11. Roman Law and the European Ius Commune

The term European ius commune (in its historical sense) signifies that, from the fourteenth to the start of the sixteenth centuries, most of Europe shared a common legal tradition. Many local and regional variations on the law existed, but the terminology, concepts, and structure provided by elements of Roman law provided a common framework. This chapter traces how Justinian’s codification came to influence the modern world. The influence of Roman law in the modern world is immense: it constitutes the historical and conceptual basis of many legal systems throughout the world. Its impact has not been confined to those countries in Western Europe that historically formed part of the Roman Empire. Wherever Europeans went, they normally took their law (usually based to some extent on the principles of Roman law) with them.

8. Inheritance

This chapter discusses the Roman law of inheritance. It covers intestacy; making a will; heirs; legacies; testamentary freedom; the failure of wills, heirs, and legacies; and codicils and trusts. The importance of inheritance as a means by which property can be acquired is obvious. A Roman citizen might easily pass through life untouched by the rules, say, of usucapion or accessio, but he could not escape the operation of the law of inheritance (or at least his estate could not when he died). And he would often have inherited property himself on the death of family members or friends. Moreover, inheritance, unlike most other forms of acquisition of property, involved the transfer of the whole of a person’s property.

7. Acquiring Ownership

This chapter discusses the acquisition of ownership in Roman law. It covers derivative modes of acquiring ownership; original modes of acquiring ownership; and gifts. The methods of acquiring ownership inter vivos can be classified in a number of ways. For example, some methods can be described in modern civilian systems as ‘original’—where the acquisition of ownership did not depend on there being a prior owner—whereas others were derivative, i.e. where ownership was derived from a prior owner. Or some methods were formal, others causal: in the former case ownership passed because of the use of particular form and ceremony, whereas in the latter case ownership depended on the ground or ‘cause’ of the acquisition.

5. The Roman Family

This chapter is devoted to the Roman law of persons and family. As in modern legal studies, so in Roman law, it is the first branch of private law that students are taught, primarily in order to understand the concept of ‘legal personhood’. This chapter covers the paterfamilias (head of the household); marriage and divorce; adoption; and guardianship. The head of the household was the eldest living male ancestor of a specific family. He had in his power (potestas) all descendants traced through the male line (and also exercised forms of control over other members of the household). Roman law accorded the head of the household extensive legal entitlements, not only vis-à-vis the members of the household, but also its property. The motivation of this state of affairs lies in the recognition in Roman law of the family unit as legally significant entity.

3. Roman Litigation

This chapter begins with a discussion of the perils of litigation in early Rome. It then describes the legis actiones, the five early forms of action in Roman law. All the legis actiones were characterized by strict formalism and were only available to Roman citizens. The actions-at-law were the foundation of early civil procedure. However, the excessive formality, archaic nature, and limited effectiveness of the legis actiones made it unsuitable in the long term for a rapidly expanding, economically vibrant Rome. The system fell largely into disuse in the late Republic and was formally abolished by Augustus in 17 BC, by which time the formulary procedure had long become established. The formulary system remained the operative system of civil procedure well into the Empire but was later abolished in favour of the cognitio procedure; its operation is considered in its developed form in the later Empire.

1. Introduction: Rome—A Historical Sketch

This chapter provides a historical sketch of Rome. It has been written to provide a contextual basis for the study of Roman private law. The history of Rome is traditionally divided into three main periods based on the dominant constitutional structure in Roman society during these three periods. These are the Monarchy (eighth century bc–510 bc), Republic (509–27 bc), and Empire (27 bc–ad 565). Scholars of Roman law tend to refine this division even further. Thus, to the scholar of Roman law, the period from the founding of Rome in the eighth century bc–c. 250 bc is regarded as the ‘archaic’ period of Roman law. The period thereafter, from c. 250 bc–27 bc, is generally described as the ‘pre-classical period’ of Roman law.For scholars of Roman law, the ‘classical’ period, c. first three centuries AD, and the Justinianic period, c. sixth century AD, are the most important, owing to the compilation of ‘classical’ Roman law by order the Byzantine Emperor, Justinian, in the sixth century.

9. Obligations: Common Principles and Obligations Arising from Contracts

This chapter discusses the Roman law of obligations. The ‘obligation’, as a seminal part of Roman (and indeed modern) private law, is a legal tie created between individuals on account of voluntary interactions (such as contracts) or involuntary interactions (such as delicts). It begins with a general discussion of the nature and classification of obligations. This is an important aspect of the discussion as it links this particular branch of private law to other areas of Roman private law. It then covers the general features of Roman contracts; consensual contracts; verbal contracts; contracts re; contracts litteris; innominate contracts; pacts; and the quasi-contract. The next chapter is devoted to the other source of obligations, namely delicts and quasi-delicts. These two sources of obligations, namely contract and delict, form the substance of the law of obligations.

6. Interests in Property

This chapter deals primarily with the various interests that could be acquired in property, particularly ownership, rights to servitudes, and possession. The Roman law of property is one of the lasting and important legacies of their legal order and has had a profound impact upon modern legal systems across the world. This chapter begins by considering the Roman classification of property. This was the intellectual starting point in the teaching manuals preserved from the classical period of Roman law. The purpose of this exercise in classification was to demonstrate that certain objects fell outside the sphere of private ownership. Apart from issues of classification, this chapter deals primarily with the various interests that could be acquired in property, particularly ownership, limited real rights over the property of others, such as rights to servitudes, and possession. It deals with the legal rules governing these institutions and their interrelationships. In theory, the interests in property may be divided into two broad categories, namely legal interests (ownership and limited real rights) and factual interests (possession). While such a division is useful, it should not be seen as absolute, since possession, though largely a question of fact, could also have certain legal consequences. But first the Roman classification of property must be considered.

4. Status, Slavery, and Citizenship

Legal status lay at the heart of the law of persons. Rome developed into a highly stratified society in which the different gradations of status were reflected in a myriad of detailed rules. So, the law of persons describes the various categories and degrees of status in Roman law, and how status could be acquired or lost. Issues such as slavery and citizenship are fundamental, but the bulk of the law is concerned with the family. This chapter first considers the question of legal personality. It then discusses the rules on status; freedom and the law of slavery; and the legal position of free persons: citizens and non-citizens.

10. Obligations Arising from Delict

This chapter discusses the Roman law of delict. It covers wrongful damage to property; theft and robbery; insulting behaviour; praetorian delicts; liability for damage caused by animals; and the quasi-delict. A delict, as one of the main sources of an obligation, can be defined in broad terms as a wrongful act which causes damage to someone’s personality, his family, or his property, and for which the victim or his heirs is entitled to compensation. There is an obvious parallel between the Roman delict and the common law tort; but the analogy should not be pursued too far since the Roman law of delict had a strong penal element—the law penalized the conduct of the wrongdoer, as well as ensuring that the victim was adequately compensated.