Exam (elaborations)
Roman Law and Society Final Exam (1)
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Roman Law and Society Final Exam (1)
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Roman Law and Society Final Exam-protecting the gift
-b. Legacies per damnationem
-protection for legatee: actio ex testamento against
heir (x2 if heir denied and lost) - ANS-Actio ex testamento
an action given by the praetor on the facts of the case alone where no standard civil law action
was applicable. - ANS-Actio in factum
-mistakes in good faith
-bona fide possession: non-owner → legal conveyance → recipient + bona fides
mistakes in bad faith
-*lex Atinia (2nd c. BC): property is stolen → no bona fide possession allowed - ANS-Bona fide
possession
unclaimed estate - ANS-Bona vacantia
mistakes in good faith
-bonitary ownership: owner → flawed conveyance or traditio → recipient - ANS-Bonitary
ownership
deal done right
-Formal: mancipatio (witnesses, scales, and scale-holder) & cessio in jure (magistrate)
megistrate - ANS-Cessio in jure
-Codicils - need testamenti factio; cannot appoint heirs; often for setting up trusts - ANS-Codicil
damage
-forms of delict
-damage (damnum iniuria datum) = Lex Aquilia (c.287 BC) - ANS-Damnum
-General Characteristics: person-to-person duty, unilateral
-a private wrong, as opposed to a public wrong called "crime" (crimen)
-refers to a wrongful act or a civil wrong - ANS-Delict
-Protection and Restrictions
-fear and fraud (metus and dolus) void bona fide, make stricti iuris voidable
-Praetorian delicts - fear (metus, c. 80 BC) and fraud (dolus, c. 66 BC)
-fraud - ANS-Dolus
, -propriatary contracts
-emphyteusis - perpetual or long-term land lease, defendable by modified vindicatio against
other possessors - ANS-Emphyteusis
-Omission (see Case 2): disinherison must be explicit; leaving out suus heres invalidates will
-disinheriting a will - ANS-Exheredatio (disinherison)
Rise of Codicils and Trusts (fideicommissum, pl. fideicommissa)
-a testamentary disposition, by which a person who gives something to another imposes on him
the obligation of transferring it to a third person - ANS-Fideicommissum
types of heres
-note: universal succession means assuming property, rights, and liabilities of the estate
-suus et necessarius heres (pl. sui et necessarii heredes)
whoever becomes sui iuris when testator dies, including children, adopted children, children in
utero, grandchildren, wife in manus marriage
cannot decline if appointed unless by ius abstinendi, which entails legal and social
consequences
-heres necessarius
a single, named slave whose manumission is contingent on accepting inheritance; helps to
avoid bona vacantia including in case of damnosa hereditas
-heres extraneus
everyone else named as heir, including wife in free marriage, other family, friends, etc. -
ANS-Heres (pl. heredes) - suus et necessarius, necessarius, extraneus
Insult (iniuria) - through contumacious behavior whether physical or verbal (oral or written) -
ANS-Iniuria
-controlling succession
-safegaurds
-jus abstinendi allows suus heres to abstain from accepting an indebted or insolvent estate -
ANS-Jus abstinendi
-protecting the gift
-Legacies per damnationem
- heir(s) charged to assign legacy (not automatic)
- form in will: [name of heir(s)] damnas est ('be charged to give') [name of legatee]
- protection for legatee: actio ex testamento against heir (x2 if heir denied and lost)
-Legacies per vindicationem
- automatic to legatee (unless conditional)
- form in will: do et lego [name of legatee]
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