roman law

Question 1

monarchy - context

Answer 1

Strategically located in river banks of Tibet
Trade with sophisticated society (e.g: the etruscans)

Question 2

monarchy - political structure

Answer 2

REX - Absolute monarchy
Etrsucan Puppet Regime
Romans kick out the king and a bloody way w/ etruscans begins, Rome wins

Question 3

archaic roman law is composed of….

Answer 3

monarchy + early republic

Question 4

classical roman law is from the…

Answer 4

principate (augustus)

Question 5

post-classical roman law is from the…

Answer 5

dominate (justinian)

Question 6

monarchy - law

Answer 6

pontiffs as most important source of law
No clear distinction ‘twixt law & religion
Focus on customary law - mos maiorum (i.e.: the rule of the elderly)

Question 7

early republic - law

Answer 7

ius civile = mos maiorum +
Law of XII Tables +
Responsa of pontiffs

Emancipation of ritualistic/formalistic ius (legal rules) from fas (religious rules)
Both interpreted by Pontiffs
Explaining & interpreting responsa, casuistry
Yet, ius remains very ritualistic/formalistic

Question 8

republic - political structure

Answer 8

popular assemblies, senate, plebeian tribune, magistrates (consul, praetor, quaestor), censor, dictator, pontiffs

Question 9

republic - senate

Answer 9

<3 of political system
Meeting of heads of patrician families, who had taken the initiative to kick out the king
Submits initiatives, requests & proposition to the Popular Assembly
No decision-making power in itself but lots of authority
Can’t implement policies
A talking club for the rich
No general elections (you can’t run for senator)
Everyone who ever was a Magistrate is a life-member
Elects the Dictator, when needed

Question 10

republic - plebeian tribune

Answer 10

a senate but for the plebeians

Question 11

republic - magistrates

Answer 11

Each sector is independent from the other (e.g.: consuls can’t meddle in quaestors’ affairs)
1st you need to be a quaestor, then a praetor and then you can be consul
Once you become any type of magistrate you are automatically a life-member of the Senate
You are obliged to explain your policies to the Senate ⇒ if disliked, reputation suffers
Always 2 of each type in office
Each had veto power over their partner
Any Roman citizen can run for Magistrate - in principle
In practice - be rich!
Political campaigns cost money
Magistrates weren’t paid & neither was their staff - maintain yourself + your team w/ out income
After the 1 year in office, you could run again an unlimited amount of time, but you needed to run again

Question 12

republic - popular assemblies

Answer 12

all Roman citizens
Legislative decision-making power
Vote on initiatives proposed by Senate or Plebeian Tribune + elect officials
Not a democracy tho:
If the rich are all in agreement, they decide (their votes count more)
Very likely that a proposition by the Senate would be approved
Pop Assembly only has real power when the Senate is divided

Question 13

republic - censor

Answer 13

Drafts the lists of who is a Roman citizen
Senior politician, considered honest & trustworthy
Sometimes calms down Romans who were too harsh on their slaves

Question 14

republic - dictator

Answer 14

Extraordinary emergency official
Elected by the Senate in times of crisis
Full power
Aprox 6 months in office

Question 15

republic - pontiffs

Answer 15

Interpreted the law during the Early Republic
Were always patricians
Guardians of social structure of society (family)

Question 16

early republic - ‘sticks & carrots’ policy

Answer 16

Turning enemies into allies
Keep control over growing territories using little resources & w/ the need of a massive army - When Romans won a war, they would allow the defeated enemy to keep its system, religion, rules, institutions, etc in exchange for a promise of loyalty to Rome
Couldn’t conspire with Rome’s enemies

‘Sticks’: If an ally conspires against Rome, Rome would come back & annihilate them + tell other allies of their treason

‘Carrots’: Give enemy’s local elite the prospect of becoming Roman citizens (could run for office) - Elites would be loyal bc if they ended up in office in Rome, they would prefer that their own civilization got along w/ Rome

Question 17

archaic law - legis actiones

Answer 17

legis actiones = process law

Legal remedies
Very limited amount ⇒ if smthng didn’t fall under a specific kind of remedy then there was no legal protection nor basis for the case

Question 18

archaic law - Law of XII Tables

Answer 18

Plebeians force Pontiffs to give up their monopoly of knowledge over the rule of law (ius)
Motivación de la plebe: when plebeians had problems w/ patricians, pontiffs would biasedly rule in favour of the patrician bc they were patricians themselves
They couldn’t anymore bc now the laws were written down!
Separation ‘twixt the sacred & the judicial
No clear religious references bc pontiffs unwilling to also give up their monopoly over the religious sphere (fas) - since they already lost ius

Question 19

late republic - context

Answer 19

Julius Caesar
Economy = agriculture + trade/commerce + finance + slavery (property, cheap labour)
Senatorial class (aristocracy, leading families)
Contact with Greek culture
Introduction of rhetoric & philosophy into education = better lawyers

Question 20

late republic - law

Answer 20

pratetor as most important source of law
Ius gentium: laws dealing w/ foreigners - praetor peregrinus

In direct opposition w/ ius honorarium (= Archaic law + ius praetorium)

Ius civile: laws for Romans - praetor urbanus

Ius civile = mos maiorum, XII Tables + praetors’ & jurists’ responsa
Complemented by the ius praetorium

lex aquillia

Question 21

late republic - praetor

Answer 21

Praetor urbanus in charge of ius civile & praetor peregrinus of ius gentium
Discretionary power - they decide whether you may take your case to court
They are usually fair & not abuse their discretionary power bc they want to run for consul
Praetorial edict
Prospects, statement on under which circumstances he will allow cases to go to court - only deviates from edict when there is social support
Ius praetorium
Body of law developed through edicts
Complemented the ius civile & lex aquillia

Question 22

late republic - lex aquillia

Answer 22

1st chapter:
Unlawful physical killing of slaves & cattle = pay owner highest value property had attained the previous year

3rd chapter:
Unlawful damage to property = pay for full price of losses (damage suffered) in next 30 days
Si me lastimas el brazo y a los 30 días se cura, listo, si a los 30 días se infecta y me lo tienen que cortar es una compensación más alta
Dogs included
You have 30 days to establish your loss
Compensate for full loss, not full market price
Full price includes emotional value

Negligence is crucial - how do we establish negligence?

Question 23

late republic - legal science

Answer 23

Responsa: individual lay jurists take over role of pontiffs of answering legal enquiry

Question 24

Principate - political changes

Answer 24

installed by Augustus
Pax Romana - period of stability
Princeps Senatus
Princeps inter pares
Republican institutions remain - supposedly no new office nor dynasty yet Augustus was part of both ⇒ holds power over previous institutions & pretends previous Republic remains exactly the same
Senate
No longer that important yet Augustus pretends it is - he is able to bypass the Senate & go directly to Popular Assembly

Birth of civil service & fiscus (taxation)
Emperor pays (w/ tax money) armies on the borders so they remain loyal to him
Everyone who is free is now a citizen so they need to pay taxes

Question 25

principate - law

Answer 25

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)

Question 26

principate - legal science

Answer 26

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

Question 27

dominate - changes

Answer 27

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

Question 28

dominate - post-classical law

Answer 28

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

Question 29

dominate - legal science

Answer 29

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

Question 30

Property law - i want my thing back!

Answer 30

interdict
actio publiciana
rei vindicatio

Question 31

Property law - i want this thing!

Answer 31

mancipatio
in iure cesio
usucapio
traditio
occupatio

servitudes

Question 32

interdict

Answer 32

If you are a lawful possessor + in good will & your possession is directly disturbed, go to praetor

Burden of proof lies on non-possessor

Question 33

rei vindicatio

Answer 33

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…

Question 34

actio publiciana

Answer 34

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

Question 35

traditio

Answer 35

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

Effective, fast, simple, informal

Question 36

mancipatio

Answer 36

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

Question 37

in iure cesio

Answer 37

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

Question 38

usucapio

Answer 38

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

Question 39

What is an ius in rem - name the types

Answer 39

Ius in rem = servitudes

praedial and personal servitudes

Question 40

name the types of praedial servitudes

Answer 40

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

Question 41

praedial servitudes

Answer 41

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

Question 42

personal servitude

Answer 42

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

Question 43

types of personal servitudes

Answer 43

usufruct
usus

Question 44

dominium types

Answer 44

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

Question 45

what is Corpore et animus?

Answer 45

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

Question 46

Contract law - Stipulatio’s format

Answer 46

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

Question 47

Contract law - does a contract of sale offer you legal protection in itself for a res nec mancipi?

Answer 47

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

Question 48

Contract of sale - conditions

Answer 48

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)

Question 49

Contract of Sale - possible errors in consensus

Answer 49

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

Question 50

Contract of sale - are agreement and delivery the same?

Answer 50

agreement & delivery are, legally speaking, 2 ≠ moments

Question 51

Contract of sale - buyer’s obligations

Answer 51

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’

Question 52

Contract of sale - Sellers obligations

Answer 52

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

Question 53

Contract law: Locatio conductio (hire) types

Answer 53

Hire/Lease
Hire of work
Hire of services

Question 54

Contract law: Hire - conditions

Answer 54

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

Question 54

Contract law: obligator of conductor

Answer 54

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

Question 55

Contract law: are conductors possesors?

Answer 55

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

Question 56

Contract law: obligations of locator

Answer 56

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

Question 57

Delicts - what is crimina?

Answer 57

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!!!!!!!!

Question 58

Delicts - types of private law delicts

Answer 58

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