roman law Flashcards

Question

principate - law

Answer 1

jurisprudence & legal science as major source of law not much legislation except lex aquillia Praetors Edictum Perpetuum + Now lost power bc of ius respondendi Basilicae Where praetor has the court Praetor would be on tribunal People went there to make transactions & gossip (amén, yo)

Answer 2

Legal science - most important source of law, where innovation is Casuistic Judge gives his opinion but does not have to explain his reasoning behind his opinion + We infer what does not appear on the text e.g.: you have to pay for damage caused by your animal Ius respondendi is constantly creating new rules: Emperor-chosen jurists + legal specialists answer the public’s questions - opinions/advice on his behalf Later… rescripta organised by emperor Written advice by organised administration Replaces ius respondendi bc they were becoming overflooded w/ requests

Answer 3

Justinian ‘Making Rome Great Again’ Dominus (owner) Centralization Centralised State Constantinopel: shift to East Lower army’s power - yet military revival 1 religion: christianity Bureaucracy overshadows classical jurists’ opinions Cognitio procedure Cultural revival, armae et leges Architecture, mosaics in churches, dome Codification projects

Answer 4

emperor as major source of law Armae et leges (army of laws): many legislation Death of res nes mancipi vs res mancipi Constitutiones imperiales (legislation) compiled in the Corpus iuris Institutiones: Book to study law, principles of legal practice Ius divided into: personal & family law property, obligations & inheritances civil procedural law Digestae: Legal science compilation by jurists Cases reworked to fit “current circumstances” + erase there contradictions/redundancy Only the ones who were still relevant were selected If an opinion was not found or too vague in Digestae, ask emperator Fall of traditional jurisprudence, emperor as primary source of law Codex: Constitutiones imperiales (laws) by previous emperors, imperial legislation Novellae Constitutiones: New laws enacted by Justinian after the Codex had been published Courts: With the Perpetual Edict, praetor loses his role as the one responsible for the legal system, and therefore the cognitio procedure arises Law experts & legal professionals Possibility of higher appeal: ask a higher judge to reconsider, you could appeal until you reach the emperor - the highest judge of them all

Answer 5

Problems Too many opinions Authenticity - is this really what the famous jurist said?? Attempts to solve it Lex citandi (Law of Citations) - Only the main 5 jurists opinions can be used in court - spoiler: it did not work The issue of translation arised + limiting to only consider 5 opinions Codification projects: Digestae

Answer 6

interdict actio publiciana rei vindicatio

Answer 7

mancipatio in iure cesio usucapio traditio occupatio servitudes

Answer 8

If you are a lawful possessor + in good will & your possession is directly disturbed, go to praetor Burden of proof lies on non-possessor

Answer 9

protects owner (in a very inefficient way) Defendant can’t be forced to return the good, if he wants he can simply pay - Onus of proof lies w/ the plaintiff (the one making the claim) Plaintiff needs to prove that the one who gave him the object was an owner that obtained it from an owner that obtained it from an owner that obtai…

Answer 10

While the period of usucapio is running, say that you are on your way to become an owner according to the ius civile through usucapio to get it back !! Technically, you can also use it if you are in fact an owner, to avoid doing the long and complicated burden of proof of the rei vindicatio Actio Publiciana’s proof was easier to deliver

Answer 11

only thing that could be used by non-citizens & for res nes mancipi Intent/causa was very important!! + animus/ will Effective, fast, simple, informal

Answer 12

the witnesses & bronze balance says this horse is mine Oldest method, very ritualistic & formal for res mancipi

Answer 13

Mock trial One claims this is mine! Praetor asks the other if they have a counterclaim & if they don’t then that shall be his can be used for res mancipi

Answer 14

1 year movable, 2 years immovables before late republic, after late rep. 2 years for movables & 10 for immovables Ownership obtained by ius civile after undisturbed possession during a period of time If someone was 4 months into usucapio (wasn’t the owner yet, 8 months left) & he sells you a Bovidia, then you have only 8 months left to become an owner

Answer 15

Ius in rem = servitudes praedial and personal servitudes

Answer 16

Iter - walk over someone else’s land Actus - drive cattle over someone’s land Via - drive cattle w/ a cart over land Aquaeductus - create a water path

Answer 17

perpetually attached to the land (not the person!!) In classical times established by mancipatio, in iure cesio or usucapio, later w/ Justinian you could use traditio (bc he took away the distinction ‘twixt res mancipi & res nes mancipi) Extinguishable: If servitude wasn’t used for two years If land is destroyed If servient & dominant property is merged Righthoulder could renounce his right by mancipatio or in iure cesio Types Iter - walk Actus - drive cattle Via - drive cattle w/ cart Aquaeductus - water path

Answer 18

attached to rightholder, for a specified time or their lifetime in both movable & immovable goods Usufruct - established via mancipatio or in iure cesio Use, rent, enjoy & extract the fruits of that property You can sell your usufruct right, but the time limit remains to be on your life Ends if Se muere o termina el stipulated time period Property is destroyed Naked ownership & usufruct are merged Usufructuary does not use it for 1 year (movable) or 2 years (immovable) Usus - like an usufruct buy you can’t enjoy the fruits of it + your guest need to pay to stay the night w/ you

Answer 19

usufruct usus

Answer 20

Uti - use Frui – enjoy the fruits of Abuti – dispose of, use until extinction

Answer 21

possession Corpore et animus: physical element + intent(ion) = physical control

Answer 22

do you solemnly promise? ⇒ match verbs ‘twixt question & answer Pretium - price to be expressed in money YOU CAN’T OBTAIN OWNERSHIP OF A RES MANCIPI SOLELY VIA STIPULATIO, A MANCIPATIO IS STILL NECESSARY IF YOU WANT TO OWN BOVIDIA

Answer 23

no!!!!! it never does!!!! if you go & ask praetor for compensation under a contract of sale you! will! get! nothing!!!!!!!!!! use mancipatio, in iure cesio or traditio instead at time of delivery, or wait until usucapio only use traditio if it is a res nec mancipi obviouslyyyyy

Answer 24

Consensus - consent Merx - individualised, specified m - price ascertainable (can be found out) + expressed in money Pretium certum - price ascertainable (can be found out) + expressed in money Pretium verum Ridiculous pricing is valid if seller truly wants to sell it cheap (discount) or if buyer truly wants to buy it at an expensive price (maybe it holds emotional value)

Answer 25

Negotio - mistaken ab kind of agreement e.g.: A thinks he is buying, B thinks it is a lease Corporae - which particular object is being sold Nomine - using ≠ names for = object Substancia - object’s substance e.g.: buying vinegar as wine NOMINE IS VALID NO SE POR QUE NOS LO ENSEÑARON ENTRE UNA LISTA DE COSAS NO VALIDAS BART SOLO QUIERE QUE NOS CONFUNDAMOS

Answer 26

agreement & delivery are, legally speaking, 2 ≠ moments

Answer 27

pay (duh) + take on the risks Buyer beware! Si compras una Bovidia y se muere antes de que te la den, bancatela, tenes que pagar igual as long as seller had tried to protect the cow in bona fide UNLESS you make an additional stipulatio saying ‘do you solemnly promise that si no me das la vaca me devolves la guita?’ - that does offer you protection under the law Though, you also assume the risks for good!! - ‘benefit belongs to him who incurs the risk’

Answer 28

only delivery + custodia (take care of object until delivery) He should do the mancipatio , yet, he is ¡¡¡¡¡¡¡¡¡¡not!!!!!!!!!! forced to transfer ownership - qué significa esto? que él hace el mancipatio pero si el mancipatio no te hace dueño (seller is not owner) a él no le cabe una

Answer 29

Hire/Lease Hire of work Hire of services

Answer 30

Consensus Merx: corporeal things, need for a tangible object Pretium

Answer 31

pay rent + use according to purpose + take care Use things for their appropriate purpose - don’t use a car to build apartment or as a lawnmower Liable for defects or perishment: If you were renting land, you needed to work it - letting it go to waste = letting it perish

Answer 32

Tenants are nor possessors nor owners, they are simply have detentio/factual detention

Answer 33

availability + protection against eviction Availability during duration of the contract - peaceful, safe & undisturbed enjoyment of the object If you pay rent before your rent period starts & have to evacuate, you get your $$$ back If you sub rent your apartment & you are asked to evacuate bc if not the building will collapse, the locator does not have to compensate for you losses bc he is ensuring safe enjoyment of your rental Protection against eviction - Conductors are neither owners nor possessors, so if what you rent out is stolen or taken away via rei vindicatio from them, you need to ensure that they get it back or smthng similar - conductor can ask monetary compensation to locator for the money he lost by not having the object until a new object is given to him if there is mala fide or the locator has not fulfilled his duties properly e.g.: while c is w/ out a horse, he loses income bc he can’t work w/ out a horse, so t needs to compensate for it Another e.g.: if you are evicted from your apartment and need to pay for a hotel until locator gets you a new apartment

Answer 34

Jurists distinguished 'twixt private law delicts (and therefore were not in the public interest - a nadie le importaba) and offenses against public order that required state intervention, the so-called crimina. pense que no habia que estudiar esto porque no me acuerdo de haberlo visto en clase pero bart lo incluyó en su announcement de los capítulos de su libro que entran en el examen!!!!!!!!

Answer 35

rapina (robbery) furtum (theft) iniuria (insulting behavior) damnum iniuria datum (wrongful damage to property) 1st 2 found in XII Tables last 2 found in Lex Aquillia