Faculty of Law, University of Auckland, Auckland, New Zealand
From an early stage in the development of Roman society, the term ius (plural, iura) signified that which is due in human relations—the rightful power of a community member to act in a certain manner vis-à-vis his fellow citizens. It referred to a course of conduct that the community would take for granted and in that sense endorse. The community had a general awareness of the circumstances when acts would be construed as iura and these were established by custom. Originally, the exercise of ius had no connection with state organization and thus ius was defined as any instance of approved self-help. After the consolidation of the state and the establishment of a formal system of justice, ius denoted the rules or norms capable of enforcement with the consent of those responsible for safeguarding and maintaining the norms governing community life. Thus the holders of imperium had the essential functions of pronouncing the ius and assisting those with rights to obtain their entitlements through formal channels. The earliest form of legal procedure was the act whereby a person who possessed or claimed a ius against another requested a jurisdictional magistrate to both confirm his ius and enable its exercise by effectively suppressing an opponent’s resistance. Roman law developed primarily as a private law that was devised as a system of rights or claims bolstered by causes of action and specific procedural remedies.
When Roman legal thinking evolved to perceive the various protected powers as a system, the term ius resembled our modern meaning of the word ‘law’ in a broad sense: the entire system of norms by which the rights and concomitant powers of community members are defined, protected and enforced. Furthermore, ius, or law in a broad sense, was construed to embody a strong normative element reflecting the relationship between law and justice (iustitia).1 In this broad normative sense ius is not the same as morality nor as positive law; rather, it is right law, or positive law as it ought to exist in light of what morality and justice ordain.2 Ius, as defined above, was distinguished from lex (plural leges). The latter term signified a law created by a competent legislative organ of the state in conformance with a prescribed procedure. A lex, which by definition pertained to a specific type of legal relationship, drew upon ius but was not identified with it. The normative principles of ius that determined the question of lawfulness or unlawfulness were not reducible to the body of formally enacted laws. These principles were regarded as pre-existing and transcending the enacted law, which merely prescribed the method for implementing ius under certain circumstances. Unlawfulness was defined primarily in relation to ius, for an unlawful act was deemed to encroach upon the principles of ius that informed the particular legislative enactment encompassing the act. From this viewpoint, the word iniuria signified any infringement of the law comprised of an act performed ‘contra ius’. Furthermore, the application of a lex was typically strict as an act or dispute was tackled according to the letter of the law without reference to the circumstances of the individual case. On the other hand, the norms of ius were construed as flexible and thus adaptable to the circumstances of each particular case. Whereas the implementation of a lex was based on formal criteria, the implementation of ius was anchored in its intrinsic rightness.
As previously noted, the term ius civile or ‘law of the state’ was used to denote the law that each state had established for itself and was peculiar to it. The law peculiar to the Roman state was originally that derived from custom and legislation, and applied only to Roman citizens. However, as the Roman state expanded and social and economic relations grew more complex, the law that applied in Rome came to be derived from a great variety of sources, including the edicts of the foreign and urban praetors. Nevertheless, although Roman law expanded in scope, some traditional legal institutions (such as conveyance by mancipatio) remained open only to Roman citizens. Such institutions were deemed to belong to ius civile in a narrow sense, while other institutions (such as conveyance by traditio or simple delivery) were considered to belong to the law of all peoples (ius gentium) in the sense that they were open to non-citizens and citizens alike. As earlier observed, this technical distinction disappeared after the extension of the Roman citizenship to all free inhabitants of the empire in the early third century ad. A further contrast mentioned by the classical jurists is that between ius civile and ius honorarium, the law derived from the edicts of the magistrates. In this context, the term ius civile was understood as encompassing not only the rules derived from custom and legislation, but also those that emanated from the interpretations of the jurists, the resolutions of the senate and the constitutions of the emperors.
With respect to the subject matter of law, the Roman jurists recognized a distinction between public law (ius publicum) and private law (ius privatum). Public law was concerned with the organization and administration of the state and the interests of the Roman people as a whole. Under the heading of public law fall criminal law, constitutional law, administrative law and the law governing the conduct of religious affairs (ius sacrum). Private law, on the other hand, comprised those branches of law concerned with the rights and duties of individuals and regulating their personal and proprietary relationships.3 Although the classification appears intelligible and convenient, there are points at which public law and private law overlap. Such overlap occurred, for instance, when a general public interest concurred with a private one. It should be noted that private law greatly overshadowed public law in both its intrinsic merit and subsequent influence. This is because private law had a dominant role in the development of legal norms and was the chief interest of the jurists, the most creative element in Roman legal life.
Private law is classified by the compilers of Justinian’s Institutes into three branches: the law of persons, the law of things and the law of actions.4 This classification, which has permeated all subsequent legal thinking, is repeated from the Institutes of Gaius5 and was in all likelihood entrenched by tradition. The law of persons, sometimes described as the law of status, denotes that part of the law concerned with the legal position of the human being, their rights, capacities and duties. It encompasses much that in modern law is termed family law, as well as the rules governing marriage and guardianship. The law of things is concerned with the rights and obligations generated by the use and exploitation of economic assets and covers what in modern law is termed the law of property, the law of contract, the law of delict and the law of succession. Finally, the law of actions deals with the remedies by which legal rights were protected and the procedures by which the relevant legal judgments were enforced.
3.2 The Law of Persons
The Roman law of persons was concerned with the status or legal position of the human being. It can be defined as the body of legal rules relating to a person’s rights, capacities and obligations as an individual, as a member of the community and as a member of a particular family. It dealt with the issues of liberty and slavery, citizenship, family status, as well as other factors such as age, sex or mental state that were relevant to determining a person’s legal position.6
In classical law the term person (persona) denoted simply a human being (homo), and hence even slaves were considered persons, despite the fact that a slave was a legal object or object of rights and duties, in contrast with a free person who was a legal subject or bearer of rights and duties.7 A persona originated at birth and terminated on death.8
3.2.1 Status Libertatis
At the centre of the Roman law of persons lay the distinction between those who were free (liberi) and those who were slaves (servi).9
Liberty, enjoyed by those who were either freeborn or freed persons, was defined as “the natural ability to do anything one pleases unless it is prohibited by force or law.”10
It is important to note here that the Romans were deeply aware of the limitations imposed on individual liberty by their collective existence and considerations of public welfare (salus publica). The scope of liberty was conditioned by the need to safeguard the social order to which each citizen had to subordinate his own rights. Liberty was perceived by the authority-minded Roman community as freedom within the established socio-political order and not outside, let alone against it. The all-pervading notion of authority (auctoritas) was the natural and indispensable complement of liberty, setting limits to the free expression of individual impulses or choices. From a Roman moral perspective, submitting to the authority of one who manifested the ability to lead was considered the test rather than the negation of liberty. Where the authority of the leader was reciprocated by the genuine loyalty (fides) of the follower, order with liberty or liberty within order could prevail. This relationship supplied the foundation of the Roman concept of discipline: subordination by free will and reason rather than by force or compulsion. To the Romans discipline was the indispensable basis of order and liberty. In this respect, differences of rank and social status were considered to be the natural consequences of a well-ordered society by no means incompatible with liberty. The notion of civil liberties as a private sphere protected against interference by the state was wholly alien to the Romans, for it was incompatible with a civilization that attributed the highest value to the state. And yet, on the whole, Roman society during the republican and early imperial epochs was far from totalitarian. Instead, it presents the picture of a laissez-faire society in which each law-abiding citizen could lead the life that his talents, means and desires dictated. In many respects, the Roman citizen enjoyed a security of existence equal to any modern constitutional order: he was protected against illegality by the scrupulous observance of the rule of law enjoined on all state officials; he could neither be arrested nor convicted arbitrarily; and his private property rights were upheld. The magistrates’ power of enforcement could be exercised only to secure obedience to lawful demands and the autonomy of private life was generally respected.
The most vulnerable group in Roman society were the slaves (servi).11 In the early republican period a relatively small number of slaves lived in Rome; but from the mid-third century bc the slave population expanded rapidly and, by the end of the Republic, slave labour was the predominant factor in economic life.12 The living conditions of slaves varied considerably, depending on their personal skills, education and place of work.13 In general, urban slaves were treated better than rural slaves and were more frequently released from slavery. But the vast majority of slaves, especially those working on the large estates, lived in misery and were treated harshly by their masters.14
Slavery could arise in a number of ways, the principal of these being birth from a slave woman,15 capture in war16 and as a punishment. A slave was considered to be both a person (persona) and a form of property (res) legally existing as the object rather than the subject of rights and duties. As he was the property of his master (dominus), he lacked legal capacity and this theoretically entitled the master to govern the slave as he pleased.17 A slave could not contract a lawful Roman marriage, had no standing in the courts and their offspring immediately became the property of the slave’s master. However, slaves had limited contractual capacity attached to the condition that whatever they acquired accrued to their masters.18 It should be noted also that initially a slave could not impose legal duties on his master by his actions. From the republican period, however, the praetor could intervene and grant certain praetorian actions, labeled actiones adiecticiae qualitatis (such as the actio de peculio and the actio de in rem verso), against the master and in favour of third persons who had entered into dealings with a slave. Furthermore, a master could be rendered liable for the delicts of his slave on the grounds of an actio noxalis.
A slave could be released from slavery (manumissio) in three ways: by a formal announcement by the master in public and before a higher magistrate (usually a praetor) that the slave was free (vindicta); after the enrolment of a slave as a Roman citizen by the censor, according to the master’s request (censu); and under his master’s will (testamento). Besides these legally recognized ways of manumission, there were other informal ways of liberating slaves, e.g., when a master in the presence of his friends declared his slave to be free (manumissio inter amicos); or when he expressed such a wish in a letter (manumissio per epistulam); or even when he shared his table with his slave (manumissio per mensam). Although these methods of liberation provided little security for the slave, if he could prove that the relevant actions transpired he could then refuse to return to slavery by appealing to the praetor.19 Liberated slaves or freedmen (libertini, liberti) were Roman citizens, but enjoyed fewer social and political rights than those with no slaves in their ancestry. Nevertheless, many freedmen successfully earned a steady living through their involvement in trade, industry and the arts; some even gained access to positions of power, especially in the last century of the Republic and during the Principate.
3.2.2 Status Civitatis
Roman citizenship (civitas Romana) was that status whereby a person was entitled to the rights and was subject to the duties of Roman law. The issue of citizenship may be more appropriately addressed in a discussion of constitutional law, yet, in the field of private law, it had important consequences for those individuals who were privileged to occupy the status of a Roman citizen (civis Romanus).
Roman citizenship was usually acquired by means of conception during a Roman marriage or birth from an unmarried Roman mother. Furthermore, citizenship could be acquired by the formal liberation of a slave by his master (iusta ac legitima manumissio) and by law or decree by the authorities. During the Republic, the citizenship was initially granted to individuals and whole communities in only special instances and after the Social War (91–87 bc) it was granted en masse to all Italian allies. Augustus attempted to put a brake on the expansion of citizenship by designing a population policy that sought to preserve the Roman and Italian stock as the core of the empire. This entailed the sparser granting of individual naturalizations to foreigners whilst attempting to stem the flood of emancipated slaves. However, the realities of a coalescing empire forced upon his successors standards that were more elastic. Once Rome, Italy and the provinces had entered the stage of mutual assimilation, the citizenship was granted with increasing frequency to individuals or whole communities, often following the concession of the ius Latii (the intermediate legal status between citizen and foreigner given to members of Latin colonies). At the end, rather than being a conscious method for furthering Romanization, the extension of the citizenship to the provincials was its unavoidable result. It may seem, therefore, merely the logical culmination of a process in the making for centuries that Emperor Caracalla issued an edict, the celebrated constitutio Antoniniana (ad 212), by which he bestowed Roman citizenship upon all the free inhabitants of the empire who were members of organized communities. The constitutio Antoniniana signified the final transformation of the traditional civitas into empire citizenship and led to the extension of Roman law to the whole empire.
Depending on their age, gender and mental capacity, freeborn Roman citizens (cives Romani ingenui) enjoyed a number of legal capacities or rights. In public law, these citizens had the right to vote in the popular assemblies (ius suffragii); the right to stand for public office (ius honorum); and the right to occupy military offices in the Roman legions. In private law, they had the right to contract a legal Roman marriage (ius conubii); the right to enter into legal transactions and conclude valid legal acts relating, for example, to the conclusion of contracts and the acquisition of property (ius commercii); and the right to litigate before the Roman courts. In addition, certain financial rights and privileges were reserved for freeborn citizens only. A person entitled to all the rights of the citizenship (ius civitatis) was referred to as civis optimo iure. However, not all Roman citizens were cives optimo iure. Roman women, for example, did not possess the ius honorum and the ius suffragii, and their contractual capacity initially depended on whether or not they fell under the authority (manus) of their husband. Similarly, freedpersons (libertini) were subject to various restrictions: they were excluded from all the important offices of the state, could not serve in the legions and could not contract a lawful marriage with a member of the senatorial aristocracy.20 Furthermore, only some of the relevant rights were held by persons granted by law limited citizenship, such as the members of certain communities or individuals in Italy and overseas.21
3.2.3 Status Familiae
The cornerstone of Roman society was the family (familia), a closely-knit unit corresponding very largely to the nuclear family of our own times. The status familiae, one’s position in or out of a family unit, was the factor that determined the question of whether a person was independent (sui iuris) or subject to the control of another (alieni iuris). The alieni iuris persons were under the authority of the father of the family (paterfamilias), the oldest male member of the family, who was entitled as a person sui iuris to enjoy the maximum number of rights or capacities that a Roman citizen could possess. The paterfamilias was the pivot of the Roman family system, as his power and authority (patria potestas) over the members of his family was the tie that held the family together. Usually, the paterfamilias had authority over his wife (uxor), provided that she had been married to him by virtue of a cum manu marriage22; his children23; his grandchildren and further descendants from marriages of sons in his potestas; his legitimized and adopted children; as well as slaves or other individuals similarly dependent on him.24 The term agnatio denoted the relationship between all persons under the potestas of the same pater, or persons who would have been under such potestas if their common paterfamilias had still been alive.25 Regarding persons under the patria potestas, it should be noted that a blood relationship (cognatio) was irrelevant in early Roman law but gradually evolved as a factor of central importance in the time of Justinian (especially in the field of intestate succession).
Originally, the power of the paterfamilias over his dependants was theoretically almost unlimited. He had the power of life and death (ius vitae necisque), that is, the power to kill his children, sell them into slavery or simply abandon them if he so wished. Furthermore, he could marry-off or forbid the marriage or divorce of a dependant as well as give them away for adoption or emancipate them. Finally, his dependants were financially completely dependant on him, since they could not own or acquire any property of their own. Everything a dependant acquired or already had in his possession was deemed the property of the paterfamilias. However, an exception to this rule emerged in respect of the male descendants of the paterfamilias—the filiifamilias.26 Like competent slaves, the filiifamilias were allowed de facto enjoyment of a peculium, a term denoting an estate consisting of various forms of property that gradually became considered, for all practical purposes, the property of the filiifamilias.
The patriapotestas came to an end in a number of ways. The most common mode was the death of the paterfamilias or a change in his status following a capitis deminutio (e.g. loss of citizenship).27 Moreover, when a daughter entered into marriage cum manu she immediately fell under her husband’s authority. The patriapotestas also terminated when the paterfamilias gave his child to another for adoption (in adoptione),28 or when he released such child from his paternal power by means of the formal emancipatio process.29
As Roman society evolved over the course of time, the power of the paterfamilias over his dependants considerably decreased. The ius vitae necisque became obsolete and was abolished30 together with the father’s power to sell his dependants into slavery.31 At the same time, various duties were placed on the head of the family with regard to his dependants, such as the duty to provide maintenance and the duty to give his daughter a dowry (dos) when she entered into marriage.32
3.2.4 Capitis Deminutio
The loss or impairment of an individual’s social and political rights was known as capitis deminutio and entailed a curtailment or change of status (status permutatio).33 The Roman jurists distinguished between three forms or degrees of capitis deminutio: maxima, media (or minor) and minima.34
Capitis deminutio maxima was the loss of personal liberty, which also entailed a loss of citizenship and family ties. A Roman citizen could be sold into slavery if he committed certain grave offences, including offences connected with military service (such as desertion to an enemy) or for willfully avoiding enrolment in the censor’s books in order to evade taxation.35
A capitis deminutio media (or minor) entailed loss of citizenship but no loss of freedom. In early times, this occurred when a man went into exile or became a member of a foreign state. Under the Empire, a sentence of deportation (deportatio) to an island had the same effect.36
Finally, the capitis deminutio minima involved an alteration in a family relationship which occurred when a person’s family ties were dissolved either by their entry into another family (by adoption, adrogation or the cum manu marriage of a woman) or by becoming sui iuris and the head of a new family following his emancipation.
Marriage in Rome was not a simple institution. There were a variety of different types of marriage that all had varying degrees of recognition and legal impact; and the institution underwent drastic changes in both social and legal senses throughout the ages. Notwithstanding these changes, the institution of marriage always held a central place in community life as it was the foundation of the familia, the pivot of Roman society. Its cardinal importance is reflected in the famous definition offered by the jurist Modestinus that is recited at the beginning of the title on marriage in the Digest: “Marriage is the joining of a man and a woman in a general communion of life by virtue of the communication of divine and human law”.37 It is important to note at the outset that for a considerable period of Roman history, marriage was not so much a legal institution as it was a simply factual relationship recognized by society. In later times, the influence of Christian dogma and ethics moulded the gradual perception of marriage as a legal relationship with a strong religious character.
Most marriages were preceded by an engagement or betrothal (sponsalia), consisting of reciprocal promises by the future husband and wife to contract a legal marriage with each other at a later date.38 In early times the betrothal assumed the form of an enforceable agreement that was usually concluded between the respective patresfamilias by means of the contract of sponsio. Before the beginning of the second century bc, however, the promises ceased to be actionable.39 Nevertheless, betrothal entailed certain legal consequences. From the time it was concluded relatives of the pair were considered to be in-laws, and a sexual involvement by the woman with another man amounted to adultery. By the fourth century ad it became customary for the fiancé to give the woman a gift signifying his earnest intention to marry. This was forfeited if he refused to proceed with the marriage, and was repaid to him in multiple if the breach came from the other side.40 An engagement could be terminated by mutual consent of the parties or upon the death of one of them. It was likewise terminated if it was revealed during the course of the engagement that the parties did not meet the conditions for a valid marriage.
There were two forms of marriage: cum manu and sine manu. In the marriage cum manu the wife fell into the power (manus) of her husband or his paterfamilias, if the latter was still alive. In the marriage sine manu, on the other hand, the wife remained in the power (potestas) of her own paterfamilias or, if she had been sui iuris before the marriage, she remained independent.
Marriage cum manu could be celebrated in one of three ways: confarreatio, coemptio and usus.41 Confarreatio was a religious ceremony that created both manus and the marriage itself.42 It took its name from the cake of spelt (farreus panis) that was eaten by the parties in the temple of Jupiter. The relevant ceremony was conducted under the supervision of a priest of Jupiter (flamen dialis) and the chief priest (pontifex maximus). By the early Principate age confarreatio had largely become obsolete, but it possibly remained in existence until the close of the fourth century ad, when Emperor Theodosius abolished pagan sacrifices. Coemptio consisted of the formal conveyance of the wife to the husband by means of a fictitious sale conducted according to the technical procedure of mancipatio (also employed for adoptio and emancipatio).43 Like confarreatio, coemptio created both manus and the actual marriage. This type of marriage ceremony appears to have fallen into disuse as early as the first century ad and it disappeared not latter than the third century ad. A wife who was not married with either of the above ceremonies came into the manus of her husband by usus if she cohabited with him for a year without interruption. This method was analogous to the acquisition of property by prescription. A woman not wishing to come under her husband’s power in this way was required to stay away from the matrimonial home for three successive nights in each year (absentia trinoctium).44 As already noted, the principal effect of a cum manu marriage was that the woman passed into the power of her husband or, if he was himself in potestate, into the power of his paterfamilias. This implies that if she had been sui iuris she became alieni iuris and her property was transferred to her husband or his paterfamilias.45 Everything that she subsequently acquired accrued immediately to her husband or his paterfamilias, with the result that she never had property of her own.
Originally nearly all Roman marriages were cum manu but during the later republican epoch, as family relationships became less rigid and women acquired a greater degree of independence, marriage sine manu evolved as the principal form of marriage.46 In the imperial age, the latter became virtually the only form of marriage. The marriage sine manu was a formless transaction. This means that for the creation of such marriage nothing more was necessary than the intention of the parties to live together as husband and wife (affectio maritalis). However, while ceremonies were not essential to the validity of the marriage, celebrations including bridal feasting and songs and the leading of the bride to her husband’s home were usual. Such celebrations provided evidence that marriage (not concubinage)47 was intended. The sine manu marriage had little impact on the status of the parties. The wife did not fall under the power of her husband or his paterfamilias. If she had been sui iuris before the marriage, she remained so and retained her own property. Everything that she subsequently acquired accrued to her own property. If she had been under patria potestas before her marriage, she remained a member of her original family and all that she acquired accrued to her own paterfamilias. In general, there were few legal effects of the sine manu marriage as the partners stood legally in the same position as strangers to each other. In the course of time, however, the existence of a valid marriage was held to produce certain legal consequences: donations between husband and wife (donationes inter virum et uxorem) were prohibited48; the parties could not institute defaming actions against each other; and the assumption of liability by a wife for her husband’s debt (intercessio) was considered null and void.
A number of conditions had to be fulfilled before a valid civil law marriage (iustae nuptiae or iustum matrimonium) could take place.49 Firstly, it was required that both parties possessed the capacity to contract a Roman marriage (ius conubii). Thus, only marriage between Roman citizens or with someone from a state that had been granted the right of intermarriage with Romans constituted a valid marriage. Secondly, both parties had to be of marriageable age. This usually meant that the man had to be at least 14 years old and the girl at least 12.50 If the parties were alieni iuris, the consent of the patresfamilias was required, as was the consent of the parties, although in early times the wishes of the woman were legally irrelevant. A paterfamilias could withhold consent for a reasonable cause, but otherwise provision was made for the granting of the requisite consent by a magistrate. Where the woman was sui iuris, the consent of her tutor was needed when the marriage was to be cum manu. Finally, there were to be no impediments. The most important impediments derived from relationship by blood, marriage and adoption. Thus, ascendants (adscendentes) and descendants (descendentes) in the direct line could never marry each other.51 Furthermore, collaterals (collaterales) were not permitted to marry each other if they were too closely related, but the forbidden degrees varied through the ages.52 Originally, second cousins were not permitted to marry, but by the first century bc first cousins could. Uncles and nieces, aunts and nephews could not intermarry, but a senatus consultum exceptionally permitted marriage with a brother’s daughter so that Emperor Claudius (ad 41–54) could marry Agrippina.53 The latter exception was repealed in the fourth century ad.54 Any marriage concluded contrary to these prohibitions was absolutely null and void, and constituted the criminal offence of incest (incestus) entailing severe penalties.55 Moreover, during the course of the centuries a large number of prohibitions against the intermarriage of certain persons evolved from considerations of a social or moral nature as well as related public policy decisions. Differences in respect to social class or rank constituted one of the most important impediments. Marriage between patricians and plebeians was forbidden by the Law of the Twelve Tables but this prohibition was finally removed by the lex Canuleia of 445 bc. The lex Iulia of Augustus forbade members of the senatorial class to marry freedpersons as well as those connected with the theatrical profession.56 Furthermore, marriage was forbidden between Roman provincial officials and native women of the province, and, in later times, between Christians and Jews.57 Marriages concluded in conflict with these prohibitions were deemed null and void, and the children born from such marriages were treated as children without a father (spurii).58
From an early period, a general custom and moral duty for the father required him to bestow upon the bride a fortune or dowry (dos) when she entered into marriage. By the time of Justinian this moral duty had developed into a statutorily recognized legal duty.59 As a general rule, the bride’s father supplied the dowry, although the relevant duty could also be discharged by the bride herself (if she was sui iuris) or another member of her family or even an outsider. The primary purpose of the dowry was to serve as a contribution to the necessary expenses a marriage involved (ad onera matrimonii sustinenda), such as those requisite for the maintenance of the common household and the upbringing of children. This emphasis adapted over time to influences such as Christian humanitarian principles, and the chief function of the dowry came to be the protection of the wife and children after the marriage was dissolved by the death of the other spouse or by divorce.
A marriage could be dissolved in various ways: by the death, loss of liberty or loss of citizenship of either party,60 or by divorce (divortium)—the latter existed as the most common form of ending a marriage. In early times, divorce was permitted to the husband only on specific grounds: adultery, poisoning a child and tampering with keys. If the husband cast his wife off for any other reason he had to give her half of his property, the remainder being forfeited to the goddess Ceres. This continued until the late third century bc, when it was recognized that a marriage could be dissolved if one or both parties did not want to be married anymore for whatever reason. No action or formalities were required for divorce unless the marriage was cum manu, in which case a reverse ceremony (diffareatio or remancipatio) was needed.61 In later times, Christian emperors disapproved of unjustified one-sided dissolutions of marriage and imposed financial penalties on the party who divorced in this manner, but the marriage was still dissolved. Good causes motivating divorce included adultery, promiscuous behaviour, attempt on life, sorcery and abuse.62 Justinian introduced a law prohibiting divorce by mutual consent, except for the purpose of living lives of monastic chastity,63 and also stipulated certain additional grounds for the justifiable repudiation of marriage by one of the parties.64
3.2.6 Guardianship and Curatorship
In principle, a sui iuris Roman citizen enjoyed all the rights of citizenship and could own property as well as perform legal acts. In practice, however, certain sui iuris individuals were wholly or partially unable to conduct their own affairs on account of their immaturity, gender, or mental disability or impairment. Such persons were therefore in need of protection and for this reason were placed under guardianship (tutela) or curatorship (cura).
Two basic forms of guardianship were recognized: namely, guardianship over persons below the age of puberty (tutela impuberum)65 and guardianship over women (tutela mulierum).
From the time of the Twelve Tables a guardian might be appointed by will by the paterfamilias to those in his potestas who would become sui iuris on his death.66 If a testator failed to appoint a guardian for a child below the age of puberty who was to become sui iuris at the testator’s death, the nearest agnates (proximi agnati)67 of the child became ipso iure (automatically) his or her guardians provided that such agnates were themselves above the age of puberty.68 The lex Atilia (probably late third century bc) allowed the praetor at Rome and a majority of the tribunes of the plebs to appoint a guardian to a child who had none. The leges Iulia et Titia (probably late first century bc) extended this to the provinces, and there was additional provision for appointment of a special guardian when there was a lawsuit between the ward (pupillus) and the existing guardian.
To serve as a guardian was considered to be a public duty and could not be refused except for specific reasons. Until the fifth century ad, while the ward was an infans, literally ‘unable to speak’, he could not legally act—only the tutor could do that. Where the ward was older, the guardian’s consent was required for all legal acts of the ward that might entail loss to the latter. If the ward entered into a bilateral contract without such approval, the result was classified as a ‘limping transaction’ (negotium claudicans): only the other party was bound to the transaction and not the ward, although the latter could not demand performance from the other party unless he was prepared to do likewise.69 The Law of the Twelve Tables gave an action for theft from the ward’s account against an agnatic guardian for double the amount he had embezzled, but such remedy was available only at the end of the guardianship. Another more general action deriving from the republican age was the actio tutelae. This was an action based on good faith (actio bonae fidei)70 that the ward could instigate against his guardian after termination of the tutela on the grounds of any dereliction of duty by the latter. It should be noted further, that from the time of the Twelve Tables the tutor who had acted fraudulently or dishonestly in managing the ward’s affairs could always be removed by means of a criminal action brought against the tutor (accusatio suspecti tutoris, crimen suspecti tutoris) before the praetor or the provincial governor.71
From the earliest times, women who were sui iuris and above the age of puberty were also placed under guardianship. The existence of such guardianship (tutela mulierum) manifests the essentially patriarchal nature of Roman society where a woman always had to remain under the control of a male.72 The appointment of a woman’s tutor occurred in the same manner as that of the tutor impuberis: by testament of the person (father or husband) who had power over her; by law (in which case she was placed under the guardianship of her agnates); or by a magistrate. The principal responsibility of the tutor mulieris was to grant his authorization (auctoritas) in respect of important juristic acts performed by the woman, such as acceptance of an inheritance, preparing a testament and assuming an obligation. As women became progressively more independent over the course of time, this form of guardianship lost its significance and had virtually disappeared from the scene at the end of the Principate age.
Curatorship (cura) became relevant where a sui iuris person above the age of puberty was incapable of managing his own affairs due to some disability. Curatorship occurred in various forms, the most common being curatorship in respect of juveniles above the age of puberty but under 25 years of age (cura minorum), insane persons (cura furiosi) and prodigals (cura prodigi).
The lex Plaetoria (or Laetoria) of c. 192 bc provided for a fine for anyone who defrauded a person under the age of 25. The same statute gave the minor a defence (exceptio legis Plaetoriae) if he was sued by someone who had defrauded him. Where the defrauded minor had entered into a transaction in which he suffered loss, the praetor gave the minor a remedy aimed at restoration of the previous legal position or status quo ante (restitutio in integrum).73 Because of the possibility of the praetor’s intervention, the practice developed where persons wishing to conduct business with a minor required the magistrate’s appointment of an independent adult (a curator) to approve the transaction. Originally, the curator had no formal legal recognition and this status prevailed for a long time as they were merely deemed someone appointed ad hoc when the need arose for a specific transaction. However, from the late second century ad it became possible for a minor to request the appointment of a permanent curator to assist him throughout his minority.74 Under the Law of the Twelve Tables, insane persons and their property were placed under the curatorship of their nearest agnates (proximi agnati) or kinsmen (gentiles).75 In the absence of such relatives, a curator could be appointed by the praetor.76 Furthermore, a prodigal who wasted away an inheritance that he had received on intestacy, and later any spendthrift person, could be placed under curatorship by the praetor and prohibited from managing his property.
3.3 The Law of Property
The Roman law of things (ius rerum) or, in contemporary terms, ‘property’, covered a much broader field than that encompassed by the modern law of property. One of the reasons for this fact is that the Roman jurists linked the thing (res) with any legally guaranteed economic interest, any right or rights having monetary value, that a person could hold in respect thereof.77 The law of things is organized under two broad headings: rights which related to property and which were available against persons generally (iura in rem); and rights which related to persons and which were available against specific individuals (iura in personam). The Romans divided the rights that existed over property into those acquired over individual objects and those acquired over things in a mass. The law of property in a narrow sense pertained to the former category of rights, whilst the law of succession embraced most of the rules regulating the acquisition of things in a mass. Finally, rights concerned with claims against specific persons were dealt with under the law of obligations. Mainly for reasons of convenience, we will deal with the law of succession and obligations separately and approach the law of property on the same basis as it is done in modern law.
3.3.1 Classification of Things
Before examining property rights over individual objects, it is apposite to consider briefly the kinds of property that existed in Roman law. The various classifications are generally the result of historical development and represent an attempt at systematizing the relevant part of private law.
A first distinction was between things governed by divine law (res divini iuris) and those subject to human law (res humani iuris).78 Under divine law were things dedicated by order of the Roman people to the gods above, such as temples and altars (res sacrae); things dedicated to the gods of the underworld, such as tombs (res religiosae); and things deemed to be under the protection of the gods because of the purposes they served, such as the walls and gates of a fortified city (res sanctae).79 Things under divine law were not susceptible to private ownership (res extra nostrum patrimonium or res extra commercium). The res humani iuris were either public or private. The former were owned by the state and included public roads, bridges, harbors and navigable rivers.80 Some things were classed not as public but as common to all mankind (res communes), such as the air, the sea, and running water.81 A further category of things were the res universitatis: those belonging to a particular city or municipality for the use and enjoyment of its inhabitants, such as theatres, public baths, sports grounds, halls of justice and the like.82
Things were further classified into corporeal (res corporales) and incorporeal (res incorporales). The former were things that could be touched or perceived by the senses such as a garment, an ox, a table or a house; the latter were intangible things or things not capable of sensory perception that the law recognized and protected, such as real and personal rights.83 Although primarily academic and philosophical in nature, the distinction between res corporales and res incorporales had some practical importance. This emanated from the fact that only corporeal things could be possessed and consequently several legal concepts with respect to which possession played an essential part were not applicable to res incorporales. Because incorporeal objects could not be physically seized as required for possession to exist, they thus could not be acquired or transferred by any method involving the acquisition or transfer of possession.84
The principal division of things that could be privately owned (res in nostro patrimonio or res in commercio) was between res mancipi and res nec mancipi. Res mancipi, a category that was early fossilized, were land and buildings situated on Italian soil85; slaves; farm animals of draft and burden, such as oxen, horses, mules and donkeys; and rustic (not urban) praedial servitudes (servitutes rusticae), for example rights of way and of water over land.86 Since these were the most important assets in the early Roman agricultural society, ownership over them could be transferred only in a formal manner by way of mancipatio or in iure cessio. All other things were res nec mancipi. With respect to the latter, ownership could be transferred informally by simple delivery (traditio).
In principle, ownership (dominium ex iure Quiritium)87 was the most complete or extensive right a person could hold in respect of a corporeal thing. The holder of such right had the maximum prerogatives a person could have over an object: he had the right to use, enjoy and even abuse his property (ius utendi, ius fruendi, ius abutendi) as well as to alienate it, in whole or in part, as he saw fit. In short, the owner (dominus) could perform virtually any factual or legal act in respect of his property. It should be noted, however, that the right of ownership was not as extensive in early times as it was in later law. The relevant concept underwent a long process of evolution spanning several centuries until reaching its culmination in the republican age.88
As the most extensive of all real rights, ownership had to be acquired in a prescribed manner. Roman law knew several modes of ownership acquisition which all depended on some recognized and public assertion of control of the property. Some of these modes were peculiar to Roman law and, accordingly, derived from the ius civile; other modes were also familiar to other peoples and therefore were regarded as originating from the ius gentium (identified in this context with ius naturale).89 The modes of acquisition may also be classified into ‘original’ (or ‘natural’) and ‘derived’. Original modes of acquisition of ownership were those where the person acquired the right of ownership in respect of a thing without intervention by or dependence on another person. The principal modes of original acquisition of ownership were prescription (which assumed various forms), occupatio and accessio. Derived ownership occurred where a person acquired ownership of a thing from another. In this case, the ownership was transferred or passed from one person to another with the cooperation of the first person. The chief forms of derived acquisition of ownership were mancipatio, in iure cessio and traditio. The above two methods of classifying the modes of acquiring ownership may be reconciled. The original modes of acquisition of ownership emanated from the ius gentium, with the exception of prescription, which was regarded as belonging to the ius civile; while the derived modes originated in the ius civile, with the exception of traditio, which had roots in the ius gentium.
An important principle relating to the transfer of ownership was that no one could transfer more rights to another than he himself had (nemo plus iuris ad alium transferre potest quam ipse haberet).90 The practical implication of this principle was that in Roman law a person who was not the owner of a thing could not transfer ownership of that thing to anyone else.91
As a mode of acquisition of ownership, mancipatio was in form a combination of a formal cash sale and a solemn conveyance of ownership of a res mancipi. The formal procedure relating to this legal act required the presence of the transferor, the transferee, five male witnesses who were Roman citizens above the age of puberty, and another person (libripens) who held a bronze scale. The transferee grasped the object to be conveyed (if it was movable) or a representation of it (if it was immovable), struck the scale with a bronze ingot, and said: “I declare this object (e.g. a slave) to be mine by the law of the citizens (ius Quiritium) and has been bought by me with this bronze and this bronze scale.” The transferor said nothing, his silence showing his acquiescence. Assuming that the transferor was owner of the thing, ownership passed to the transferee. The mancipatio procedure dated back to a time before the appearance of coined money, and it probably developed from a formal cash sale when brass or copper was in fact weighed out on a scale (libra) and handed over simultaneously with the transfer of the object sold. In later times mancipatio had no necessary relation with sale at all—it was a general mode of conveyance limited to certain kinds of property, whilst any sale that actually occurred was regarded as a separate transaction furnishing the requisite cause (causa).92 Nevertheless, the relevant formal ceremony was retained in order to stress the seriousness of the parties’ intentions. It should be noted, finally, that the person transferring ownership by mancipatio had to provide a warranty against the eviction of the transferee from the property. If the acquirer of ownership was evicted after a third person had successfully claimed the property by means of a legal action, the acquirer could instigate the actio auctoritatis against the transferor for double the price paid.93 Furthermore, the transferor was bound by any formal declarations (nuncupationes) he made in respect of certain features or characteristics of the property being transferred. By way of illustration, if the transferor had stated in his nuncupatio that the land he was transferring had a certain size and it later turned out to be smaller, the transferee could employ the actio de modo agri to claim twice the value of the missing portion.94
The in iure cessio procedure was used for a variety of purposes: to transfer ownership over corporeal property of every kind, whether res mancipi or res nec mancipi; to create and extinguish praedial servitudes and usufruct; and to transfer incorporeal objects other than obligations, such as an inheritance. As a mode of ownership transfer, in iure cessio (literally ‘divesting in law’) assumed the form of a fictitious lawsuit in front of the praetor in which the transferee claimed to be owner of the object being transferred, the transferor put up no defence, and the praetor adjudged the object to the transferee. In contrast with ordinary lawsuits, the magistrate’s decision actually transferred ownership and its effect was not only between the parties. As in the case of mancipatio, only Roman citizens or persons possessing the ius commercii could employ the in iure cessio procedure.95
Usucapio, the most important original mode of acquisition of ownership, was a form of prescription that occurred when someone had undisturbed physical control of land for 2 years or of movables for one.96 The acquisition of ownership by usucapio presupposed that the property in question was susceptible to private ownership and that it was not stolen or seized by force. Furthermore, it presupposed the existence of a just cause (iusta causa) that is, an antecedent event or transaction by virtue of which the possessor would have become owner of the property under normal circumstances.97 Closely connected with the issue of iusta causa was the requirement of good faith (bona fides): the person who acquired possession of the property in question had to honestly believe that the relevant transaction (as a just cause) made him owner of the property.98 If the possessor at a later stage lost his good faith by obtaining knowledge of the true situation, his right to become owner of the property in question by usucapio was not affected.99
The ownership of res nec mancipi could be transferred by traditio, the actual physical delivery of a corporeal thing on the grounds of some lawful cause (iusta causa). This mode of ownership acquisition originated from the ius gentium and was thus available to foreigners. Although traditio originally required the acquisition of possession animo et corpore (‘with soul and body’) by the transferee, it was gradually recognized that in certain cases it would be sufficient for establishing possession if the transferee had been placed into a position of control (according to the views of the community) without actual physical contact with the thing. Thus, several methods of fictitious delivery (traditiones fictae) developed alongside the actual physical or hand-to-hand delivery. There was traditio longa manu (‘delivery by the long hand’), when goods stored in a warehouse were sold and the seller gave the purchaser the key within sight of the warehouse; traditio brevi manu (‘delivery by the short hand’), when the intended transferee was already in possession of the object whose ownership was being transferred100; and symbolic delivery (traditio symbolica), when a symbol of the thing whose ownership was being transferred rather than the thing itself was delivered.101
Important forms of original acquisition of ownership were occupatio and accessio. The former was the act of taking possession of a thing belonging to no one (res nullius) but capable of being in commercio with the intention of becoming owner thereof. Things that could be acquired in this way included wild animals, birds, bees and fish; the spoils of war or booty seized from an enemy; an island arising in the sea; and things thrown away by a former owner. Reference may also be made in this connection to treasure trove (thesaurus), defined as something valuable hidden away for such a long time that the identity of its owner could no longer be established.102 According to a legislative enactment of Emperor Hadrian, a person who found a treasure on his own property became the owner of it whilst the ownership of a treasure discovered on another person’s property was equally shared between the landowner and the finder as long as the discovery occurred by chance.103 If the finding was the result of a deliberate search, the owner of the land in which the treasure had been found was entitled to the whole trove. Accessio occurred when separate things belonging to different owners were inseparably joined to each other or merged in such a manner that a new entity or object was established. The principle that prevailed was that the owner of the principal object also became owner of the composite thing; furthermore, the owner of the minor object had to be reimbursed for his loss of ownership. A further way of acquiring ownership was specificatio, the making of a new thing out of materials belonging to another who did not consent (for example, wine from grapes, or a garment from wool). The Sabinians declared the opinion that the owner of the material should also become owner of the new object or where there were two or more owners, the latter should own the object jointly and in proportion to their contribution. By contrast, the Proculians held the view that the maker acquired ownership of the thing he had created.104 Justinian adopted a middle course and ruled that if the new product could be reduced to the material from which it had been created (for example, a golden statuette could be melted down to the original lump of gold), the owner of the material also became owner of the new object; if this could not be achieved (for example, wine could no longer be transformed into grapes), the maker became the owner. The party who suffered loss as a result of specificatio could institute an action for compensation against the owner of the new object.
Besides dominium, Roman law recognized certain lesser forms of property-holding, which placed the holder almost in the position of civil law owner. Probably the best-known example of such ownership occurred when a res mancipi had been transferred to someone informally by means of mere delivery (traditio) rather than by means of the formal procedures of mancipatio or in iure cessio as the law required. In such a case, the transferee could not become dominus ex iure Quiritium of the property but the praetor intervened and placed such person in the factual position of a civil law owner. The property was then regarded as in bonis and the transferee as a bonitary owner who could acquire true Roman law ownership through possession of the thing for a prescribed period by means of usucapio. 105 Other lesser forms of ownership included ownership of provincial land and ownership by foreigners (peregrini). Provincial land was land under Roman control outside Italy that had not been granted the status of Italian land. Dominium of such land in principle vested in the Roman state or the emperor, depending on whether it was situated in a senatorial or imperial province. Although the Roman ius civile did not allow private citizens to acquire dominium over provincial land, the ius gentium allowed the acquisition of extensive control by individuals by natural methods of acquisition. Likewise, although foreigners were unable to utilize the civil law methods of ownership acquisition, the ius gentium made possible the acquisition of extensive control of property by peregrini by natural law methods. Furthermore, in suits involving rights to property, the law granted to foreigners fictitious actions, with respect to which the court would adopt the fiction that the foreigner was a Roman citizen.106
220.127.116.11 Protection of Ownership
The most important legal remedies an owner could employ to protect their rights were the rei vindicatio and the actio ad exhibendum, an action usually employed before an owner initiated the rei vindicatio.
The purpose of the rei vindicatio was twofold: to determine ownership of the object in question and, once this had been established, to compel the defendant to return the object to its lawful owner or face being ordered to pay a sum of money. It should be noted that this action was directed at the recovery of the property itself and not at the person of the possessor thereof. The actio ad exhibendum was a personal action that was used to determine whether a particular person had possession of a thing and, if this was the case, to compel that person to produce it. This action was available not only to the owner who wished to institute a rei vindicatio but to any person who wanted a thing to be produced so that he could claim possession of it at a later time.
A further remedy available to the owner was the actio negatoria, or ‘action of denial’. This action was instituted by the owner of landed property against any person who, without challenging the plaintiff’s right of ownership, claimed a servitude or similar right in respect of his land. The aim of such action was to obtain a court order confirming that the plaintiff had full ownership not encumbered by the existence of any right of the defendant and forbidding the latter from arrogating to himself such right or calling upon him to restore the status quo.
18.104.22.168 Limitations on Ownership
Even though ownership was the most extensive of all real rights, it could still be limited by operation of law or by arrangement.
Several restrictions of the former type were embodied in the Law of the Twelve Tables. There was, for instance, a ruling concerning the branches of trees protruding over the boundary of a neighbour’s property. It was provided that the landowner whose property was affected could request a pruning of the overhanging branches to a height of 15 feet from the ground. If this request was not complied with, he could employ the interdictum de arboribus caedendis.107 Analogous remedies were available to an owner when the roots of a plant or tree belonging to a neighbour penetrated into his property. If the fruits of a plant or tree fell on adjoining land, the owner of the plant or tree was allowed to collect his fruit every second day. This right could be enforced by means of the interdictum de glande legenda.108 If a person artificially directed the flow of rainwater onto the property of a neighbour (e.g. by constructing a building or other work), the latter could employ the actio aquae pluviae arcendae to demand restoration of the status quo.109 Moreover, if a building or other structure in a dilapidated state threatened to collapse and cause damage to the property of a neighbour, the latter could request the praetor to compel the owner of the defective premises to provide security against possible damage by way of the cautio damni infecti.110
Furthermore, it was possible for an owner to voluntarily limit his right of ownership by giving a lesser or greater degree of control over his property to another person; for instance, by leasing such property to another person or granting them a servitude over it.
In Roman law, a servitude (servitus) was a real right in property belonging to another (ius in re aliena), which restricted the rights and powers of the owner of that property. It therefore, amounted to a burden on property, to which the owner was required to submit.111 A servitude could be protected by way of a real action that the servitude holder could institute against anyone who infringed upon his right.112
A servitude had to fall within a recognized class, and the four earliest—the right to pass through another’s land (iter), the right to drive draft animals across land (actus), the right to use a road on one’s land for driving in a carriage or riding on horseback (via), and the right to draw water across land by means of an aqueduct or furrow (aquaeductus)—were classified as res mancipi. Besides the rural praedial servitudes (iura praediorum rusticorum), such as the ones mentioned above, a number of urban praedial servitudes (iura praediorum urbanorum) were also recognized. The latter were concerned with urban utilization (regardless of whether the relevant immovable property was located in a city or the country) and displayed a more recent date than the rural praedial servitudes. Well-known servitudes of this type included the right to drive a beam into a neighbour’s building or wall (servitus tigni immittendi); the right to discharge rainwater through a gutter or something similar onto another’s land (servitus fluminis recipiendi); and the right to prevent a neighbour from obscuring one’s light (servitus ne luminibus officiatur).
Praedial servitudes could be either negative or positive: the holder of a servitude could either demand that the owner of the servient property should abstain from certain activity (e.g., erecting a building or structure exceeding a specified height), or was empowered by the servitude to conduct a specific task (e.g., draw water). The holder’s right was defined by the nature of the servitude and had to be exercised properly according to the standards set by the community. It is important to note, however, that servitudes could not impose a positive obligation on the owner of the servient land.113 The only exception to this principle derived from the servitus oneris ferendi (the right to have a building on the dominant land supported by a wall or building on the servient land), with respect to which the owner of the servient property had the duty to maintain the supporting wall of the building in good condition at his own expense.
Another category of servitudes were the personal servitudes (servitutes personarum or personales). Like the praedial servitudes mentioned above, the personal servitudes were real rights over another person’s property (iura in re aliena). Otherwise than in the case of praedial servitudes, however, these servitudes could be acquired over both movables and immovables, and were designed for the benefit not of a particular property but of their holder in his personal capacity. Furthermore, personal servitudes had limited duration as they were terminated by the death of the holder or the lapse of the period for which they were granted. Usufruct (ususfructus) was the earliest and most complete of the personal servitudes. It entailed the right to use the property of another person and to take the fruits thereof without impairing its substance.114 As a ius in re aliena, usufruct could be constituted over immovables, such as land and buildings as well as over movables that could not be consumed by normal use, such as cattle. The personal servitude of usus or use may best be described as an offshoot of ususfructus. It differed from the latter insofar as the holder of the relevant real right (usuarius) was entitled to use another’s property without taking the fruits thereof. The servitude of habitatio or inhabitation bore a strong resemblance to both usufruct and use. It entailed the real right, also attached to the person of its holder, to occupy and reside in another person’s house. Finally, the personal servitude of operae servorum vel animalium entailed the real right to use the services of another person’s slaves or beasts of burden.
Property could also be burdened by real security: a real right created over the property of another to secure the performance of a debt or an obligation. During the history of Roman law, three forms of real security featured: fiducia; pignus; and hypotheca.
The earliest form of real security known to the Romans was fiducia, the transfer of ownership of a res mancipi subject to an agreement (pactum fiduciae) that when the debt was discharged the creditor would reconvey the thing to the original owner. Originally, the pactum fiduciae was not enforceable but based solely on the transferor’s trust (fides) in the honesty of the creditor. Fairly early, however, the debtor was granted a personal action termed the actio fiduciae whereby he could compel the creditor to return the property and to pay compensation for any damage the latter may have caused to it by his fraudulent or negligent conduct.115 With the abandonment of the mancipatio and in iure cessio procedures in the later imperial era, fiducia as a form of security fell into disuse.
In pignus, which could relate to all kinds of property, the debtor delivered possession but not ownership to the creditor. The transfer of the property in question was accompanied by an agreement (pactum) of the parties that the property would be returned when the debtor paid his debt. The creditor’s possession of the object was protected by possessory interdicts against interference by third parties, as well as by the actio Serviana. By means of the latter action the creditor could claim possession of the object from any person, including the debtor, who had taken unlawful possession thereof. If after the discharge or extinction of the debtor’s obligation the thing was not returned, the debtor could bring the normal action (rei vindicatio) for ownership of the security, or a contractual action (actio pigneraticia).
Hypotheca was a variant on pignus, in which the creditor acquired a real right to take certain property on non-payment of a debt, ownership and possession remaining with the debtor.116 An advantage of the hypotheca was that practically any movable or immovable thing and even incorporeal objects (such as a claim or a usufruct) or future things (for instance, a future harvest) could serve as security.117
Possession essentially implied the physical control of a corporeal object and the exclusion of other persons from such control. This might be enjoyed by the person who had ownership over the property—one of the principal rights associated with ownership was the right to possess (ius possidendi). Despite the close connection between possession and ownership, Roman law drew a clear distinction between the two concepts: ownership was a right; possession was a factual state of affairs. This difference between being entitled to an object and having physical control of it lies at the root of the distinction between ownership and possession. Although possession was essentially a factual relation, it played an important part in the law: it was the foundation of the system of ownership, since it was in most cases possession plus another legal fact that led to ownership. For example, possession plus time entailed ownership by way of usucapio; possession plus just cause (iusta causa) entailed ownership by way of traditio. Furthermore, possession came to be protected in itself by remedies called interdicts (interdicta), and in some cases even possession that was not rightfully acquired was accorded protection.
Possession assumed many diverse forms and, from an early period, the Roman jurists set themselves the task of elaborating criteria for distinguishing between protected and unprotected possession. However, they did not develop a general theory of possession as they were mainly interested in the practical questions concerning the acquisition and loss of possession rather than the abstract question of its meaning. In this respect, convenience rather than logical consistency determined the scope of the relevant possessory remedies. In general, protected possession had to have two elements: the actual physical control of a thing (corpus); and the intention of exercising such actual control, normally as the owner (animus).
The introduction of praetorian remedies designed for the protection of possession is related to considerations of public policy. While a person possesses an object, and because he possesses it, the impression is projected that such a person has a right to the object. The law has to consider this factual relationship seriously and ensure that third parties are prevented from interfering with it or taking matters into their own hands until and unless due legal process has transpired.118 Thus, even the owner was not entitled to eject an occupier from his land. If he did, the latter could bring a possessory interdict to be restored to possession. The owner, on the other hand, could bring a vindicatory action, and if he proved his title, the wrongful occupier would then be lawfully deprived of his possession.
For present purposes a distinction may be drawn between two broad categories of property holding: possessio and possessio naturalis. The former was juristic possession, protected by praetorian interdicts. This category embraced the possession of an owner; a bona fide possessor; a mala fide possessor; a holder of a long lease of land (emphytheuta); a holder of a long-term right to the enjoyment of a house built on another’s land (superficiarius); a pledgee; a tenant at will or on sufferance (precario tenens); and a person with whom the parties to litigation deposited the object of the dispute, on the understanding that it was to be delivered after the conclusion of the litigation to the party who won the case (sequester). The term possessio naturalis (also known as detentio) denoted the possession of persons who, although they had physical control of a thing, could not seek the protection of possessory interdicts. This category encompassed the possession of a borrower for use (commodatarius), a depositee (depositarius), a tradesman working on property and a person without capacity (e.g., an insane person or a ward without authority).
22.214.171.124 Protection of Possession
In Roman law, possessory protection was achieved mainly by interdicts (interdicta), that is, praetorian orders issued on request in duly justified circumstances. Possessory interdicts were classified into three categories: interdicts aimed at obtaining possession (interdicta adipiscendae possessionis); interdicts aimed at retaining possession (interdicta retinendae possessionis); and interdicts aimed at regaining possession (interdicta recuperandae possessionis).119 The most important interdicts were the interdictum uti possidetis, the interdictum utrubi and the interdictum unde vi. The interdictum uti possidetis protected the present possessor of immovable property against any disturbance of his possession and thus it had a prohibitory effect in this instance. However, if the present possessor had obtained his possession by force (vi), secretly (clam) or by request from the other party, then this other party was entitled to the interdict even though he was not in possession. In this instance, the interdict was restitutory, as the present possessor was commanded to return possession to the person from whom he had obtained it.120 The interdictum utrubi protected the party who had been in possession of movable property for the longest period (as against his adversary) in the preceding year, unless he himself had obtained possession by violence, secretly or by grant at will (vi vel clam vel precario).121 As in the case of the interdictum uti possidetis, the interdictum utrubi was bilateral and prohibitory as well as restitutory where possession of the object was awarded to the party who was not the present possessor. Finally, the interdictum unde vi restored the possession of immovables lost by force and was, therefore, solely restitutory. This interdict had to be requested within a year after possession had been lost.
3.4 The Law of Obligations
The term obligation (obligatio) denoted the legal relationship that existed between two persons, in terms of which one person was obliged towards the other to carry out a certain duty or duties. Obligation may otherwise be defined as a bond recognized by the law (iuris vinculum) in terms of which one party, the creditor (creditor), had a personal right (ius in personam) against the other party, the debtor (debitor). It is important to emphasize that the person who bound himself to another as a debtor placed an obligation on only himself and thereby gave the creditor a right against himself, while third parties did not become involved. If the obligation was not properly discharged, the creditor could institute a personal action (actio in personam) against that particular debtor with a view to obtaining a judgment that could be executed against such debtor. With this personal action the creditor claimed that the debtor had to perform something for the creditor, i.e. give something to the creditor, do something for him or refrain from doing something.122
Gaius, in his Institutes, states that obligations fell into two principal categories: obligations arising from contract (obligationes ex contractu), and obligations arising from delict (obligationes ex delicto).123 The term contractus was understood to denote any lawful juristic act capable of producing rights and obligations, and enforceable by means of an action at law. As the vast majority of lawful juristic acts creating obligations were transacted because there was agreement on the part of the parties to establish an obligation, it was in time recognized that agreement (consensus) was the essence of a contract. The delictum was an unlawful act (also referred to as maleficium) that was detrimental to the lawful rights and interests of another person and which generated an obligation between such person and the malefactor. The content of such obligation was directed at satisfaction, compensation or a penalty (poena