Elements of Roman Private Law

Module: Property Law

Section 1: res mancipi/res nec mancipi
● Res mancipi v Res nec mancipi
○ Res mancipi → land, homes, and cattle (aqueducts)
■ Only by very formal transactions like mancipatio or the in iure cessio
(could ownership over the res mancipi be transferred
○ Res nec mancipi → could be transferred by entirely formless traditio
Section 2 - Possession
2.1 The Roman concept of possessio
● It is the factual detention of an object which is recognized by the law
○ Possessor is the person whose physical control over an object is sanctioned by
the law, regardless of the question whether that person has the right to exercise
physical detention
○ Possession is a situation of fact
2.2 Acquisition of possession corpore et animo
● 2 elements to acquire possession → body and soul (corpus et animus)
○ physical element: externally observable action that established physical
control over the thing (could be established by placing a guard next to the pile
of stones) (immovable goods → physical detention could be by taking the
keys of the apartment)
○ Intention: the will to exercise the physical detention over the object for oneself
● Relationship between possessor and holder was based on a contract like
○ Lease (locatio-conductio)
○ Mandate (mandatum)
○ Loan to use (commodatum)
○ Deposit (depositum)
● Also possible to keep things in possession solo animo → only because on intention
and without physical control
2.3 The protection of possession
● Interdict → procedure in which the praetor restores or protects possession.
○ Acquiring possession
○ Retaining Possession
○ Recovering it
○ Burden of proof lay on the non-possessor
■ Non-possesor should prove in a regularly proceeding of the rei
vindicatio (if case went to trial)
○ FIRST interdict THEN rei vindicatio
● The interdict uti possidetis protected possession of land and immovable goods and
protected the person who possesses the good at the moment of issuance of the
interdict.
Section 3 - Ownership
3.1 The Roman Concept of ownership
3.2 The nature of Roman dominium
● Dominium aka ownership → far-reaching lordship over an object and ability to do
things such as use, enjoy, and dispose of
○ Uti - to use
○ Frui - to enjoy
○ Abuti - to dispose of
3.3 Restrictions on ownership
● A spouse could not, against his wife’s will, alienate an estate in Italy that he had
received as part of a dowry (dos), even if according to ius civile he was the owner of
the land.
● Misbehaviour of the owner towards his slaves was not accepted; nor was it accepted
to leave good land waste for years in a row.
Section 4 - Acquiring Ownership and Possession
4.1 Mancipatio
● One of the oldest ways to acquire dominium (subject to stringent formalities)
● Res mancipi (land, cattle, slaves) could only be transferred via the procedure of the
mancipatio
● The main role of Mancipatio was to transfer ownership
● Requirements of validity: 5 witnesses
● Validity did not depend on the intentions or will of the parties
● It gradually lost its role as its usefulness was limited
4.2 In Iure Cessio
● Is essentially a mock trial
● Could be used for transfer of ownership of res mancipi and res nec mancipi
4.3 Traditio
● No formal requirements
● Became important following the growing contacts with foreigners as a consequence
of the expansion of Rome
● For non-citizens, the tradito was the ONLY way to obtain ownership over res nec
mancipi.
● Results may vary
○ Could give factual control over a good to someone else. The receiver obtained
factual detention of the good, the material possession, but not the possession
recognized by law.
○ Could convey possession, a factual control recognized and protracted by the
law. Example: res mancipi transferred by tradito NOT mancipatio. Buyer
acquired possession but not yet ownership
○ Could convery dominium (right to utis, frui, and abuti). Buyer is protected by
the law.
4.4 Usucapio - acquisitive prescription
● Ownership by ius civile is acquired after unditrubed possession during a period of
time
● Movables → requires A YEAR possessions for its completion
○ Post-classical times it moved to 3 years
 ● Land and houses → TWO YEARS possession
○ Post-classical → 10 years in owner and possessor lived in the same city, if not
20 years
4.5 Natural forms of acquiring ownership - Occupatio
● The claim over an object that doesn’t belong to anyone - res nullius (leads to
ownership)
● In this classification included
○ Wild Animals (taken on land, water, or air) - (if the animals escapes it ceases
to be ours)
Section 5 - Protection of Ownership
5.1 Rei Vindicatio
● The action with which the owner of a thing could claim it back from anyone else who
held the thing
○ If the “thing” was not available the owner could ask for monetary
compensation.
● Owner had burden of proof to prove that they were the owner
○ When disputng res mancipi (and if it was delivered by tradito) proof was not
immediately possible due to the absence of the required formalites)
● If the thief chooses to keep the goods and PAYS the plaintiff, they become an owner
based on usucapio. Became the owner based on the payment of compensation
5.2 Actio Publiciana
● Arose in context of exchange of res mancipi due to traditio
● Owner was only required to prove that he was on his way to become owner according
to usucapio
Section 6 - Servitudes
● Under the ius in rem → a proprietary right that involved the use of someone else's
property
6.1 Praedial Servitudes
● Established on land or buildings - the right and burden were attached to the land
● Servitude right was ATTACHED to the land not the person
○ If the owners transferred their land the servitude ran with it. Gave rights to
successive owners
● Rustic v urban
○ Refers to the purpose of the servitude
○ Building → urban
○ Rustic → all res mancipi (land, home, cattle) THEREFORE you need
mancipatio to have any servitude established
● Types of rustic praedial servitudes
○ Iter → right permitting a man to walk on land but NOT ride beast of burden
○ Actus → right to drive a beast of burden or vehicle
○ Aquae ductus → right to channel water across another’ land
● Acquae haustus → right to pump water from another land
● Ius pascendi → the right to pasture cattle
6.2 Personal Servitudes
 ● Attached to the person of the rights holder
● Could be established on movable and immovable goods
● Type of servitude
○ Usufruct → enables the right holder to use, enjoy, and extract the fruits from
the property.
■ Could harvest crops on field, became owner of offspring of the animal
they had usufruct over.
■ Usufruct extinguishes when the usufructuary dies or when fixed term
expires
● OR when they didn’t make use of their right during two years
(immovable) or one year (movable)
Module Obligations
Section 1.5 - Contractus and Pacta
● For an agreement to be a contract it had to fulfill the specified requirements of a
particular type of contract such as sale or lease.
● Classified Roman contracts into 4 categories
○ Verbal Contracts → stipulato was the most important one
○ Literal contracts → strict form of contract
○ Real contracts → implied that one party conveyed a thing to another party
○ Consensual Contracts
■ Sale (emptio venditio), Lease (locatio conductio), Mandate
(mandatum), Partnership (societas)
Section 2 - Stipulatio
● An oral contract - by answering formally to a formal question someone promises to
perform something
○ Archaic roman law where ius and fas were not separated → debtor who didn’t
comply was doomed in the eyes of the gods and community
2.1 Form
● The future creditor submitted to the future debtor a formal question whether the latter
was prepares to take on certain performance
● What brought the contract into existence was not the converging will of the parties,
only the matching of identical verbs in question and answer.
● These questions and answers implied that both parties were physically present at the
same spot
2.2 Content, strict character and enforcement of the stipulato
● Stipulato could be used
○ to bring into existence any contractual obligation
○ to make an obligation enforceable that did not match the form of the
individualized contracts
■ → With this, the Roman citizen could make any promise actionable if
they wished to do so.
● Has an abstract or strict character
 ○ From the moment the verbs of question and answer matched, parties were
bound to perform regardless of their true intention
● actio ex stipulatu → If the promiser didn’t comply, the creditor could claim
performance
○ Judge has ample discretion to decide on the extent of the performance and
calculate the compensatory amount (did not have to stick to the market value)
● Stipulatio poenae → amount of the fine parties would pay in case they didn’t comply
with what they had promised
Section 3 - Emptio-Venditio: The Contract of sale
3.1 Formation of the contract
● Only basis for the sale was the consent between purchaser and vendor on the object.
● No witnesses necessary nor mandatory to put it in writing
● Consensus → consent ; pretium → price to be paid for ; merx → object of sale
3.2 The Object of the Sale: Merx
● Could be movable and immovable goods, corporeal and incorporeal
● Buying in bulk could not happen BUT they had to use stipulatio
● Extra commercium (public buildings or sacral thing) could NOT be sold
● Some non existential things could be sold (harvest, child of a slave)
3.3 Price: Pretium
● Had to be expressed in money
● Price has to be certain and seriously intended, DOES NOT need to be just
● NO consumer protection! Citizens were completely responsible
● Laesio enormis → gives the vendor the possibility to claim in court the annulment of
the sale if he didn’t receive the full value of the object
3.4 Consent: Consensus
● The matching of the intention between the contracting parties
● It was possible there was a discrepancy between the inner intention and the expressed
intention → THEREFORE there it is null due to error
● Error in negotio → no consent on the type of business the parties are engaging in (no
contract)
● Error in corpore → no consent on the identity of the object (no contract)
● Error in nomine → there is STILL a valid contract
3.5 Transfer of Ownership
● Contract of sale DID NOT transfer the ownership of the thing sold
● Could only be transferred ownership by
○ Mancipatio
○ In iure cessio
○ Traditio
● Purchaser acquired ownership immediately through the contract of sale
3.6 Obligation of the Parties
● The actio empti and the actio venditi - Protection for the contract of sale
○ Actio empti → asked by the purchaser (could sue)
 ■ If wood that was promised to be solid is rotten and house collapses,
vendor MUST be liable for both
○ Actio venditi → asked by the vendor
■ These actions could be asked to the praetor to condemn the defendant
to do everything as required by good faith
■ Enforced the obligation of the purchaser to pay the price (handing over
the ownership of the coins)
● Obligations of the purchaser
○ Obligations consisted of
■ Paying the price (handing over to the vendor the ownership of coins)
■ Risk is placed on the buyer (object can be damaged, lost, or destroyed)
● Vendor is secure where anything has happened without fraud or
negligence on their part
● Obligations of the vendor
○ to deliver the object in such a way that the purchaser obtained its undisturbed
possession
○ Vendor was not under the obligation to make the purchaser owner of the object
(only through usucapio could they become the owner)
Section 4 - Locatio Conductio: Letting and Hiring
● Consists of three different contracts
○ Location conductio rei → hire of a thing
○ Locatio conductio operarum → contract of services
○ Locatio conductio operis → contract for work
4.1 Obligations of locator or lessor
● Core obligation → to place the object at the disposal of the lessee for the time
specified in the contract
○ must also provide the peaceful and undisturbed enjoyment of the object
○ Must make sure that the object remains in good shape
○ Must make sure that the object was fir for the use for which it was intended
○ If a third party, who claims to be the true owner, successfully evicts the lessee
after a rei vindicatio, the lessor has to pay compensation to the lessee for the
amount of the lessee’s interest.
4.2 Obligations of the Conductor or Lessee
● Main obligation → to pay
○ Must use the object according to its intended use
○ Must return the object in good shape
4.3 The Proprietary Interest of the Conductor
● Only has factual detention over the object he has leased
● If the lessor sold the object to a third person, the lessee was completely powerless.
The third person had nothing to do with the relation between locator and conductor.
The third person could stop the lease and force the conductor to leave or return the
property immediately.He could only claim compensation from his locator.

Section 10 - Delict: Introduction

 ● Delicts could belong to private law(not in the public interest) or public order (required
state intervention)
● Private law
○ Rapina → robbery
○ Furturm → theft
○ Iniuria → insulting behavior
○ Damnum iniuria datum → wrongful damage to property
Section 11 - Damnum Iniuria Datum: Wrongful Damage to Property
● Context of the Lex Aquilia
○ Contained three chapter
■ First chapter → Animals important for archaic farming + slaves (next
year)
● Exact wording : “If anyone kills unlawfully a slave or female
slave belonging to someone else or a four-footed beast of the
class of cattle, let him be condemned to pay the owner the
highest value that the property had attained in the preceding
year”.
○ Donkey, horses, goats and sheep NO dogs or cats
■ Third chapter → ANYTHING that was not slaves or cattle (next/past
thirty days)
● Exact Wording : “In the case of all other things apart from
slaves or cattle that have been killed, if anyone does damage to
another by wrongfully burning, breaking, or spoiling his
property, let him be condemned to pay to the owner whatever
the damage shall prove to be worth in the next thirty days”
● Position of Claimant and Defendant
● The Essential Elements
○ Culpa → damage HAD to be caused wrongfully
■ Meaning it requires intentional conduct and fault
■ Negligence, sloppiness, ignorance, lack of foresight
■ If loss occurs because of force majeure NO LIABILITY
○ Iniuria → the action was wrongful
■ Overwhelming necessity or self-defense = DEFENSE
○ Causation: loss caused by the defendant
■ There MUST be a link between the wrongful action of the defendant
and th loss to the property of the claimant
○ Damnum: loss
■ Requiring physical harm
● If NOT then it did not fall under the lex aquila
● Noxal Liability
○ One could be responsible for the delict committed by another.
○ Owner could choose to hand over the one responsible for the damage instead
of actually paying for the damages
 Chapter 1 History of Roman Law
Archaic (monarchy and early republic)
Monarchy
● Absolute Kingship: commands everything, one single man (everyone knew each
other)
● Romans did not like dictatorship which lead to them kicking them out of the society
(no more saying rex/king)
● Always had two people for the same job for only a year
○ Could veto each other
○ The power could be split up because of their skills
○ Split up different tasks
● No distinction between law (ius) and religion (fas)
● Focus on customary law (habits of the eldery) as the core roman civil law
● Pater familias (head of the family) not punished for the decisions he makes for family
Early Republic
Positions
● Quaestor (public order/police/making sure there are enough resources/once elected
you would have life membership of the senate)
● Praetor (legal system/wants to become a consul)
● Consul (highest role)
● Senate (Senators/discuss politics/everyone could voice their opinion (the
leading/wealthy families))
Popular Assemblies (Senate and Plebeian Tribune could submit initiatives)
● Electing people for positions
● Voting on issues and policies that came up
Social Structure
● Patricians → descendant of those who kicked out the kind
● Plebeians → descendants of people who came to Rome but NOT the originals of the
republic. (wanted to gain the same political rights as the patricians)
● People wanted to become roman citizens to run for office and not pay taxes on
income
Roman Law
● There IS a distinction between law (ius) and religion (fas)
● formalisits/ritualistic ius (mancipatio, stipulatio)
● Priests guarded the social structure of society and set rules of behavior
● Rules of law are customary which means they are not written ONLY priest know
● Law of XII Tables came to be by the plebeians

Classical (late republic and principate)

Late Republic
● Contact with Greek culture and made use of greek skills
○ Ius gentium → law used for foreigners and roman citizens
○ Ius civile → law used for roman citizens
 ● Praetor
○ One for ius civile and another for ius gentium
○ In charge of legal system
○ Makes the decision if the case goes to court (can issue an edict)
○ Next step is consul
○ Formula → script he gives to the judge on the rule of the case
● Not much legislation on private law except lex aquilia
○ First chapter → animals for farming and slave (must see value for preceding
year)
○ Second chapter → anything other than farm animals and slaves (must see
value for past 30 thirty days)
Principate
● Augustus principate → “first among peers”
● Pax romana
● Law under the Principate
○ Not much legislation in private law
○ Praetor could enact the edictum perpretuum (final version of an edict)
○ Legal science - information in order to back up court decision
■ Casuistic - based on cases and present findings under case
■ Practical - goes to the point, no abstract theories
■ Jurists - famous jurists like papinianus
Post-classical (dominante)
● Roman law
○ From princeps to dominus (meaning he runs the place no longer one of them)
○ Everyone part of the empire is a roman citizen (only one legal system)
● Source of law
○ Legislation → emperor decided any legislation NOT popular assembly
○ Courts → judges are professionals of the law, and become civil servants. Can
appeal to emperor
○ Legal science →
■ Most important form of law
■ Lex citandi → only 5 jurist opinions could be used
■ juristic opinions continue to be important in court