II. Causa und titulus

Causa and titulus. Qualifications of possession and a change of terminology in Ulp. D. 5,3,13,1. – In D. 5,3,13,1, Ulpian states that every title to possession (like pro emptore, pro donato etc.) could be accompanied by a general title pro possessore, which becomes decisive if the other title failed. The text is interesting in two aspects: First, it is one of only a handful of classical texts which speak of titulus instead of causa possessionis. Therefore, the text is still today suspected of interpolation. Second, it is heavily disputed which circumstances lead to a possession pro possessore and why this typolology is used at all. This article proposes a solution to both problems. The pro possessore terminology can only be assessed correctly if we focus the procedural position of the possessor, especially in the realm of the hereditatis petitio. The new terminology (titulus) is a mere consequence of the fact, that the burden of prove is assigned according to the ,title‘ of possession indicated by the possessor, not by the real (and possibly unprovable) cause.

Zwischen Infektionsschutz und Schutz des Erblasserwillens: Das sogenannte testamentum tempore pestis conditum in C.6,23,8 (290)

Protecting the testator’s last will in times of a contagious disease: The so-called testamentum tempore pestis conditum in C. 6,23,8 (290). This paper revisits C. 6,23,8, a constitution by emperor Diocletian from 290 CE on the subject of alleviated testamentary formalities in times of a contagious disease. It is argued that the imperial rescript is to be understood against the background of an epidemic raging at that time, maybe to be identified as the smallpocks. With this constitution, it is further argued, the emperor clarifies that a former piece of legislation, not passed down to us, exempts the testamentary witnesses in such times from assembling as a group with the person of the testator, while there is no exemption from the general requirement of calling in the accustomed number of witnesses. Thus, the emperor takes account of the testator’s need to stipulate his last will in times of crisis while at the same time having an eye to the witnesses’ fear of contagion.

IV. Totenfürsorge als Geschäftsführung ohne Auftrag? Actio funeraria und postmortaler Persönlichkeitsschutz

Burying the dead as management of another´s affairs. Actio funeraria and the protection of personality rights post mortem. The paper discusses the history and the function of the Roman actio funeraria. It is argued that the claim for reimbursement of the funeral of another person is historically older than the recognition of negotiorum gestio at large and can be seen as a precursor of the actio negotiorum gestorum.

V. II principio dell’irretroattività della legge nell’esperienza giuridica romana dell’età repubblicana

The Principle of the Irretroactivity of the Law in the Roman Legal Experience in the Republican Age. Through an in-depth analysis of literary and legal sources (primarily Cicero) and of epigraphic evidence, the author demonstrates that the principle of the law’s non-retroactivity was known to, and applied by, the Romans since the Republican age. The political struggle favored on several occasions the violation of this principle by imposing an extraordinary criminal legislation, aimed at sanctioning past behaviors of adversaries. But, although with undeniable limits of effectiveness in the dynamic relationship with the retroactivity, the author acknowledges that at the end of the first century BC non-retroactivity appeared as the dominant principle, consolidated both in the field of the civil law as well as substantive criminal law.