither acquire any right nor
subject himself to any obligation, even with his tutor's
consent. But a minor above seven years could enter into
contracts without the authority of the tutor. In contracts
where there were mutual obligations arising from sales,
leases or other engagements, a person of full age who
contracted with the minor was bound by the contract, but the
minor was not bound unless the tutor had authorised it. The
rule of the Roman law was that the minor might better his
condition but could not make it worse. But this rule was
subject to equitable restrictions. The minor was not allowed
to take an undue advantage of his minority. He was compelled
to give up any advantage that he might have obtained under
the contract. Thus he could throw up a purchase, but he could
not keep what he had bought and refuse payment, or demand
back what he had sold without restoring the price. If a minor
ratified his contract on attaining majority, he was bound by

it. On the whole a contract of a minor in Roman law was
viodable, but not void.
36. Actions against the tutor :—The ward was
protected against possible abuse by the tutor of his powers in
the following ways
(1) Accusatlo suspectL—A tutor might be removed from
office for misconduct by the accusatio suspecti
mentioned in the Twelve Tables, and if dolus (fraud)
was proved, the tutor was removed from office with
infamta.
(2) Satisdatio rem pupilli salvam fore (Security for the
safety of the pupil and his property).—On entry into
office and agnatic tutor and a tutor appointed by an
inferior magistrate had to give security coupled with
a guarantee by three persons for the safety of the
pupil and his property.
(3) Action on quasi-contract.—If the tutor in the
management of the ward's property failed to show
proper diligentia, he was liable in damages under
quasi-contract in which he stood to wards the pupil.
(4) Actio de rationtbus distraheridis.—If the tutor
converted the ward's property to his own use, the
ward had the acto ratiortibus distrahends which
provided to pay double damages. This action lay for
actual embezzlement of the ward's property.
(5) Act(o tutela threcta.—At the end of the guardianship
the pupil could compel his tutor to render an account
and to hand over his estate under this action.
(6) Action for alienation.—The tutor was prohibited,
from alienating the property of the pupil without the
leave of the magistrate.
(7) Tacita hypotheca.—By a constitution of Constantine
the ward was given a statutory mortgage (tacita
!iypotheca) over the tutors property in respect of any

claims the ward might have against him.
(8) Actio subs idiaria.—Lastly in addition to his remedy
against his tutor, a pupil might bring a subsidiary
action for damage against a magistrate who had
wholly omitted or failed to take sufficient security
from the tutor on appointment.
37. Who could be a tutor : —No one could fill the office
of tutela except a Roman citizen of full age of twenty five.
Since tutela was a public office, a fiuusfamitias could be a
tutor. As a general rule, females could not be tutors but later
an exception was made in favour of mother and grandmother
of the pupil.
Excuse for tutela :—The tutela was a burden imposed on
Roman citizens. People were generally anxious not to have
this burden put on them. A tutor was bound to serve unless he
could prove a ground of excuse. The grounds were numerous.
The following persons were exempted from tutela :-
(1) Persons holding high offices in the state, clergymen
and professors, men employed in the army or men
absent on the public service.
(2) Those who had a certain number of lawful children
still living (three at Rome, four in Italy and five in
the provinces).
(3) Those who were upwards of seventy years of age.
(4) Deaf and dumb persons.
(5) Debtors and creditors of minors were prohibited
from acting as their tutors or curators.
(6) Poverty or illness was also good ground of excuse.
(7) Three burdens of tutela at one and the same time.
38. Termination of tutela impuberum :—The tuteta
ended in the following circumstances :-
(1) By the pupil attaining puberty.
Roman-9
(2) By the death of the pupil or tutor.

(3) By the removal of the tutor from office for
misconduct or unfitness.
(4) By the retirement of the tutor from office. But a
specific ground recognised by law had to be adduced
e. g. being over seventy or ill health. These were good
grounds for refusing a tutorship abinitio and for
retirement.
(5) In the case of a tutor appointed until a condition was
accomplished or for a fixed period, the fulfilment of
the condition or the expiration of the period brought
his tutorship to an end.
(6) By the pupil suffering from any kind of cap itis
deminutio.
(7) By the tutor suffering capitis deminutio maxima or
media, or in the case of the legitimus tutor, even
capitis deminutio minima.
The reason was that capitis dem(nutio minima meant the
break of the agnatic tie, and on this the legitima Lutela
depended.
39. Tutela mulierum (guardianship for women) :-
The tutela perpetua mulierum did not exist in the law of
Justinian. Till the time of Diocletian a woman was
throughout her life under the guardian of her agnates.The
theory of the old law was that a woman was never wholly
independent. She was either aUenijuris (dependent) under the
poteslas of her ancestor before marriage, or in manum,
(control) to her husband or the head of his family during her
marriage, or if she was su(juris or became a widow she was
placed under a tutor to protect her. Without the tutors consent
she could alienate her res nec mancipi and enter into any
obligation by which her condition was improved. She could
lend and recover money. If her debtor paid her money, she
could give a valid receipt, but if she gave a release
(acceptllatto) without receiving money, her acts had no effect.

The authority of her tutor was necessary in certain cases e.g.
in case of alienation of res martcipi, manumission of slave,
making a will, acceptance of inheritance, bringing of leg is
action (legal actions), etc. Galus tells us that women of full age
could manage their own 'affairs and the tutors authority was
merely formal in some cases. By the time of Galus the tutela of
women of full age became less important. By the famous lex
Papia Pappoea a free woman who had three children and a
freed woman who had four children escaped tutelage. This
privilege was called the jus ilberorum. The guardianship of
women disappeared when Theodosius and Honorius granted
jus ltberorum to all the women of the Empire. Lex Claudia
(47A. D) abolished the agnatic tutelage of women.
40. Curator :—Curators were appointed to manage the
property and protect the interest of the following four kinds of
persons :-
(1) furiosi (mad men),
(2) prodigals (spendthrifts),
(3) cura minorts (adolescents) i.e. persons of either sex
above the age of puberty but below the age of twenty
five,
(4) deaf and dumb persons.
Persons competent for the office of tutor might be
appointed to work as curators. But the mother and
grandmother though they might be tutors, were not qualified
to act as curators to their children or grand-children. The
tutor of a pupil on the expiry of the tutorship was not bound to
be the curator of the same person. A father might name a
curator to his children in his testament but it required
confirmation by the magistrate. If no one was named in the
testament, the magistrate appointed the curator having
regard to the claims of the nearest relations.
(1) Cura of fariosL—A furtosus is a lunatic. The Twelve
Tables placed such persons under the care of their nearest
agnates and if there were no agnates, under the cura of their

gentiles. The curator had the custody of the person as well as
the property of the lunatic. As the lunatic was incapable of
giving his consent, the curator transacted all business in his
own name. In his lucid intervals the curator ceased to act but
on relapse the cura survived. The praetor extended a similar
cura to other cases of mental desease or incapacity and to
some forms of physical disorder. For maladministration an
acto negotiorum gestorum lay against the curator.
(2) Cura for prodigals.—A prod (gi is a spendthrift person.
The Twelve Tables placed such a person under cura, so that he
could not waste the property received on intestacy. After a
preliminary enquiry by the magistrate, the prodigi was
prohibited from the management of his affairs. The
magistrate appointed a curator for him on the petition of his
relatives. He administered all the affairs. Usually one of his
relatives was appointed in the post. The remedy for
maladministration by the curator was an actio negotiorum
gestorum.
(3) Cura rninoris (adolescents).—The adolescent were su(
juris who attained puberty but they being under twenty five
were regarded as still entitled to protection. In early law there
was no provision to place them under guardians but later such
a provision was made. According to civil law they had full
legal capacity to conclude juristic act without the consensus of
curator. Even down to the time of Justinian the law did not
require them to have a curator except in a law suit. When the
minor was involved in a law suit, a curator ad (item (for the
suit) was appointed by the judge. In fact, however, they had
curators to look after their interests by reason of the lex
P(aetoria. This law provided that any person who would
comit fraud or exercise undue influence against persons under
twenty five would be subjected to criminal prosecution and
later an exceptio or equitable plea was allowed as a defence by
the statute (exceptio legis plaetoriae) which enabled a minor
to defend with success an action to enforce a transaction into

which the minor had entered through the undue influence of
the other party. The praetor also introduced a new machinery
known as restituUo in irttegrurrt by which he allowed
transactions to be set aside by minors merely on the ground of
minority, provided an application for setting aside the
transaction was made within one year from the cause of
action. The tradesmen naturally became unwilling to enter
into any dealings with such 'favourites of the law' unless they
were represented by some elder person, whose consensus or
approval was an absolute protection to the tradesmen and a
complete answer to any subsequent charge. For these reasons,
most minors had curators who were forced upon them if they
wished to enter into commercial relations. Marcus Aurelius
enacted that a minor might on mere application to the
magistrate obtain a permanent curator of his property. The
curator served till the minor attained twenty five.
(4) Cura for dumb and other persons.—By the time of
Justinian the following classes of persons were able to obtain
a curator on application to the court, for some infirmity
peculiar to themselves :-
(i) Deaf,
(ii) dumb,
(iii) persons of weak mind,
(iv) persons subject to incurable malady, and
(v) idiots.
41. Comparison between tutor and curator :—The
two institutions had the following points of similarity in
Justinian's time :-
(1) Tutors and curators were appointed by the same
magistrates.
(2) Both were obliged to take an inventory on entering
into office.
(3) Both were bound to accept and continue in office

unless some good ground of excuse could be shown.
(4) Like a tutor, a curator had to give security in certain
cases e.g. a curator legitimus, but not one appointed
after proper inquiry.
(5) Both were liable to account for wrong doing or
negligence.
(6) Both might be removed for misconduct by the
accusatio suspecti.
(7) A curator was unable, without the leave of the
magistrate, to alienate the ward's property of any
considerable value, and his own property was subject
to a statutory mortgage inthe same manner as in the
case of a tutor.
Contrast between tutor and curator.—The two institutions
differed in the following :-
(1) The tutors were appointed for impubes (infants) upto
the age of puberty, whereas the curators were
appointed for minors upto the age of 25.
(2) The tutors removed the pupil's legal incapacity by
auctoritatis interpositio when any juristic act had to
be done, whereas the curators had no such
auctor(tatis interpositio.
(3) The tutor had the custody of both the person and the
property of the minor whereas the curator at most
was concerned with the wards proprietary rights,
but in case of a lunatic both his person and property
were placed under the charge of a curator.
(4) A tutor could be appointed by testament but a curator
could never validly be appointed by testament. If a
curator was appointed by a testament, it required
confirmation by the magistrate.
(5) A mother or a grandmother could bes a tutor, but not
a curator.
42. Restitutio in integram :—This was the technical

name of the discretionary power exercised by the praetor. In
exercise of this power he would, on the application of the
aggrieved party, set aside a transaction on the ground of
minority, fraud (dolus), duress (metus), mistake or absence
and would place the party in the position in which he would
have been if the transaction had not been carried out.

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Roman Law by L. Kabir - Full Book

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CHAPTER—Vm

MAGISTRATES AND JUDGES

in equal number, from each of the 35 tribes making in all 105

and the same objection applied to the subordinate officers

condition that a petition might be made to the prince. The

Under the prefect, vicarii, invested with judicial powers,

was necessary that the object in dispute must be brought into

(b) Judici.s postulatio.—Of the legs actio per jud(cis

(d) Mantis injectio. Marius injectio (seizure of the

satisfaction of his claim, as authorised by the Twelve Tables.

adequate expansion. In theory no right could be enforced by a

(B) The formulary system.—The system of legLs actio

property among the various parties to the suit. When a process

(6) Rep licatio—A repUcatio was a clause which might be

The distinguishing feature of the extraordinary procedure

Summons.—In the first place, it was not necessary for the

which a person could obtain relief was by the intercessio

action proceedings injure terminated when the form or the

issued by the praetor limited the power of the judge to the

the formula in the determination of suits. This action was

(3) Interdicts for recovering possession were :-

this method avoided infamy and was freed from

(c) Criminal jurisdiction of the comitia.—There were

(d) Criminal jurisdiction of commissioners

The prefect of the city usurped many of the duties which

Extraordinary public crimes.—Some crimes were called

15. When, how and under what circumstances was

44. Shortly explain the law of manumission.

79. What do you understand by DOS, and Donatio proper

113. In what warious ways could traditio be effected?

143. "The horror of intestacy led the Romans to dispose of

160. How were legacies classified in the time of Gaius?

175. Classify the different varieties of contract.

208. What were legis actiones? What were their defects?

Maneipi Nee mancipi Fungibles Commcrcium Extra-Cummercium

Communes Publicac Universitatis Res-Nullius

Saci-ac Religiosac Sanctae

3. Dominium (ownership):—Ownership constitutes a

Provincial lands (solum provinciale) were not susceptible

it was derived from the jus gentium as distinguished from

4. Possession :—The ownership and possession may be

has the actual possession of it as well. But if the actual

Roman law distinguishes detentio and possession. In

(A) Natural mode :—A natural mode is sometines called

regain their liberty they can be acquired by

(iii) Alveus derelictus.—If a river forsakes its old course

owners of the materials are deprived of any share in

fruit or offspring as dornnus (owner). Not only the owner but

(3) The thing must not be res extra commerdum.

(3) Usucapio :—It was a means of acquiring dorntnium

to get the benefit of usucapio was known in classical

definite period. In the earliest period of Roman law the period

(I) Usucapo was introduced by the Twelve Tables, while

Usurpatio (interruption) and its effects :-

any one on his behalf on condition that it should be his

The lex Cincia (204 B.C.) prohibited all donations beyond

share which he should receive. Adjudicatto was, therefore, a

(1) Occupatio (1) Martcipatio.

6. Jura in re aliena :—Ownership gives innumerable

(A) Servitude :—A servitude is a right of an owner of an

A servitued may be positive or negative. If it is a positive

wall. The wall is ruinous, A is bound to repair. From the

Praedial servitude :—A praedial servitude occurred