Main Notes
Essential explanation, important notes .
Citation (institutes/textbooks)
Judges/ Academics
Cases
Definitions
Link to Essays/ Academic disputes .
Contents Page
1: Sources and Procedure
Key Dates
Political History
Types of Law
Legal History + Sources of Law
Statute (Lex)
Edicts of magistrates
Roman Litigation
Juristic Interpretation
Legal Works
The Law of Persons
2: Acquisition of Property
Law of Things
Original Acquisition: acquisition out of thin air
Occupatio
Treasure
Specificatio
Accessio
Adiudicatio
Fructum Perceptio/Separatio Fruits
Prescriptive Acquisition
Usucapio
Longi Temporis Praescriptio
Longissimi Temporis Praescriptio
Derivative Acquisition
Mancipatio
Cessio in iure
Traditio
3: Ownership, Possession + Remedies
Ownership
Possession
Actio Publiciana
4: Property Concepts
Praedial Servitudes
Personal Servitudes
Creation, Protection and Termination of servitudes
5: Oral, Written and Real Contracts
, Obligations
Law of Contracts
Law of Contracts, not law of contract
Development of the Law of Contracts
Features of the Roman Law of Contracts
Factors Vitiating Consent
Stipulatio
6: Consensual Contracts
Emptio venditio (sale)
Locatio Conductio (Hire)
Hire of Services (locatio conductio operarum)
Hire of a piece of work (locatio conductio operis)
Societas (Partnership)
Mandatum (Mandate)
Innominate Contract
Permutatio (barter)
Aestimatum (brokerage)
Precarium (grant at will)
Transactio (compromise of a legal dispute)
Pacts
Quasi-Contracts
7: Delicts - Furtum, Rapina and the lex Aquilia (Supo 7)
Furtum (Theft)
Rapina (Robbery)
Damnum Iniuria Datum (Loss Wrongfully Caused)
Iniuria
Noxal Surrender
Liability for Animals
8: Delicts - Praetorian Delicts and Quasi-Delicts
Praetorian Delicts: Metus, Dolus and Servi Corruptio
Metus (Duress)
Dolus (Fraud)
Servi Corruptio (Corruption of Slaves)
Quasi-Delicts
Judge making case his own
Liability for things thrown/poured out
Liability for objects hung/suspended from building
Ship Owners, Innkeepers, Stablekeepers
Essays
Essays: Sources and Procedure
Essays: on delict/contract/both
Essays: Property (Possession, Ownership, Servitudes and
Acquisition)
List of Actions:
Actio furti: reclaim damages from theft penalties are 4 times for manifest or 2
times for non-manifest (see theft)
, Actio furti oblate: against person who placed stolen item in your possession, and you
were discovered
Condictio furtiva: recovery of equivalent value of stolen property
Condictio: action for breach of stipulatio for a certain thing/amount of money
Actio ex stipulatu: breach of actual procedure of stipulation meant there was
leeway in determining amount of damages owed
Actio utilis: action where damage was caused but not covered under the lex Aquilia
Actio de tigno iuncto: has more or less the same action as the act for theft- 2 or 4
times the value. Can’t sue for theft as well as this
List of Defences:
Exceptio Doli: complete defence that fraud vitiated a contract (doesn’t apply to bona
fide contracts)
Exceptio quod metus causa: complete defence that duress vitiated a contract
(doesn’t apply to bona fide contracts)
Key Terms
Authority: legal and practical authority/formal and informal authority
Obligation:
Statute: law formally enacted with a body or entity vested with legislative power
within its legislative capacity
o ‘force of statute’ vs ‘actually being statute’
Lex
Possession: legal vs factual possession
o Legal = animus and corpus whereas factual = mere detentio
1: Sources and Procedure
Essays: Sources and Procedure
Key Dates
Expansion of Roman territory across Italy 493BC-266BC and beyond Italy 280BC-146BC
Exceptio doli added to edict – 1st Century BC
287 BC: assembly of the plebeians can enact legislation concerning all citizens (Lex
Hortensia)
140 BC: Lex Aebutia enacted which recognised that Roman citizens could resolve their
disputes using the system created to resolve disputes involving non-Romans, which the
peregrine praetors had developed.
131 AD: Perpetual edict commissioned, and urban Praetor no longer developed any new
laws
212 AD: The Constitutio Antoniniana awarded citizenship across territory
286 AD: Roman empire divided in two with two co-equal emperors
527 - 565 AD: Justinian’s reign
,Key Jurist Dates:
Gauis, Papinian, Paul, Ulpian
Political History
Monarchy
King (rex): range of powers including war leader, law maker, supreme judge, etc.
Senate (senatus): council of patricians who advised the king and nominated his heir
Assembly (comitia curiata): confirm king in office and vest authority in him
(succession was not a hereditary right)
Republic
Magistrates:
o Consuls (2):
Role: presided over all areas of govt and could veto one another
Appointed for one year only
as other magistrates were created, their power reduced
issue: inherently flawed – joint magistracy and magisterial right of
veto (magistrates may turn out to be rivals) (Mousourakis, legal
history)
o Praetors:
Role: run trials, promulgating the edict - dealt exclusively with the
administration of justice
appointed for one year only
Urban Praetor (created 367BC): oversaw legal disputes between
citizens
Peregrine Praetor: oversaw legal disputes involving at least one
foreigner (obsolete after the constitution antoniana)
o Quaestors: responsible for financial matters + taking part in the administration
of criminal jurisdiction
o Censors: classified romans according to wealth, tribal background and
military ranking
o Tribunes: (plebeian) magistrates elected to represent the plebeians, were
members of the senate and presided over the concilium plebis (the plebeian
legislative assembly) and they had the right to veto the acts of the other
magistrates
o Aediles: exercise care over the city and its inhabitants e.g. ensuring adequate
supply of water, maintaining public roads and buildings etc.
Curule Aediles: specialised magistrates that regulate the market
Senate
o permanent body, do not rotate a lot like magistrates experts (like HoL)
o senate exercised a large measure of control over magistrates and the state’s
finances and foreign relations, though it lacked the authority to make law
o convention that magistrates had to consult Senate on all important matters
Assemblies:
o Could approve/reject legislation proposed by magistrates
, o comitia centuriata and the comitia tributa were composed of the entire citizen
body, direct voting, not representative - by groups, rather than individually -
only had a yes/no vote to proposals already approved by senate, no room for
debate and patrician votes were weighted more than others
class warfare: complaints that magistracy of the earliest years of the republic was
entirely in the hands of patricians and resolutions of the plebeian assembly (plebiscita)
were not binding on the whole people but only on plebeians legal concessions
made
territorial expansion: rome expanded across and past Italy
o consequences:
loyalty of Roman allies strained as Rome became less generous in
conferring citizenship → led to a revolt which was eventually crushed
Rome conferred citizenship to all across Italy
constant war to protect territory and allies
huge wealth + slavery came into Rome fundamental cultural
transformation
Empire: Principate and Dominate
empire in this context = an autocratic state
The Principate (and Augustus)
new form of imperial govt where the continued existence of old republican institutes
camouflaged the growth of imperial power
o importance of republican institutes waned
emperor/1st citizen: exercised ‘kingly’ powers previously divided among elected
magistrates – was able to develop, judge and administer the law
republican magistrates continued to hold office but became side-lined by new
imperial officers and peregrine praetor role abolished as citizenship was extended
senate: became a passive + subservient tool of imperial will – could now enact
legislation for all citizens but this was generally proposed by or approve by the
emperor
three popular assemblies: retained authority for enacting legislation, but stopped
being convened to do so during the 1st century AD
Dominate:
openly absolute rule
society characterised by a rigid class structure which determined legal/financial/
political privileges
286 AD: roman empire divided in two, with 2 equal co-emperors
Emperor/Lord: exercised ‘kingly’ powers as a semi-divine figure atop an expansive
bureaucracy.
Republican magistrates: a few continued to hold office, but with little actual power.
Senate: a largely ceremonial body.
Three popular assemblies: a distant memory
Types of Law
, Three main classifications of law
o ius publicum and ius privatum
o ius civile, ius gentium & ius naturale
o law of persons, of things and actions
Ius civile
o Only applied to roman citizens (G.1.1) and stemmed from the 12 tables
o The first praetorial edicts were a source of the ius civile
Were an inferior source because an edict could not contravene lex
Ius gentium
o Applied to all equally (foreigners included)
o Based on natural reason (G.1.1)
o Peregrine praetor developed it so also a subset of ius honorarium
o Peregrine praetor ideas also fed into law developed by the urban praetor
o After Lex Aebutia edicts of urban praetors became a source of ius gentium
Still an inferior source of the ius civile
Ius honorarium: magisterial law, includes the praetor’s edict (J.1.2.7)
Ius naturale: natural law – abstract ideas, less applicable to actual problem solving
o Similar to ius gentium – apart from on the issue of slavery
o Fixed whereas law established by states can be changed by either: tacit
consent of the people/subsequently enacted law (J.1.2.11)
Legal History + Sources of Law
Sources of law: origin/authority from which laws derive their authority
laws were made under 3 broad heads: statutes, edicts of magistrates and the
interpretation of the jurists (Gaius) legislative, procedural and juristic
+ maybe custom?
Custom Justinian says this is a source of law (I.2.9)
archaic period (510BC-100BC)
‘prescientific’ (Ibbetson)
Initially a source of law in itself, later became a source of law derivative on other
sources
‘scarcely existed’ between 12 tables and insititutes
Early monarch days – cases may be decided by ordeals (Stein)
law was a set of unwritten customs that could only be applied roman citizens (ius
civile) (Stein)
where application of customary law was doubtful, interpreted by pontiffs (all
patrician) which were often biased (did not provide reasons, simply administered the
law → plebeians demanded publishing of the law → twelve tables created (Stein)
319 AD, Emperor Constantine (c.8.52(53).2): authority of custom recognised as long
as it did not conflict with written law (in line w Julian’s view in classical period)
E.g. Cognitio procedure = judicial precedent? + praetor building on previous edicts +
mancipatio + paterfamilias rules + delict (see below) + constitutio antoniana
Through the time periods
Early law: Almost entirely customary
