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Summary FLS1502 - Foundations Of South African Law study notes
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lOMoARcPSD|4339232Fls1501-notes - fls1501 notes
Historical Foundations of South African Law (University of South
Africa)
, lOMoARcPSD|4339232
Page 1 of 27
Notes for FLS1502 – Foundations of South African Law
Glossary:
Ius civile Original Roman law or civil law
Peregrini Everyone who had come from another country & was not a Roman citizen
Praetor peregrinus Official who dealt with all cases involving peregrine which may involve Roman
citizens
Ius gentium The law of all nations. The law the praetor peregrinus applied by taking the ius
civile and adapting it in order to make the system more just and equitable & less
formal and rigid, often utilizing the rules of other nations (such as with commercial
matters)
Ius honorarium The rules of ius gentium was later incorporated into the rules of ius civile therefore
the new system of ius honorarium
Res Thing
Res in nostro patrimonio Things in the estate
Res extra nostrum Things outside the estate
patrimonium
Res in commercio Things in commerce which could be acquired in ownership
Res extra commercium Things outside commerce which could not be acquired in ownership
Animus Domini Possession with the intention of owning it to the exclusion of all others
Sequester A person to whom the possession of a disputed thing was entrusted, pending
outcome of the dispute
Inter E titles a a to alk th ough a pe so ’s la d. A a ith via cannot have actus
Actus The ight to d i e a i als o take a ehi le th ough a othe ’s la d. Also has inter
Via General right of passage, including both inter and actus
Aquaductus The ight to i g ate th ough a othe ’s la d
The history of Rome divided into:
The monarchy (753 BC – 510/509 BC)
The republican period (510 BC – 27 BC)
The imperial period (27 BC – AD)
O Principate (27 BC – AD 284)
O Dominate (AD 284 – AD 565)
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Page 2 of 27
Periods of Roman legal history:
Early Roman Law (753-250 BC)
The ius civile is only recognized legal system applicable only to Roman citizens and was inflexible
and formal
Preclassical period (250-27 BC)
Introduction of the ius gentium legal system applicable to matters concerning foreigners and was
noted for its equality, flexibility and lack of formalism
Classical period (27BC – AD 284)
In AD 212 Emperor Caracalla promulgated the constitutio Antoniniana, which theoretically extends
citizenship to all inhabitants of the Roman Empire. This removed any need for different legal systems
for citizens and non-citizens and the differences between the various systems gradually disappeared
Postclassical period (AD 284-565)
Due to lawmen not having a sound knowledge of Latin and Greek and a widespread shortage of written
legal sources, the law became increasingly simplified and superficial with more local laws introduced.
There was a renewed interest in classical law which led to the codification by Emperor Justinian (Corpus
lures Civilis).
The Roman Law of Things Part A
Definition: the system of legal principles / rules that regulate the relationship between a legal subject and
a particular kind of legal object, namely a thing.
Function: to harmonise the great variety of individual rights in respect of things, regulated in three ways:
Defining the content and limits of ownership
Harmonising the cases where different people have different real rights in respect of the same thing
Regulating the exchange of and dealings with things and real rights
Res in nostro patrimonio Things in the estate
Res extra nostrum Things outside the estate – of no significance to the law of things as these are
patrimonium things beyond human control and ownership could not be had Such things were
either:
1. Things subject to divine law (res nullius divini uiris),
2. Things that belonged to the state or community (res communes omnium), or
3. Things that belonged to everyone (res nullius humani iuris)
Res in commercio Things in commerce which could be acquired in ownership
Res extra commercium Things outside commerce which could not be acquired in ownership
Various things in the commercial world:
1. Corporeal things: things that can be touched or observed by means of the senses (land, books,
etc). Only corporeal things were susceptible to ownership and possession
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