Introduction to Roman Law

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AN INTRODUCTION TO

ROMANLAW BARRY NICHOLAS

CLARENDON LAW SERIES

CLARENDON LAW SERIES The Concept of Law By H.L.A. HAR'I An Introduction to th< Law of Contract (4th Edition) By P. 5. \TIYAH An Introduction to the Law ofTorts (2nd Edition) By JOH'.\' G. FLEMI:\'G Legal Reasoning and Legal Theory By '\EIL \-la1 COR�IICK Xatural Law and '\atural Rights ByJOHl\ G fl:\'\IS The Foundations ofEuropean Community Law (:.md Edition By 'I. C H.-\R rLEY The Law of Propert\ . .mdEdition) Bv F H. LA\\ ';0'\ and BLR '\ \RD RL'DDE'.\' An Introduction to :\drrnni. tr tl\T Law B ) Pr, n,R C \'.\ L Bentham and the Common L;iw Tradition By C,ERALD.J PO._, n :\I.\ Connu ts of Law and :\lor,1litv h ) Kl,;\ I (;RU:t\ \\\'\LI Prinnplcs ofC.rirnin,tl l:v1de11< t' By .\DRJ,\;\; Zl'CKER:\L\t\ .-\11 I ntrod11ction to the L.1w nf I ru•t� lh SI�IO"\ C,.\RD;-...�.R

AN INTRODUCTION TO

ROMAN LAW BY

BARRY NICHOLAS FORMERLY PROFESSOR OF COMPARATIVE LAW IN THE UNIVERSITY OF OXFORD AND SOMETIME PRINCIPAL OF BRASENOSE COLLEGE

CLARENDON PRESS · OXFORD

Oxford [!nivmi{r PreJ.1, Walton Street. Oxfi,rd ox2 6nP Oxford ,\eu· lork 1omnto Delhz Bombay Calcutta .Hadra., li.ar(l(hz Peta/mg ]aya ,Szrzgapore Hong Aorzg 1o/cro .Vmrobz Dar t-> 'ialaam Cape Ioun .\felboume .luck/and and asrncia!Ld companies in Berlin Ibadan (hford i1 a tradt mark of Oxford Univerr othn of t lw Euro­ pran sys t n 11s, b u t i n o t hn tie!Js thry st i l l rcgu latC' t h (' l i ves , , f many m i l l ions of

people.

I NT R O D U CTI O N

3

2 . T H E G �N S T I T U T I O N A L A N D H I S T O R I C A L B A C K G RO U N D

N o system of law can be fully understood i n isolation from the history of the society which it serves and regulates. What follows can be, however, no more than a sketch of some of the salient features of the history of Rome in the thirteen centuries which end with the death of Justinian in A.D. 565. The struggle between the Orders, and the Republican constitution. For the history of the first period, ending traditionally in 5 1 0 n.c. with the expulsion of Tarquinius Superbus, the last king, we have little reliable evidence, and for its law even less. From this period the Roman Republic emerges as a small city-state, based mainly on agriculture but already acquiring some commercial importance and showing signs of those military abilities which were to extend her frontiers far beyond the Mediterranean world. However, the first century and a half of the Republic (5 1 0-36 n.c. was devoted largely to the internal stru tween the two ers o ses-:· to which th · · ;en bod was 1v1 ed the Patrician nobil�·,,:J..-�..u.L_..._Uen some 'reception' in the reverse direction also. For in the law as we k now it a frw i nstitutions which were part of the old , strictly Roman, ius riz•ile were nevertheless applicable also to peregrines, notably the contract of stipulatio 1 i n all but one of its forms. But hrrc ag,lin we lac k the evi­ dence to tell how this development occ u rred. l\or, as we have see n, can we know how early the term ius gmtium was applied to this hody of Lnv, or what influrncc the philosophical idea had u pon its development. All that is certain is that in Caius the term is used both in the philosophical or t heoretical srnse discussed above and i n this practical sense, and t hat in either sense i t e-mhraccs thc g-rcater part of thc law outside the law of persons and thl' law of succession . Without it t h c Roman J aw wou ld ncvcr haw hel d t he place in history t h a t it do in wea l t h i n general a n d i n t h(· owner s h i p o f sbvc-; i n p;trt i c u l a r h a d l argely removed the pro b le m w i t h which the lrx !Ltd l w r n in te nded to deal. ffr n- t a i rll'cl , hmffvcr , in a rn odi f i ( '(l fiirm. t h (' rest rict ions of the lex Aelia Sentia. 3.

C R E A T I O N A N D T E R M I N A T I O N O F PA T R I A P O T E S T .4. S

1/ol(' /1r1 trirz pntr 1 f(/\ arz.1r r. 1'11tn11 /1ntn t11 1 \,· ,ts n o rm a l l v , of c o u rse, c reated bv birth out of a R o m a n m a rr i ag(' 111 1 /ar n;1,/1tiar ' . This \vi i i he considnccl below. It c o u ld ;il�o. h mffvn, l w artif i cially

C R E AT I O N A N D T E R M I NAT I O N OF PA TRIA PO TES TA S 77

created by adoption. This took two forms, both of great anti­ quity-adrogatio of a person who was already sui iuris, and adoptio (in the strict sense) of a person who was in the patria potestas of someone else. The original motive for adoption must have been the desire of a childless man to ensure the continuance of the family cult (sacra) , though it is possible that in very early times it also served as a crude substitute for a will. When the religious motive had lost its force, there remained the common desire to perpetuate the family, and the survival of many Roman families through the centuries was made possible only by adoptions. (a) Adrogatio. This was achieved by an act of the comitia curiata, preceded by an investigation by the pontifex maximus. 1 The reason for the legislative form and for the investigation was that adrogatio made possible the continuation of one family and its sacra only at the cost of the extinction of another. The pontifex must be satisfied on religious grounds, and the comitia had an interest in the political consequences of the merger of two power­ ful families. In historical times, as has been said, the comitia curiata had no longer any substance as a legislative body, but the inves­ tigation by the pontifex was maintained, and certain principles which guided his discretion were evolved. In particular, since the justification for adrogatio was the desire to continue the family, the person adrogating must have no children, either natural or adoptive, and must either be over the age of 60 or for some reason have no prospect of begetting children. And the person to be adrogated must not be older than the person adrogating. Since the comitia curiata met only at Rome, adrogatio could take place only there until, certainly under Diocletian and probably before, a new form of adrogatio, by imperial rescript, was intro­ duced. This was a change of form rather than of substance : the official approval was merely manifested in a different, and less formal, way. The old form thereafter disappears. (b) Adoptio. The transfer of a person from one potestas to another involved first his release from the old potestas and then his subjection to the new. The Twelve Tables recognized no method of release from potestas, but there was a clause, intended apparently to put a limit to misuse by a father of his right to sell his children, which provided that if a father sold his son three 1

The head of the priestly ' college ' of pontifices (cf. above, p. 28) .

,L AW OF PERSONS

times the son would be free. This was turned to advantage in a characteristic way by pontifical interpretatio to achieve both emancipation and adoption, the two ceremonies differing only in their final stages. For the purpose of adoption the ceremony runs as follows. In the presence of the usual five witnesses and libripens the father mancipates the child to be adopted (ado­ ptandus) to the adopter. The adoptandus is as a result in mancipio 1 to the adopter, who then manumits him vindicta (i.e. the parties go to the Praetor and the father claims that the adoptandus is free, and the adopter acquiesces) . The son is then free, but once more in the potestas of the father. A second mancipation and a second manumission follow, producing of course the same result. The father then mancipates the son a third t i me to the adopter. By the Twelve Tables rule the adoptandus is then out of the potestas of the father, but is in mancipio to the adopter. The adopter therefore mancipates him back to the father, and the final stage is once more before the Praetor-the adopter makes a collusive claim that the adoptandus is his son ( in iure cessio) . 2 By a characteristic piece of well-intentioned but illogical pedantry the pontifical l awyers held that as the T"Tlve Tables referred only to sons, only one mancipation was necessary to break potestas over a daughter or a grandchild. Justinian at l ast swept away the whole of this cumbersome ritual and kft only the essential-a declaration before a magistrate, entered on the court records. The effect of both adoptio and adrogatin was to place t h e adopted person for all legal purposes i n t he same posit ion as i f h e h a c l h 1 1 ws i 11 1 0 1 lw hands o f snw"nr wh,1 d r n i rs rnv t i t l r I assrrt m \· ownersh i p l Jy :rn ,1 C' l io 1n i n r,m, h1 1 t i f son1t·onr ne11;l ii.;rn th o r w i l f1 1 llv dam a;.:es i t I bring a n ,1 c t i"11 1 11 f•rrw11am aga i n s t h i , n h r h a s shorter period. Of these two restrictions the former is the more important. It excludes from possession not only t he borrower (rommodatarius) and the depositee (depositarius) but also the hirer, including the lesset> of land. Such holders have in conseq uence no remedy against third parties who interfrre with their holding. They hold o n behalf of t h e owner, who h a s possession through t h e m . I n t h e case o f a lease, for example, t h e lt'ssor can proceed b y t'it ht'r vindicatio or possessory intt'rdict against a third party who inter­ feres with the lessrr's occupat ion of t h e la nd, but tht' kssee can on ly proceed in /1rno1111m against the lessor by an action on the contract. This may v.:rll be inconvcnirnt if the lessor is, for example, absent or dilatory. The exclusion of beneficiaries of iura in re aliena is of kss prac tical import ance, because thcv could always assC'rt their right by an action in rem , and bccausf'.' at any rate the usufrurt u a ry was eventually given a vari;:m t ( utilis) form of t he posscssory intrr cli rts and thcfC'fofC' had in t his respect possession in all but name. There still rrmainc-d however the i mport a nt conscqurncc that iura in re alirna co� l d neithc'r be conveyed by traditio nor acquired hy usurnpio. ' Thr rr arr a l so o thrr n, nseq\lrnres, surh as th!" r i g h t of t hr possrssor in good faith to fru i t!! (hd"w, p. l '{' I ) , and t i t !pt I a" r 1 1 io gi ,., . n ahon' . .-l/111; 10 and a/'11/.,io can fai rl y f'as i l y l w f i t t l'd i n ! , · x , • · p t t h a t t h nr s h o u l d h e anr 1 1 to tn the ! H' d r a t hn t h a n t o t h , · ban k , and t l w l wd is said t 1 1 i lf' p 1 r l , l ic ) . B 1 1 t irz mla n.nla a n d afrew drrtiidu.1 , a n only be i n, l 1 1 d 1 ·d ! "· ;1 lnr , ,·d in t , · , p 1 , · t .1 t ion and i t S1 ;i l , , ,11, rpt "f g1 1< >c l fa i t h . Thrrraftrr this ,on ­ rrpt ar had t'nte red i n to a cont ract . He must prove that he had entered in to the type of contract specified in the formula of his action. I t would avail him nothing, for ex ample, to show a contract of hire if his ac tion \\' rre one of sale, even though, on the poi nt in issue, the incidents of the tv.;o contracts might be the same. The thi rd conseq uence is the most obvious - the possibility of gaps i n the law. An agrrrme nt, though seriously intended, might fall within none of the recognized headi ngs and thnefore have no lega l effect . An example of this is the one alre ady given of an agrcemt' nt to sell for a reason able price. This �hortcorning was , howeve r, mitiAatcd by the existcnu a mong the rrcognized headi ngs of the stipu/(lt/o, which cmhodirs a d i fferent principle . .\ fethodr of contracting (]Nd ( rpn 1!{ contract. The stipulatln was, as we have see n , a form al contract. It was not this, howcYcr, that gave it its importance l t lw ot hn formal contract-; are of Iittlr c onst>quencc), but the fact that it was a method of nrnt racting rather than a type of con t rac t . Any agree ment could be made legally dfectivr by being cast i n the form of a st ipulation. The agreement to sdl for a rcasonahl jhlw1·r tu pass t i t le. Havi n�, .u y,.t, no ti tle, he can pass none. ' 1 1 1. 1 1: l i t t h , r • ! , r ,· �• rm s m 1 p l r 1 t 1 1 ..i l l"w t h • · t 1 t l1· t1 1 1 1,1ss w i rh the risk o n thf' comp J . - t ' • I I , . f t h ,· , " l l t r a r t , h1 1 t . w h;i t , ·vrr t lw i n t r i nsic 1 1 . , - , i i s of t hr srµaration of con t ra, 1 , 1 : 1 d , · , ,nvry,u1 cr, t h is r rratrs , ,t h rr d 1 ! l 1 < • 1 l t ws. Sec· aboYr, pp. 1 n2 ff.

CONTRACTS

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seller knows th�t he is not owner and the buyer does not, the buyer has a remedy, but on the ground of the seller's bad faith, not of his lack of title. Whereas if the seller is in good faith the buyer has no remedy unless and until he is evicted by the owner. In most cases, of course, this will be a distinction without a difference, since the buyer will usually become aware of the seller's lack of title only when the owner asserts his title, but exceptionally the rule can cause hardship. For example, if it is certain that the seller was not the owner but uncertain who is, or if the owner cannot be found, the buyer can neither claim against the seller nor, since he is aware of his lack of title, resell. The origin of the rule is much debated, but its survival into the classical law is surprising. It has disappeared from modern Civil law. (iii) Warranty against latent defects. The original principle of the civil law was caveat emptor. 1 The seller was not liable for any defects in the thing unless he had by stipulatio expressly under­ taken such liability. The development of the idea of good faith imposed a considerable qualification on the rule by making him liable for any defects of which he knew but which he had not revealed. Moreover, since the requirement of good faith was inherent in the contract itself, the seller could not contract out of this liability. Such a high standard of honest dealing is not imposed on the English seller. The further development of the seller's liability came from the Aedilician Edict. In exercise of their jurisdiction over the market the Aediles issued edicts regulating market sales of slaves and beasts of burden. Sellers were required to display on a board a statement of any physical defects and, in the case of a slave, certain other defects also (if he was a vagabond or a runaway or burdened with noxal liability 2 ) . If a defect appeared which had not been so declared the buyer, if he sued within six months, could claim rescission of the sale by the actio redhibi­ toria, and, if within twelve months, could claim the difference between the price paid and the actual value of the defective slave or animal by the actio quanti minoris. In both actions the knowledge or ignorance of the seller was irrelevant : liability was strict. The seller could, however, exclude all such liability 1 2

The maxim is not, however, Roman. See below, p. 223.

LAW O F O B L I G A T I O N S 0

if he made clear his intention to do so, though he would still be liable for bad faith. By a process which remains obscure, this Aedilician liability was extended to sales outside the market, and eventually, but only by Justinian, to sales of every kind of thing, including land. This all-embracing strict liability, with its two actions, survives in the Corpus Juris alongside the older liability under the civil law for what had been expressly warranted and for bad faith . The forms of action were no longer significant , but it was presumably intended tha t where more than one remedy was available, the buyer should choose whichever was most advantageous to him. Duties of the b1�vrr. The b uyer's principal duties ,vere to pay the price ( a duty which was conc urrent wit h the seller' s duty to deliver, in the sense that if one party sought to enforce t he other's duty he must either have performed or b e ready to perform his own) , and to com pens a t e t h t' seller for any expenses he incurred in looking aft er the t hing between contract and delivery.

( 2) Hire (locatio conductio) Sco/N' and character. Into the framework of this single contract the Roman law fitted a wide ra nge of transact ions. There may at first sight St'ern to bf' little in common betv,: cen a l ease of land and a contract of emplovmr nt , b u t in the Roman ana lysis both we n· lorn/lo eo11d11t1 /o. \\'i thin t i ll' si n.�k Roman cat egory la t er c ivil i a ns distin _gui shcd t hr('c t y pes : l.c. 11' 1, I.e. opaa ru m , I.e. o/ieris. In I.e. rt'I one p a r t y \ /001/or J pla ce., ;1 thing-, \,· l wthrr mo\·able or immo\' a h k , ;tt the di spm;d of a nother ,_co11rl1u tor1 for his use or 1·11joy 1 1 w 1 1 t ; in !.(. o/1,.r1mm1 t he /0(11/or p h rcs his services ( oparzr) a t t he di-.p()s,d of the co11dueto r ; and i n I.e. oprris the lorn/or pla ffs out a pie< c of \\' ork \opus , to be d one b v the eon­ durtor, t l w work h,1\' i ng ahvavs, it scllsh q , 1 1 1 t l w s,·a 1 c h wh i � h 1 t's1 i l t ni i n t h e r1, / 1,, (,, , , , , ,, ,1, tf- ! 1 . 1 , t l t r' s 1 r l ' 1 1'c I 1 1 ! 1 1 1 1 1 , I t c 1 1 1 1 1 1 ·, 1 1 1 1 ,· . S,·c d r /, 1 r l u c ! a , /,1 1 t it11tn of Caius, Part I I , pp. 20 1 ff.

_D E L I C T A N D QU A S I - D E L I C T

213

(i) The act. I n spite of its obvious derivation from the verb ferre, meaning ' to carry' , furtum did not in the classical law require, as does the English crime of larceny, a taking away of the thing. The jurists use the term contrectatio, which strictly denotes a handling, but which seems to have included any meddling or dealing with the thing. Hence, as has just been said, the receiver was a thief, as also was the borrower who used the thing in an unauthorized way or to an unauthorized extent. (This is the so-calledfurtum usus, or theft of the use of a thing.) Likewise, embezzlement (the fraudulent appropriation of what is entrusted to one) or even, according to some jurists, the know­ ing acceptance of a mistaken payment of what was not owing, was theft. Since such a payment transferred not merely posses­ sion but also ownership, and since no one, and least of all the thief, could acquire ownership of stolen property, it was really a contradiction in terms to treat this last case as theft. The appro­ priate heading was dolus. 1 But it is nevertheless impossible to find a clear distinction in the opinions actually given in the Digest. (ii) The intent. The texts sometimes speak of an animus furandi or intention to steal, an expression borrowed also on occasion by English law, but since it offers a definition in terms of what is to be defined, it is of no assistance except as an indication that the defendant must be in some sense in a wrongful state of mind. In the ordinary case this will be sufficiently defined as the lack of an honest belief that the owner would consent if he knew. Thus, in the case of furtum usus, mentioned above, the borrower will be liable unless he honestly believed that the owner would have no objection. But what if the defendant had no such belief, but the owner in fact had no objection ? Gaius puts the case of the man who urges a slave to steal goods from his master and hand them over. The slave tells his master, who, in order to trap the dishonest man, bids the slave collaborate with him. Gaius held that there was neither theft, since the master had consented, nor the delict of corruption of a slave, since the slave was not in fact corrupted. Justinian, with the impatience of the legislator, reversed this particular decision but without resolving the more general problem of which it was simply an illustration. 1 See below, p. 223. In a similar context English law distinguishes between larceny, i n which the wrongdoer obtains possession, and false pretences, in which he obtains ownership.

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L A W O F O B L I G AT I O N S

From t h e requiremen t t h a t the act b e done against t h e wishes of the owner it should follow that an owner could n o t steal his own property. This was however not so. If he took i t from a person to whom he had, for example, pledged i t , o r from a bona fide possessor, he commit ted theft ( the so-called furtum

possessionis) . An inten tion of a d i ffe re n t kind is someti mes req uired -a n i n tent ion t o m a k e a gain. This would obviously comm only be presen t , and would serve t o d ist inguish theft from \V a n ton destruct ion-a necessary d i s t i nction since t h e l a t ter was a case of damnum iniuria datum. 1 I t also served t o t'xcludt' the compas­ sionate releasr of a chained slave, which the j u rists \Vere reluc­ tant t o s t igmatiz e as t ht'ft . The require m e n t \\·as not , hmvever, consistently carried through, and in an i n t e rpolated t e x t i t is given so ,vide a n i nterpre t a t ion as t o make i t v i r t u a l l y m e a n i ng­ less : a man who lends a t h i ng which hr h i mself h a s borrowed is held to gai n because tht' man t o whom h e lends it w i l l feel bound to do him a good turn . ( i i i ) The thing. Any mova ble thing w h i c h h a d a n mn1 cr rnul f t h e , enj oy me n t , & c . - ; l !ld so d o l w 1 1 di c i ;1 ri c s o f iurrz i n rt' 111/01a . :\ n y s u c h person m ; t y \ I W , a n d t h e rn e a \ u rc of t h e pc na l t � \\ i l l be the v a l u e of his i n tnn t . 0 1 1 t h