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Lecture notes, cheat sheets
Roman law. Lecture notes: briefly, the most important
Directory / Lecture notes, cheat sheets Table of contents
List of abbreviations J. - Institutions of Justinian For example, J. 1. 10. 1 - Institutions, 1st book, 10th title, § 1 D. - Digests of Justinian For example, D. 4. 8. 5. 3 - Digests, 4th book 8th title, 5th fragment, § 3 S. - Code of Justinian For example, S. 4. 30. 5 - Code, 4th book, 30th title, 5th law. Gai. - Institutions of Guy. For example Gai. 2. 3 - Institutions of Guy, 2nd book, § 3. Introduction Roman law is not only the law of the largest state of the ancient world. In Rome, an abstract legal form was created that successfully regulated any private property relations. This explains the fact that Roman law outlived Roman statehood and acquired a new life in reception. In some European countries, already in the Middle Ages, law was created on the dogma of Roman law. In Germany in the XVI-XVII centuries. on its basis pandect law was formed. In the 1804th century on the basis of Roman law, codification work began to be carried out. At the same time, the rational grain of this law was used: the logic of construction, abstract categories and concepts, precise legal definitions and legal constructions. The creation of the French Civil Code of XNUMX was also based on the system of Roman law and many of its provisions. The experience and achievements of Roman private law can be found in modern legal systems, in international commercial, civil and judicial law of individual countries. In the domestic legal system, the classification of means of influencing people's behavior (command, prohibition, permission, punishment) that was established in Roman law is reproduced. In civil law, terms and concepts that arose in Rome are used: contract, compensation, restitution, vindication, etc. Based on this, the study of Roman law is not only of historical interest, but is also the basis for the assimilation of modern law, the basis for the training of a highly qualified lawyer. Being the foundation of the general theory of modern civil law, Roman law forms legal thinking, develops the abilities and skills of legal analysis, and is an example of how to improve law on the principles of justice and humanism. Distinguished by the accuracy and clarity of legal formulations, high legal technique, Roman law summarizes a wealth of experience that can be used by lawyers in the implementation of lawmaking and in the application of the rule of law. 1 Theme The concept of Roman law. His systems and sources 1.1. The concept and subject of Roman law Periodization of Roman law. In the history of mankind, Roman law is given a completely exceptional place: it outlived the people who created it and conquered the world twice. The origin of Roman law dates back to the period when Rome was a small community among many other similar communities in central Italy. At the initial stage, Roman law was a simple and archaic system, imbued with a narrow national and patriarchal character. Without developing and remaining at the same stage of development, Roman law would have long been lost in the archives of history. Roman law outlived its creator for a long time - the ancient (slave-owning) society. It partially or in a revised form formed the basis of civil, part of the criminal and state rights of many feudal, and then bourgeois states. The periodization of Roman law (ius romanum) is the allocation of stages in the development of law that have corresponding signs and a time period. The most common periodization is the division of the evolution of private Roman law into the following periods. 1. The period of ancient, or kviritsky, civil law (ius civile Quiritium) - 754 BC. e. During this period, the Laws of the XII tables, which fixed the main institutions of the legal system of Rome, acted as the main source of law. 2. Preclassical period - 367 BC e. Laws are being issued, inheritance law is being developed, such methods of creating legal norms as the praetor's formulas are being created. The form of the trial is changing (from legal action to formulary). 3. Classic period - 27 BC e. - 284 AD e. The senatus advisers, the constitutions of the princeps, and the replies of the jurists appear. An extraordinary process appears. 4. Postclassic - 284-565 AD e. At the end of the period, the Code of Justinian (Corpus juris civilis) arises. subject of Roman law. The norms of Roman private law regulated a wide range of social relations between individuals. These included: 1) a set of personal rights, the legal status of subjects in property relations, the ability of subjects to make transactions of a property nature; 2) marriage and family relations; 3) relations connected with ownership and other rights to things; 4) range of issues arising from the inheritance of property of the deceased and other persons; 5) obligations of subjects arising from various grounds - contracts, offenses, similarity of contracts, similarity of offenses; 6) issues of protection of private rights. definition of Roman law. Roman law consists of public law and private law. Public law governs the state of the Roman state, while private law refers to the property benefits of individual citizens. Public law (ius pudlicum) expresses and protects the interests of the state, regulates relations between the state and private individuals. The norms of public law are binding, they cannot be changed by individuals. Private law (ius privatum) expresses and protects the interests of individual individuals. The rules of private law can be changed by agreement between individuals. Private law contained norms regulating relations both between individuals and between legal entities. Private law included enabling and dispositive norms, as it was an area in which state intervention was limited and which provided scope for private individuals. Enabling norms provided individuals with the opportunity to opt out of the behavior specified in the law and to determine for themselves how to act in a particular case. Thus, a person was given the opportunity to decide whether to protect his violated property right or not; to sue or not to sue. Dispositive (conditionally mandatory) norms were in force when a person did not use the right granted to him. For example, if the deceased did not leave behind a will, the state filled this gap. With the help of a dispositive norm, it determined to whom and how the property of the deceased was transferred (legal inheritance occurred). At present, the term "private law" has been preserved in a number of states, especially where there is a distinction between civil and commercial law. In these states (for example, France, Germany) private law includes mainly: a) civil law, b) commercial law. Civil law includes the rules governing property relations of autonomous entities of turnover that are not commercial, as well as family legal relations and some personal rights. In the field of commercial law - the rules governing the special relationship of merchants and trade transactions. In those states in which there was no commercial law, relations in this area were regulated simply by civil law. Roman law did not include the term "civil law" ("ius civile") in the meaning indicated above. This term had a number of meanings, in particular it meant: a) the ancient law of Roman citizens (civil law), and in this sense "civil law" was opposed to praetor law; b) the entire set of legal norms in force in this state (civitas) and expressed in the laws of this state; in this sense, civil law was opposed to the "law of peoples" (ius gentium) and natural law (ius naturale). Basic features of Roman law. Throughout the history of society, we do not find another system of private law that has reached such detail and such a high level of legal form and legal technique as Roman private law. In particular, two legal institutions should be noted, which caused detailed regulation in Rome, which was of particular importance for the economic turnover of Rome, for consolidating and intensifying the exploitation of slaves and the poor free, carried out by the top of the slave society. First, the institution of unlimited individual private property, which grew out of the need to establish, to the widest possible extent, the rights of slave owners to land, to ensure complete freedom to exploit slaves, and to give merchants a real opportunity to dispose of goods. Secondly, the institution of the contract. Trade turnover, which reached its highest development in Rome in the first centuries of the new era, and in general the conduct of a large economy by the rich, necessitated a detailed development of various types of contractual relations and a detailed formulation of the rights and obligations of counterparties on the basis of the firmness of the contract and a ruthless attitude towards the debtor who did not fulfill the contract. By the beginning of the new era, the remnants of the primitive communal system and manifestations of the family community of property disappeared in the Roman state. Gradually, Roman private law acquires the features of individualism and freedom of legal self-determination of the propertied strata of the free population. The subject of ownership independently acts in circulation and is solely responsible for his actions. Individualism is determined by the fact that the householder or slave owner manages the household and collides in the market with other such masters. The consistent implementation of these principles, which are of great value to the ruling class of a society based on exploitation, was combined in Rome with a form of expression of legal norms at a very high level. Thus, the distinguishing features of private Roman law are: clarity of construction and argumentation, accuracy of wording, concreteness and practicality of law, and the conformity of all legal conclusions to the interests of the ruling class. Roman law systems. Roman private law was represented by three branches that appeared at different times. The first was the norms of kvirite (civilian) law, the formation and development of which falls on the XNUMXth century BC. - the middle of the III century. BC e. The norms of ancient law regulated relations exclusively between quirites - Roman citizens. The expansion of trade, the development of agriculture, crafts, private property relations, and the slave-owning system of the economy as a whole caused the further development of private law. The norms of kvirite law were no longer able to regulate the development of trade and money relations. Life urgently demanded that the old norms be brought into line with the new conditions and needs of society. That is why, next to quirite law, praetor law (ius praetorium) appeared as the second branch of private law. It grew out of the edicts of the magistrates, especially the praetor edicts. In the course of judicial activity, the praetors did not abolish or change the norms of the kvirite law, but only gave the norms of the old laws a new meaning (deprived one or another provision of civil law of force). In defending the new relationship, the praetors took the next step. With the help of edicts, they began to fill in the gaps of civil law. Later, the praetor edicts began to include formulas that were aimed at changing the norms of civil law, the praetor edict indicated the ways for recognizing new relations. By presenting remedies contrary to or in addition to civil law, the praetor's edict created new forms of law. The norms of praetor law, as well as the norms of quirite law, regulated relations between Roman citizens. However, unlike the latter, these norms were freed from formalism, religious rituals and symbols. The principles of good conscience, justice, humanity, the rationalistic doctrine of natural law (ius naturale) were the basis of praetor law. According to natural law, all people are equal and are born free. The equality of Roman citizens before the law was derived directly from the principle of justice. The principle of humanism meant respect for the individual. Trade exchange between Rome and other territories of the Roman state required the creation of legal norms acceptable for transactions involving foreign citizens. In the republican period, because of this, another system of private law appeared - the "right of peoples" (ius gentium). This system absorbed the institutions of Roman law and the norms of the law of Greece, Egypt and some other states. In contrast to quirt and praetor law, the norms of the "rights of peoples" regulated relations between Roman citizens and peregrines, as well as between peregrines on the territory of the Roman state. This law, in comparison with the Roman law of the most ancient period, was distinguished by its simplicity, lack of formalities and flexibility. The primordial Roman private law and the "law of peoples" complemented each other for a long time. At the same time, the influence of the "right of peoples" on the Quirite law was significant, and the latter began to lose its specific features. Gradually there was a convergence of all three systems of law. If at the beginning of the III century. n. e. some differences between them still remained, then by the middle of the XNUMXth century. all three systems formed a single Roman private law. Basic principles of public law. Roman law has two opposing principles that pervade the development of law by the praetor and the jurists. First, conservatism. It was expressed in the fact that lawyers prove that any conclusions correspond to the views of their predecessors. They treated the old law with great respect, emphasizing the inadmissibility of any innovations, the immutability of the existing social system and, most importantly, the inviolability of law. There were cases when lawyers deliberately resorted to exaggerations when interpreting the established norm so as not to show the variability of law. Secondly, progressiveness. But if the developing relations of production did not fit, under any interpretation, into the old norms, if the modern interests of the ruling class were not protected by ancient rules, if a gap was discovered in the law, then the lawyer was not afraid to formulate a new beginning. But not by abolishing the old law or custom: Roman magistrates and lawyers were not entitled to such a repeal, and such a break could instill an opinion harmful to the ruling class about the variability of law. The Roman jurist was making a detour. Along with the old law and without repeal of the latter, new norms were worked out by means of additions to the previous edict introduced by the praetor or by the formulation of new views by jurists. And life began to flow along a new channel, although the old channel did not fall asleep - it simply dried up. So, along with civil property, the so-called bonitary, or praetor, property was created (which did not bear the name of property, but gave the authorized person all the rights of the owner), along with civil inheritance law, the praetor system of inheritance was created (again, it did not even bear the name of inheritance). ) etc. 1.2. Sources of Roman law Sources of Roman law: concept and types. In legal and historical-legal literature, in relation to Roman law, the "source of law" is used in various meanings: 1) as a source of the content of legal norms; 2) as a way (form) of the formation of the rules of law; 3) as a source of knowledge of law. The institutions of Ga I refer to the sources of law: laws, senatus-consultants, constitutions of emperors, edicts of magistrates, and the activities of lawyers. In this list, these sources reveal the way (form) of the emergence of the rule of law. Consequently, the source of law was understood in Rome as a way (form) of the formation of law. The Institutions of Justinian mention two kinds of sources: 1) law and other norms emanating from state bodies and fixed by them in writing; 2) norms emerging in practice (meaning legal customs). On the basis of the written and oral form of sources, the Romans divided the law into written (jus scriptum) and unwritten (jus non scriptum): "Our law is either written or unwritten ..." (DII 1. 6). In a broader sense, the sources of law include numerous legal and other monuments containing legal norms and other data about the law. First of all, they include the codification of Justinian, the works of Roman lawyers, historians, philosophers, orators, poets, etc. Papyri with the texts of individual treaties and inscriptions on wood, stone, etc. are also considered to be sources of law in a broad sense. Common law and law. The most ancient unwritten source of Roman law was customary law as a set of legal customs. In the modern theory of law, a legal custom is understood as a rule of conduct that has developed as a result of its actual application for a long time and is recognized by the state as a generally binding rule. The noted signs characterized the legal custom in Rome. The Roman jurist Julian speaks of the prescription (duration) of the application of the custom and the tacit consent of society (we consider its recognition by the state as a generally binding rule) to its application. Customary law included ancestral customs (mores maiorum); common practice (usus); the customs of the priests (com mentarii pontificum); customs established in the practice of magistrates (commentarii magistratuum). In the imperial period, customary law is referred to by the term "consuetude". For a long time, customary law played a significant role in regulating various social relations. Even in the era of the principate, the same power was recognized for legal customs as for laws. Along with customary law, already in the ancient period in Rome, laws (leges) were used as a source of law. The first laws in Rome were legislative acts adopted by popular assemblies and approved by the Senate. In 451-450 years. BC e. a record of customs was made, called the Laws of the XII tables (leges duodecim tabularum). In 326 BC. e. The Peteliev Law was passed, which abolished debt slavery and the murder of a debtor for non-payment of a debt. Approximately in the III century. BC e. the law of Aquilia (on responsibility for the destruction and damage of other people's things) appeared. Later, a number of other laws were adopted. During the period of the principate, when the role of the people's assemblies declined, they no longer adopted laws. The last was the agrarian law of the XNUMXst century. n. e. With the simultaneous coexistence in Rome for a long time of legal customs and laws, the question arises: how did these sources of law correlate with each other? The Romans had no doubt that the law could abolish legal custom. Roman jurists also believed that legal custom could override a law (in which case the law was said to have fallen into disuse). From the classical jurists on this account, the statement has been preserved: "... Laws can be repealed not only as a result of the expressed will of the legislator, but also by tacit agreement of all, by custom" (D. 1. 3. 32. 1). This conclusion was made on the basis that there was no difference in how the people would express their agreement with this or that rule of law: by voting or by their actions. Laws of the XII tables. In 451-450 years. BC e. a record of customs was made, called the Laws of the XII tables. For the most part, the Laws of the XII Tables fix in writing the long-established practice of the relationship of various persons, that is, common law. In this sense, oddly enough, they could be called barbaric truth (as the first legal codes of the states of the early Middle Ages are called), if we forget that the very concept of "barbarians" was applied in antiquity to all people, except for the Greeks and Romans. In the text of the tables, the influence of Greek law, and specifically the Athenian legislation of Solon, is noticeable. In two cases, this is directly indicated by the ancient jurist Gaius. This confirms the source's message that Greek laws were involved in the work of the collegium at the preparatory stage. But it is also obvious that they were used sporadically, and the resulting set mainly reflected Roman realities. The laws of the XII tables consolidated the right of private property (dominium), which had already been formed by that time, which in Rome followed from the highest property right of the civil community, that is, the state, and therefore belonged only to citizens. They still lack a universal formula, later developed by Roman jurists: "Ownership of a thing is the right to use it at will, change it, alienate it and transfer it by inheritance." However, the interpretation of this legal relationship in individual articles of the tables is already approaching the classical one. The tables legalize the social inequality between free and slaves, patrons and clients, patricians and plebeians. The first difference will last another two millennia, the second will survive until the fall of the Roman Empire, and the third will disappear relatively soon, and belonging to a patrician or plebeian family will have no meaning in Rome. In our time, even educated people - not experts in antiquity - are convinced that throughout Roman history, including during the era of the empire, the patricians constituted a privileged class in Rome that oppressed the plebeians. In fact, the patricians, who were the old nobility of the tribal society, fought with the plebeians for the preservation of their privileges during the first centuries of the history of the Roman Republic and by the XNUMXrd century. BC e. suffered a complete defeat. During the empire, belonging to a patrician family was no more important for a Roman than for our contemporary - the boyar origin of his ancestors. The laws of the XII tables contain many specific provisions that were subsequently developed in Western European and late Roman law. The merit of their compilers lies in the fact that they laid the foundations for the law-making process for the future and formulated the norms that allowed the young class society to function quite effectively. First of all, the compilers of the tables established a certain order of judicial procedures, that is, in professional terms, they fixed the norms of procedural law. The laws of the XII tables protect the foundations of the ancient patriarchal family. Laws XII became the first ancient Roman code of law: many of their provisions relate to the field of criminal law. The laws of the XII tables were inscribed on 12 wooden tablets and were put on public display in the main square of Rome, hence their name. Thus, the Laws of the XII tables regulated family, inheritance relations, loan transactions and partly criminal offenses. Gradually, in connection with the development of new economic relations, caused by the growth of commodity production, commodity exchange and banking operations, the Laws of the XII tables began to be adjusted by a new source of law - praetor edicts. Edicts of magistrates. Roman judicial magistrates had the right to issue decrees for Roman citizens and other inhabitants of the Roman state. The term "edict" comes from dico ("I say") and, in accordance with this, originally meant an oral announcement of the magistrate of the following types: - a permanent edict was issued by a new magistrate and announced what rules would underlie his activities, in which cases claims would be given, in which not (a kind of work plan for a certain period); - a one-time edict was issued regarding the decision of a specific case and on other unplanned occasions. Subsequently, edicts began to be adopted in writing. They were valid only during the administration of the magistrate who issued them, and the next magistrate could cancel or extend them. At the beginning of the II century. n. e. edicts were declared eternal and unchangeable. The Roman jurist Gaius wrote that edicts were accepted: 1) praetors. Praetors were both urban, in charge of civil jurisdiction in relations between Roman citizens, and peregrine, in charge of civil jurisdiction over disputes between peregrines, as well as between Roman citizens and peregrines; 2) governors of provinces; 3) curule aediles, who were in charge of civil jurisdiction in commercial matters (in the provinces - quaestors, respectively). Starting from the III century. BC e. in connection with the complication of social relations (the development of trade relations with other countries, the development of agriculture), the norms of ius civile became outdated and ceased to satisfy the demands of life. Praetor edicts helped civil law in meeting the new needs of society, since praetors issued decrees not in general, but on specific claims. The praetor directed the civil process and could choose to defend only those claims that were not provided for by civil law. The praetor could not abolish or change the norms of civil law ("the praetor cannot make law"). He could work out a norm of civil law in practice and invalidate one or another provision of this norm. For example, he could protect a non-owner of property as an owner, but he could not change the status of a non-owner and turn him into an owner. The praetor could not give the right to inherit. Thus, the praetor could only give protection to new forms of legal relations, which once again emphasizes the inviolability of native law (ius civile). According to Roman jurists, praetor law gradually developed and began to act in several directions, responding to the new demands of life and satisfying them: - Praetor helped the application of civil law (iuris civilis adiuvandi gratia); - filled in the gaps of civil law with the help of his edicts (iuris civilis supplendi gratia); - changed and corrected the norms of civil law (iuris civilis corrigendi gratia). The praetor could not abolish civil law, he could only supplement it. As a result of the law-making activities of the curule aediles, praetors and governors of the provinces (who largely borrowed the content of the praetor edicts), the meaning of this activity expanded, and ius honorem (from the word honores - "honorary positions") arose - magistrate law, or ius praetorium - praetor law based on the Praetor Edict. Ius honorem and civil law (which could not be abruptly abolished or replaced, since the Romans treated their origins with great respect) began to operate in parallel, complementing each other. In the II century. n. e. lawyer Julian developed an inventory of individual decisions contained in the praetor edicts. This inventory, which was essentially a codification of the praetor edicts, was approved by Emperor Hadrian and received the status of the final version of the so-called eternal edict (edictumperpetuum). She was declared unchanged, and only the emperor could make some additions. Julian's "Eternal Edict" has not come down to us, but fragments of comments by Roman jurists have been preserved. With the help of these comments, attempts were made to reconstruct the edict. In the process of interaction, these two types of law came closer and closer to each other and, starting from the classical period, began to merge into a single system of law. Thus, the difference between civil and praetor law existed until Justinian (VI century AD). activities of lawyers. Such a specific Roman form of law formation as the activity of lawyers (jurisprudence) has become widespread. Lawyers acted in the following areas: 1) drawing up formulas for various private legal acts made by individuals (wills, acts of sale, etc.) (cavere). In order to appreciate the significance of this function, one must take into account the strict formalism of Roman law, in which the omission of at least one word weakened the perfect act, made it legally null and void; 2) consultations and advice regarding the filing of a claim and the procedure for conducting an initiated case (agere). The Romans did not allow direct representation in court due to the ritual nature of the court (the plaintiff had to conduct the case on his own), and therefore the help of lawyers was expressed only in the preparation of the case; 3) responses to legal questions (respondere) from individuals. This form was used only in cases of a gap in the current law, then lawyers offered their own solutions. Although such responses from lawyers had an impact on practice, they did not have binding legal force. In the classical period of the development of Roman private law, this direction gained momentum and became more often used. The interpretation by lawyers of existing laws and the writings of lawyers devoted to legislation were called commentaries. Lawyers also compiled collections of cases, while expressing their opinion on certain legal events. Roman jurists compiled textbooks on Roman law and acted as teachers of law. The writings of Roman jurists were associated with practice. The analysis of legal relations carried out by them, the presentation of legal norms were distinguished by accuracy, depth, logical consistency and validity of decisions. Many legal norms and maxims of lawyers have acquired the character of aphorisms: "To know the laws does not mean to follow their letter, but to understand their force and significance" (D. 1. 3. 17); "It is wrong to give answers, advice or decide a case, having in mind not the whole law, but only some part of it" (D. 1. 3. 24). Among the prominent republican lawyers, one can name such as Mark Manilius, Junius Brutus, Publius Scaevola (II century BC). Representatives of classical Roman jurisprudence were Labeon and Capito (I century AD). Their names are associated with the formation of two schools of Roman lawyers: Proculian (named after Proculus, a student of Labeon) and Sabinian (named after Sabina, a student of Capito). During the "golden age" of Roman jurisprudence (XNUMXnd century - early XNUMXrd century AD), the remarkable galaxy of Roman lawyers was replenished with the names of Paul, Papinian, Ulpian, Modestin, Gaius and others, each of whom made a huge contribution to the development of Roman law . From the end of the 426rd century n. e. creative activity of lawyers weakened. In XNUMX, Valentinian III issued a law on citations, according to which the legal force was recognized only for the works of five lawyers: Gaius, Paul, Papinian, Modestinus and Ulpian. Senate Consultant. The Senate Councils are the decrees of the Roman Senate. Initially, they had practically no independent significance. The bill was submitted and discussed at the people's assembly, which gave it the force of law. In the late republic, popular assemblies were banned, and decisions on current affairs began to acquire the force of law even without the approval of the popular assembly. In the era of the principate, the senatucouncils acquire the greatest power. From the XNUMXst to the XNUMXrd centuries n. e. senatorial councils were the main form of legislation. Praetors were engaged in their practical development, they gave only general assumptions. The Senate had no legislative initiative. In the era of the princeps principate, the speeches of the emperor began to be designated by senatus advisers, with which he spoke at any solemn meeting and through which he made his proposals. Justinian's codification. First half of the XNUMXth century n. e. was marked by the desire of Emperor Justinian to restore and reunite the once brilliant Roman Empire. The colossal work of compiling the Justinian Code was completed in several stages and in a relatively short time. First of all, Justinian's attention turned to the collection of imperial constitutions. It was necessary to put in order the constitutions that had accumulated over a hundred years after the publication of the "Theodosian Code" ("Codex Theodosianus"). But Justinian had a broader idea - to revise the previous codes (Gregorian, Hermogenian and Theodosian), delete from them everything obsolete, and combine everything that is valid in one collection. To this end, Justinian appointed a commission of 10 men. A year later, the commission completed its work, and the decree "Summa rei publicae" promulgated the "Codex Justinianus" (Justinian's Code), which canceled the three previous ones. Having collected and systematized the laws, Justinian decided to do the same in relation to the "long-standing law" (jus vetus). This task, of course, presented much more difficulties, but the quick success with the Code and the availability of energetic assistants strengthened Justinian in his intention. The code of laws of Emperor Justinian included three major collections of Roman law: institutions, Digests and the Code. After the publication of the Code, Justinian prepared a collection of imperial constitutions for the period from 535 to 565, which were not included in the Code. This collection was called Novels. All these parts of the Justinian codification, according to Justinian, should have been one whole, one "Corpus" of law, although they were not then combined under one common name. Only in the Middle Ages, when the study of Roman law was revived (starting from the XNUMXth century), did the entire Justinian Code begin to be called by the general name "Corpus juris civilis", by which name it is known to this day. Code of Justinian. In 529, the Code of Justinian appeared - a collection of imperial constitutions from Hadrian (117-138) to Justinian. The second edition of the code (534) has come down to us. The Code is devoted to issues of civil, criminal, and state law. It is divided into 12 books, books are divided into 98 titles, titles are divided into fragments. Within the title of the constitution (4600 in number) are arranged in chronological order. They are numbered. At the beginning of each constitution is the name of the emperor who issued it, and the name of the person to whom it is addressed - inscription. At the end is the date of publication of the constitution - subscription. Digests of Justinian. In 533, the result of the work of the commission was published in the form of Digest (digesta - ordered) or Pandekt (pandectae - containing everything in itself). The commission used about 2000 books written by 39 lawyers. The largest number of passages are borrowed from the works of Ulpian - up to [1] / 3 of the entire Digest and Paul - about 1 / 6. In addition, the works of Papinian made up 1/18 part, Julian - 1/20, Pomponius and Servius Scaevola - 1/25, Gaius - 1/30, Modestinus - 1/45, Marcellus - 1/60, etc. Almost all of the jurists quoted, except for three (Quintus Mucius Scaevola, Alfen Var, Aelius Gallus), lived in the period of the empire and most - in the period of the principate. Digests consist of 50 books. Books (except 30 and 32) are divided into titles, number 432. Titles - into fragments, number 9123. And fragments in the latest editions of the Digest - into paragraphs. The commission was instructed to use the writings of only those lawyers who had ius respondendi, but in this case it did not show such strictness. The main contents of the Digest are fragments relating to private law, but many passages of the Digest refer to public law, as well as to what we would call the general theory of law. So, already in the first title of the first book of the Digest, a number of general definitions are given, which have become textbooks: the definition of justice, the prescription of law, the definition of the science of law or jurisprudence. It also speaks of the division of law into private and public, civil and the law of peoples. Of great interest is a fragment from Pomponius on the origin and development of Roman law. The third title deals with laws, senatorial councils, and long custom, and the fourth with the constitutions of princeps. Books 47, 48 and partly 49 (Criminal Law and Procedure) belong to public law. In addition, questions of public law are included in titles 11 (on the right of fiscus) and 14 (on military or camp peculia), as well as in book 49 and book 50 in title 6 (on immunities). Finally, in various books of the Digest there are provisions that, according to modern legal systematics, belong to international law. Institutions and novels. In 533, law professors Theophilus and Dorotheus, under the guidance of Tribonian, compiled an elementary textbook of civil law - Institutions (institutiones). The institutions were published for educational purposes for young lawyers, but they received an official character, that is, they acquired the force of law. The commission based this official guide on the institutions of Gaius, supplementing them with the writings of some other authors and some constitutions. She arranged the materials according to the same system as in Guy's institutions. Namely: personae, res, actiones (persons, things, claims). The Institutions of Justinian consisted of four books: the first, persons and family law; the second - things and rights to things, as well as wills; the third - inheritance under the law and obligations; the fourth is obligations in torts and claims. After the death of Justinian, the so-called Novels (novellae) are published, that is, the constitutions of Justinian himself, drawn up later than the Code and the Digest. Justinian intended to collect these Novellas in a single collection. But, obviously, he did not have time to do this. Only three private collections of Novels have come down to us, mostly in Greek. The largest of the mentioned collections consists of 168 short stories. The novels relate mainly to public and church law, but there are also norms of private law - they talk about marriage and inheritance. 2 Theme civil process. Lawsuits in Roman law 2.1. Division of the civil process The litigation in cases of a private nature throughout the centuries-old history of Rome did not remain unchanged. During the Republican period, there was a legisaction process, then a formulary process appeared, which was canceled in the first half of the XNUMXth century. n. e. extraordinary production. Legislation process. Legislation process became the first developed form of litigation in private disputes. (The origin of the expression legis actiones (lawsuits) is not fully understood.) It consisted of two stages: 1) in iure. At this stage, the parties appeared before the magistrate, who exercised judicial power. The parties came together: either voluntarily, or the plaintiff brought the defendant by force. If the thing about which there was a dispute was possible to bring with you, then it was sure to be brought. Then, in the presence of the magistrate, a series of rituals were performed by the parties and solemn words were pronounced. It should be noted that the process was very formalized, a mistake in words automatically led to a loss in the process. After performing all the necessary rites, the magistrate testified that the lawsuit was taking place. He also called witnesses to testify that there was litigation at the next stages of the process; 2) after a certain number of days, already in the presence of not a magistrate, but a judge (a private citizen or several citizens invited by the magistrate acted as a judge), the process in iudicio began. After the speeches of the witnesses, confirming that the dispute really takes place, the court examined all the existing evidence (written, testimonies of witnesses on the merits of the case) and pronounced a sententia (judgment). The judgment of the court was not subject to appeal. There are several types of legalization process depending on the actions of the parties and the content of the requirements: - through an oath (legis actio sacramento). It is believed that this is the most ancient type of litigation, used more often than others. It dealt with both personal and property claims. The parties, in strictly formal terms, solemnly expressed their claims to each other and made a deposit. The plaintiff brought with him the thing about which there was a dispute (or a piece of this thing), if it was possible. For example, in a dispute about land, they brought a piece of turf and then, holding a vindicta (a special spear-shaped stick) in their hands, uttered an established phrase, asserting their right to the thing. The respondent, for its part, did the same. This was followed by the determination of the pledge, which symbolized the subject of the claim. The winning party received its pledge back, and the second pledge went to the treasury. If either party refused to pay bail, it was declared the loser. The thing was transferred to the custody of one of the parties until the trial. During the second stage, the parties directly elected a judge from three persons, who dealt with the dispute; - by requesting the appointment of a judge or arbitrator (legis actio per iudicis arbitrive postulationem). In this type of legalization process, the judge was appointed immediately at the request of the plaintiff, and no bail was paid. At the first stage of the process, the plaintiff had to utter the following words: "I affirm that you owe me according to your solemn promise ... and I ask: will you give or dispute." The defendant either admitted the claim or uttered negative words. This type was used to protect obligations during the stipulation of certain obligations that arose as a result of the division of property (section of common property, division of inheritance); - by means of reclamation, or process "under the condition" (legis actio per condictionem). This lawsuit appeared in the III-II centuries. BC e. and was used to demand a certain amount of money or a certain thing. The plaintiff's claim was made in the same way as the previous type of legalization process, the defendant's response objection assumed a delay of 30 days, after which the parties met with the judge already for the second stage of the trial on the merits. The following two types of legitimation process belong to the executive legis actiones, by means of which the interests of the plaintiff were forcibly satisfied in connection with the certainty of his claims: - by laying on of hands (legis actio per manus iniectionem). Such a process has only been applied to certain specific statutory liability claims. The conduct of the process and the initiation of the case in the form of "laying on of hands" was due to the fact that there had previously been a deal (pehit), which gave rise to liability in the form of a debt. According to the Laws of the XII Tables, the debtor-defendant was given a delay of 30 days for the repayment of the debt after the issuance of a judgment on the basis of any of the legitimation processes. Then an additional 60 days of a kind of "temporarily obligated state" were granted under house arrest with the creditor. Moreover, the Laws of the XII tables even described what kind of food the creditor had to provide the debtor during the period of house arrest. During these 60 days, the creditor brought the debtor to the magistrate three times, so that whoever wanted to pay for the debtor declared himself. If none of the friends or relatives of the debtor could or showed no desire to repay the debt, then the plaintiff could sell the defendant into slavery outside Rome (trans Tiberium - outside the Tiber) or even kill him. Later, under the Law of Petelia (lex Poetelia), the debtor was allowed to work off his debt. A feature of this type of process was that the defendant himself could not dispute the debt, a relative or patron of the defendant (vindex) could act in his defense, who could initiate legal proceedings to clarify the grounds for the debt. By doing so, they took responsibility for themselves, and when it was found out that their interference was unfounded, they were sentenced to pay the debt in double size; - by means of a sacrifice or by means of taking a pledge (legis actio per pignores capriorem). In case of non-payment for the transferred thing, the plaintiff, uttering certain solemn words, arbitrarily took the things back (or another thing that belonged to the debtor as collateral), this could only be done on a holiday. After blowing claims and adjudication took place in a manner similar to legis actio sacramento. Over time, the legisaction process was replaced by a formal one. formulary process. With the development of praetor law, the complex and archaic legisaction process is replaced by a formulary process. This type of process was established from the second half of the XNUMXnd century. BC e. after the adoption of a special law (lex aebutio). In the formulary process, the role of the praetor significantly increased, which ceased to be a passive participant in the sacramental rites performed by the parties during the legisaction process. The importance of the first stage of legal proceedings (in iure) increased, since it was here that the legal essence of the dispute was established. It found its expression in the conclusion (formula) of the praetor, in which the jury indicated how the case should be decided. Gradually, praetors begin to draw up new claims formulas, departing from the old laws and customs, guided at the same time by the requirements of trade turnover and the need to strengthen private property. By creating new formulas and claims, the Praetor, through his edict, contributed to the development of the very content of private law. The praetor now does not force the litigants to comply with the formalities required in the legiscation process, but gives the judge a guide to the formula that he must adhere to when considering the merits of the claim. In its structure, this formula consisted of some main parts (Partes formulae): - naming (nominatio). In this part, the praetor appoints a person as an intermediary (judge) to consider the merits of the claim. For example: "Let Octavius be the judge in this case"; - showing, description (demonstratio). The hypothesis or composition of the case is stated. This part opens with the word "because" ("quod"). For example: "Since the plaintiff sold the slave from the defendant ..."; - intention (intentio). The most essential part of the formula. It sets out the legal content of the dispute between the parties, which is subject to resolution by the judge. This is the claim of the plaintiff. It opens with the words: "if it turns out (si paret)..."; - award (adiudicatio) - "Just as much as it should and to whom it should"; - condemnation (condemnatio). The judge is asked to "condemn" or acquit the defendant. "Judge, award Numerius Negidius (NN) to Aul Agerius (AA) to pay ten thousand sesterces. If there is no debt for Numerius Negidius, then justify." Aulus Agerius (AA) is the model designation of the plaintiff, and Numerius Negidios (NN) is the defendant. The question arises, what relation did the praetor's formula have to the old civil law (ius civile)? Some of the formulas were drawn up on the basis of civil law (in ius conceptae), while others substantiated the claim by a combination of facts indicated by the praetor (in factum conceptae). Some praetor formulas contained fiction. The praetor sometimes ordered the judge, on purpose, to act as if some fact that did not take place in reality were present, or, conversely, as if the actual fact did not take place. Extraordinary process. The formulary process that existed in the period of the republic lasted for some time in the period of the empire, but it was gradually squeezed out by a new form of the process - extraordinary. The salient features of this process are as follows. The representative of state power is no longer an elected praetor, but an appointed imperial official. Cases are decided in an order unusual for the previous period (extra ordinem), that is, an official, let's call him a judicial magistrate, considers the whole case from beginning to end and decides the verdict himself, without transferring it to the judge. The two stages of the process (in iure and in iudicio) are no longer here. This is a one-step bureaucratic process. By a decree of Diocletian in 294, it was prescribed that the rulers of the provinces, the preses (praeses), deal with cases in full. If, for some reason, the Preses entrusted the consideration of the case to the judges, then again they were obliged to investigate the case at one time and decide it finally. An appeal (appellatio) to a higher official is allowed against a judgment rendered by a lower official. That is, the process takes place in several instances. The magistrates, i.e., the consuls who had the highest authority (imperium), praetors, had the right to organize the trial of jury judges who decide the case on the merits for each individual dispute. This right was called jurisdiction (iurisdictio). Any adult Roman citizen could be a judge in civil disputes. The judge, if he acted alone (unus iudex), was appointed by the praetor individually for each case. Such a judge, who could decide cases at his own discretion (arbitrium), was called an arbiter (arbiter). Most often, arbitration was resorted to in those disputes when it came to the production of estimates, the installation of boundaries, and division. Sometimes the proceedings were collegial. In this case, the judges were persons included in special lists, either from among the senators or from among the horsemen. The issue of jurisdiction is important. All cases between citizens could be dealt with only by the city magistrates of Rome or the city in which the person had the right of citizenship - in this case, the term "forum originis" (jurisdiction by origin) was used. If a person had his own place of residence, then they spoke of "forum domicilium" (jurisdiction according to the place of residence). That Roman citizen who lived in the province had the right to demand that his dispute be referred to the city magistrate of Rome. They said: "Rome is our common Fatherland." However, the defendant, witness, arbitrator, judge, temporarily staying in Rome, had the right to ask for the transfer of the process to their place of residence. 2.2. Types and means of praetor protection The concept of a claim. The sphere of freedom or power of persons - subjects of law, their ability to satisfy their needs and interests was determined by subjective law. However, in life, exercising their right, the subjects often faced infringement of rights and freedoms. Due to this, in practice it was important to establish whether the subject of the right has the opportunity to achieve the exercise of his right through the courts. With regard to this possibility, Roman jurists spoke as follows: does this person have a claim? Only in cases where the state body provided for the possibility of filing a claim, they spoke of the right protected by the state. In this sense, it was said that Roman private law is a system of claims. Claim (actio) - the right of a person to exercise his claim (D. 44. 7. 51; 4. 6). Claims were formed in the process of development of the formulary process within the framework of the developed formulas. The latter did not remain unchanged. Praetor edicts introduced new formulas, changed existing ones, and extended claims to a wider range of cases. Over time, typical formulas for certain categories of claims have been developed. Types of claims. According to the personality of the defendant, claims were divided into real claims (actiones in rem) and personal claims (actiones in personam). A real claim is aimed at recognizing the right in relation to a certain thing (for example, the owner's claim for the recovery of his thing from the person who has this thing); Any person violating the right of the plaintiff can be the defendant in such a claim, because the violator of the right to a thing may be a third person. Personal claims are aimed at the performance of an obligation by a certain debtor (for example, the demand for payment of a debt). An obligation always involves one or more specific obligors; only they can violate the right of the plaintiff, and only against them was a personal claim given. Sometimes the defendant in a personal claim was determined not directly, but with the help of some intermediate sign; for example, an action from a transaction made under the influence of coercion was given not only against the person who coerced, but also against anyone who received something from such a transaction. Such actions were called "like actions in rem" (actiones in rem scriptae). According to the volume and purpose, property claims were divided into three groups: 1) claims for the restoration of the violated state of property rights (actiones rei persecutoriae); here the plaintiff demanded only the lost thing or other value received by the defendant; for example, the owner's claim for the recovery of a thing (rei vindicatio); 2) punitive claims, the purpose of which was to punish the defendant (actiones poenales). They were: a) first of all, the recovery of a private fine and b) sometimes compensation for damages, but unlike the previous lawsuit, through this lawsuit it was possible to claim not only what was taken or received, but also compensation for such damage, which the defendant did not corresponded to any enrichment. For example, an action against a person who caused losses by fraud, although he did not enrich himself from this (actio doli); 3) claims that carry out both compensation for damages and punishment of the defendant (actio mixtae), for example, a claim by analogy (actio legis Aquiliae): for damage to things, not their value was recovered, but the highest price that they had during the last year or month. Personal actions aimed at obtaining things (money, other interchangeable things) or performing actions are called direct actions (condictiones) (Gai. 4. 5). A personal claim in Roman law is considered from the point of view of the creditor as a claim for a debt belonging to him (debitum) or an obligation of the debtor to give or do something (dare, facere, oportere). There were other lawsuits, for example, public ones (actio nes populares), presented to any citizen, "whoever put something or hung it so that it could fall into the street." According to the model of an already existing and accepted in practice claim, a similar claim was created, then the original claim was called actio directa, and the derivative one was called actio utilis; for example, an action for damages not covered by the law of Aquilia was called actio legis Aquiliae utilis. Fictitious claims - actiones ficticiae (Gai. 4. 34 ff.) - were those whose formulas contain fiction, that is, an instruction to the judge to add a certain non-existent fact to the existing facts or to eliminate any fact from them, and to resolve the whole case modeled on another specific case. Thus, a person who has acquired someone else's movable thing in good faith under certain conditions acquires it under civil law by prescription within a year and can then exercise his right against the former owner. Against a less entitled person, the praetor defends such an acquirer before the expiration of the year by ordering the judge to adjudicate the case as if the plaintiff had already owned for a year (si anno possedisset). Often the judge was ordered to make a special decision if he did not get the defendant to extradite or present the subject of the dispute. The amount of compensation the judge can determine at his own discretion (arbitrium), based on the principle of "good and justice" (bonum et aequum). Claims of this kind in the law of Justinian are called arbitration. Means of praetor defense. In addition to claim protection, there were also special ways to protect a violated right - the means of praetor defense of a claim. Its main methods were: 1) interdict - the order of the praetor to stop any actions that violate the rights of citizens. Issued by praetors in certain civil cases at the stage of investigation of the case, most often in connection with fines or bail. The interdict was to be executed immediately. The following types of interdicts can be listed: - a simple interdict (simplicia) - was addressed to only one of the parties; - bilateral interdict (duplicia) - addressed to both sides; - prohibitive interdict (prohibitoria) - forbade certain actions and behavior (for example, the prohibition to violate someone's possession (vim fieri veto)); - restorative interdict (restitutoria) - an order to restore a destroyed public building or return a person's things; - demonstrative interdict (exhibitoria) - they demand to present a certain person immediately, so that the praetor sees it; 2) restitution (restitutio in integrum) is a return to the original position. This method was applied by the praetor if the rules of common law could not be applied or if the praetor considered that their application would be unfair. The grounds for restitution were: the minority of one of the parties, the temporary absence of one of the parties (he was in captivity), the conclusion of the transaction under threat, i.e. those grounds that, although they were not indicated by the old law among the grounds for terminating the transaction, were sufficient reasons and reasons for doing so. For the application of restitution, it was necessary to have three conditions: the damage caused, one of the above grounds, the timeliness of the application for restitution; 3) stipulation (stipulationes praetoriae) - a promise of a person in the presence of a praetor to do something (for example, to give ownership). Such promises, essentially verbal agreements, were entered into by the parties at the direction of the magistrate. Stipulation types: - regulation of the correct conduct of the dispute (stipulationes jiudiales); - extrajudicial stipulations (stipulationes cautionales); - ensuring the process of unhindered conduct (stipulationes comunes); 4) introduction into possession (missiones in possessionem) was used in claims under inheritance law. The praetor "introduced the heir into possession", that is, he actually declared him the heir. 2.3. Limitation period and denial of a claim The concept and categories of limitation period. Limitation period (praescriptio) - the established period during which a person can file a claim for the protection of his violated right. Roman law has not developed special conditions that limit the time of the right to file claims. In classical law, there were special periods for certain transactions, but they were not a limitation period, but only the periods during which this or that right was valid (for example, a guarantee is valid for two years, etc.). Thus, in classical Roman law, all claims were considered as if they were permanent and had no time limits (actiones perpetuae). Under Justinian (in the 30th century AD), the limitation period was introduced in the classical sense of the term. For all personal claims and claims for things, it was the same and was set for a period of 40 years (in exceptional cases, the legislation of the emperors set a limitation period of XNUMX years). The limitation period began from the moment the grounds for the claim arose: - for claims for rights to things - from the moment of violation of the right of ownership; - on obligations not to perform any action from the moment of violation of this obligation and the performance of an action, despite the promise; - for obligations to perform any action - from the moment it becomes possible to demand the fulfillment of the promised immediately. The limitation period could be suspended for good reasons (minors, etc.). If the grounds for the suspension of the period were eliminated, then the limitation period was resumed. Types of limitation periods for complex claims: - full - the entire claim was paid off as a whole (praescriptio totalis); - partial, when it was considered extinguished, for example, the right to demand a penalty for non-performance, but the right to demand performance (return of a thing, etc.) was retained. The statute of limitations expired when, during the period of its validity, the person whose right was violated did not try to use the right to sue the guilty (obligated) person. Suspension of the limitation period took place when a person, due to any obstacles, could not bring a claim. These barriers could be: a) legal obstacles that prevented the filing of a claim (for example, the heir requested a time limit for compiling an inventory of the inheritance); b) minority of the authorized person. c) serious illness of the authorized person or his being in captivity; the absence of a defendant against whom a claim should be brought, etc. The removal of obstacles that prevented a person from filing a claim resumed the running of the limitation period. At the same time, the remaining part of the term was extended by the time of suspension. An interruption of the limitation period took place if the obligated person recognized the right of the authorized person or the authorized person performed actions indicating a desire to exercise his right. It was believed that the obligated person recognized the rights of the authorized person in the following cases: a) payment of interest on the obligation; b) partial payment of the debt; c) appeal to the plaintiff with a request to defer the debt. The action of the authorized person, indicating his desire to exercise the right to claim against the obligated person, was, for example, the presentation of a lawsuit by him in court. In case of interruption of the limitation period, the time elapsed before the interruption was not included in the limitation period, and the limitation period was resumed again. A special regulation of the limitation period was for claims arising from inheritance law. The claim for restoration of inheritance rights did not have a statute of limitations and retained legal grounds throughout the life of all hereditary generations who had the right to inherit either directly or by right of representation. 2.4. Recognition or denial of a claim Recognition of a claim. The defendant could recognize or challenge the brought suit. In cases where the defendant recognized the claims of the plaintiff, the decision could follow already in the first stage of the proceedings (in iure). When the defendant denied his debt, he answered "should not" (non oportere), the process developed further and was transferred for further consideration (in iudicium). When the defendant answered in the affirmative and acknowledged his debt, it was simply awarded in favor of the plaintiff. Along with the recognition in court of personal claims from obligations, another form of recognition of the plaintiff's right to things is known, but related to the transfer of ownership. It was accomplished not by means of a formal mancipatory transaction, but by a judicial assignment (in iure cessio), bringing the case to trial (in iure), when the one who ceded his right to the thing to the call of the acquirer to claim his rights answered either with denial or silence. Here the silence or denial of the defendant is equated with his consent (tacit). The formal questions of one party and the acceptance by the other party of any of the two provisions are completed by the procedural award of the thing to the plaintiff by the praetor. The magistrate bases his decision on the response of the summoned party and procedurally legalizes the transaction of the parties. In the formulary process, the institution of judicial recognition took on a clearly expressed personal-legal character. The defendant, recognizing himself obliged to pay something, was likened to someone who, in a claim for a thing, ceded it in the form of recognition. According to the views of the classics, the one who accepted the demand would, as it were, issue a decision on his own case. "The confessor is considered awarded, being, as it were, sentenced by his own decision" (D. 42. 2. 1). Difficulties arose when the defendant acknowledged the existence of a claim directed at things, or the basis of this claim, but not its size. First, the issue was resolved by referral for resolution by the judge in the next stage (in iudicio). It should be noted that in the action that is given against the confessor, the judge is appointed not to decide the case, but to evaluate it: for in relation to the confessors there are no (disputing) parties to award (D. 9. 2. 25. 2). However, under this procedure, against a confession made in iure, the defendant could in iudicio refute and thus weaken him. In the third quarter of the XNUMXnd c. a Senate Counsel was adopted, on the basis of which a rule was developed that the confession that followed in the first stage of the proceedings (in iure) entailed a decision that ended the dispute on this point, especially in claims for things. Such a decision finally established the plaintiff's right to the thing (rem actoris esse). Defense against a claim. If the defendant did not admit the claim, he could direct the challenge against its basis. The defendant could also deny the facts on which the plaintiff based his claim, or state facts precluding an award, even if the facts supporting the claim were true. Claim denied. Proceedings in the first stage could immediately end without transferring the case for further consideration. This happened when, even in the first stage, the magistrate came to the conclusion that the plaintiff's claim was not legally justified (due to inconsistency with the requirements of law, morals and justice), or the plaintiff himself recognized the defendant's objections. In these cases, the praetors and other judicial magistrates reserved to themselves in an edict the right to refuse to issue a formula to the claimant. "The one who can give (it) is authorized to refuse the claim" (d. 50. 17. 102. 1). This act was called the denegatio actionis. It did not have the extinguishing power that an acquittal judgment would have had. The refusal was not irrevocable, and the plaintiff could again apply to the same or another praetor with a new claim in the same case, correcting the previously admitted shortcomings. 3 Theme Legal status of persons in Roman law 3.1. Legal capacity and capacity Legal capacity. The capacity of a person in Rome depended on several factors. 1. Age. Understanding the meaning of the actions taken and the ability to control oneself and soberly make this or that decision come only with age. In Roman law, there were: - completely incapacitated (infantes) - young children under 7 years old who cannot speak (topuefari non potest); - immature or young children who have left childhood (impuberes infantia maiores) - boys from 7 to 14 years old, girls from 7 to 12 years old. "It is recognized that minors acting without a guardian cannot and do not know anything" (D. 22. 6. 10). Children of this age could only make transactions that led to an acquisition for a minor. It was possible to carry out other types of transactions related to the termination of the right of a minor or the establishment of his obligations only with the permission of the guardian and only at the time of the transaction itself. Guardians were appointed by the will of the father of a minor or by appointment of a master. The guardian was obliged to take care of the person and property of the minor and to alienate the property of the minor only when necessary. A person between the ages of 14 and 25 was legally capable. However, in the last years of the republic, at the request of such persons, the praetor could give the opportunity to refuse the concluded transaction and restore the property status that was before the transaction. This process was called restitution. Later, in the II century. n. e. persons under the age of 25 had the right to ask for a curator or trustee. If an adult under the age of 25 requested the appointment of a trustee, he became limited in his legal capacity in the sense that for the effectiveness of the transactions he made, which involve a decrease in property, the consent (consensus) of the trustee was required, which could be given at any time (in advance, or at the time of the transaction, or in the form of subsequent approval). Young people aged 14 (12)-25 years old could make a will, as well as marry without the consent of the guardian. 2. Physical and mental disabilities. Mentally ill and weak-minded were recognized as incompetent due to the inability to be aware of their actions and were under guardianship. In the presence of periodic or constant signs of rabies (furor) or insanity (dementia, amentia) in a person, such a person was deprived of legal capacity at the moments of insanity. However, during enlightenments, a citizen was considered capable. Bodily defects affected only those areas of activity that require the presence of certain physical abilities. For example, a scholarship agreement was made in the form of an oral question and answer; a dumb or deaf person could not conclude it on his own. 3. Waste. A spender (prodigus), i.e., a person who, by his actions, created a threat of his complete ruin, since he was not able to comply with the measure of expenses, was limited in capacity so as not to harm himself. A squanderer was appointed a trustee, after which the squanderer could independently make only such transactions that were aimed only at acquiring property. Transactions related to the reduction of property or the establishment of obligations could be made only with the consent of the trustee. With regard to the spendthrift, it was not taken into account that he has moments of "enlightenment". The legal status of a spendthrift is more like guardianship of a minor than guardianship of an insane person. 4. Capacity of women. Women over 12 years of age were no longer considered minors requiring guardianship and were released from custody of minors. This age is associated with the legal premise that a woman can already marry from the age of 12. However, with the achievement of the specified age, females did not acquire full legal capacity and remained under guardianship. This is due to the fact that a woman was considered by nature "frivolous" and unable to make independent decisions. Thus, under the guardianship of the householder, husband or closest male relative, women were throughout their lives. In the classical period, it was recognized that an adult woman is capable of managing and disposing of her property independently and without guardianship, but is not entitled to assume responsibility for other people's debts in one form or another. Under Justinian, the restrictions on the legal capacity and capacity of women were weakened, but gender equality was still not achieved even then. Legal capacity and its constituent elements. The modern term "legal capacity" in ancient Rome corresponded to the word caput. Full legal capacity in all areas consisted of three main elements: a) in relation to freedom: to be free, not a slave; b) in relation to citizenship: to belong to the number of Roman citizens, and not strangers; c) in marital status: not to be subject to the authority of the head of the family (patria potestas). If any status changed, this process was called capitis deminutio. The change in status libertatis was called the highest, essential (capitis deminutio maxima); a change in status cfivitatis was called capitis familiae and was designated as the smallest (capitis deminutio minima). In the field of private law relations, the full legal capacity of a person consisted of only two elements: a) the right to enter into a marriage regulated by Roman law, to create a Roman family (ius conubii); b) the right to be the subject of all property legal relations and a participant in relevant transactions (ius commercii). Legal capacity was recognized as arising at the time of the birth of a person who met the above requirements, and terminated with his death. However, lawyers established a rule by virtue of which a conceived but not yet born child was recognized as a subject of rights in all cases when it was in his interests. "A conceived child is protected on an equal footing with existing ones in all cases where the question is about the benefits of a conceived" (D. 1. 5. 7). In particular, based on the provisions of the Laws of the XII Tables, a conceived but not yet born child was recognized the right to inherit in the property of the father who died during the mother's pregnancy (D. 38. 16. 3. 9). On the other hand, an inheritance opened but not yet accepted by the heir ("lying inheritance") was considered as "a continuation of the person of the deceased" (hereditas iacens sustinet personam defuncti), a lying inheritance continues the person of the deceased (cf. D. 41. 1. 34). Therefore, slaves were entitled to perform legal actions (ex persona defuncti) in the interests of the hereditary mass, as if continuing to exercise the legal capacity of the deceased. Derogation of the legal capacity of Roman citizens (capitus deminuto). Roman citizenship was lost with the natural death of a person or his civil death. Civil death was marked by the loss by the Roman of his civil rights. "A decrease in legal capacity is a change in position" (D. 4. 5. 1). There were the following types of derogation of the legal capacity of Roman citizens: maximum (maxima), average (media) and minimum (minima). With the maximum derogation, the Roman citizen lost his freedom, turned into a slave. His property passed to the master. The maximum reduction occurred in the following cases: - if a Roman citizen was captured by the enemy; - if a Roman citizen was sold into slavery; - when sentenced to death or some life-long types of work (for example, in mines). With an average derogation of legal capacity, a Roman citizen did not lose his freedom, but his legal capacity was equated with the legal capacity of the Latins and Peregrines. The average decrease occurred in the following cases: - in case of relocation to the Latins and peregrines; - if a citizen defected to the enemy and was sentenced to exile from Rome (link). The minimum derogation of the legal capacity of Roman citizens came with a change in the marital status of one of the spouses. Degradation of civic honour. The limitation of the legal capacity of a Roman citizen could come as a result of the derogation of civic honor. There were several types of derogation from civil honor, among which the most serious was dishonor (infamia). In fact, the restrictions on the legal capacity of a person were directly related to the fact that a citizen was losing respect in society due to his unseemly behavior. Indirect dishonor (infamnia mediata) came: - in case of conviction of a person for a criminal offense or for a particularly discrediting private offense (theft, fraud); - as a result of the award on claims from such relationships where special honesty is expected (for example, from a contract of agency, partnership, storage, from relations regarding guardianship, etc.); - as a result of the sale of all property at auction due to the inability to pay creditors' claims. Direct dishonor (infamnia immediata) occurred directly due to the violation of certain legal norms and the commission of dishonorable acts, for example, those relating to marriage (a widow who remarried before the expiration of a year after the death of her first husband was considered dishonorable (infamis). A variety of direct dishonor was shame (turpitude) - the derogation of civic honor due to employment in a shameful profession: pandering, acting, etc. By the nature of their behavior, personae turpes were recognized as dishonorable and limited in the field of inheritance. Significant restrictions were imposed on ha personae infames. Such persons could not represent others in the process, as well as appoint a procedural representative for themselves; such persons were not allowed to enter into a legal marriage with a freeborn person, they were limited in the field of inheritance law, family law (they could not be guardians and trustees). Disgrace limited the performance of public functions: personae infames could not be elected to public office. There was also a special form of dishonor - inte stabilitas. Its essence boiled down to the fact that a person who participated in a transaction as a witness, and then refused to testify in court about this transaction, was recognized as intestabilis. This person was prohibited from participating (neither as a party nor as a witness) in transactions requiring the participation of witnesses. This was a very serious limitation. At a later time, persons who participated in the creation or distribution of libels were also recognized as intestabilitas - "A person convicted of compiling a libel is not capable of being a witness" (D. 22. 6. 21). 3.2. Legal status of Roman citizens Acquisition of Roman citizenship. Roman citizenship was acquired: - by birth from Roman citizens; - due to the adoption of a foreigner by a Roman citizen; - as a result of liberation from slavery; - by granting Roman citizenship to individuals, communities, cities or provinces. Persons born of Roman citizens were classified as free-born Roman citizens. That is, a child received Roman citizenship if he was born in a marriage between Roman citizens or born out of wedlock by a Roman woman. Here the rule "a child born in wedlock followed the state of the father, and out of wedlock - the state of the mother" was in effect. However, from the XNUMXst c. n. e. there has been a departure from the last rule. It was established that a child born out of wedlock to a Roman citizen was not recognized as a Roman citizen if his father was a non-Roman. Freeborn Roman citizens had full legal capacity. Foreigners adopted by full-fledged Roman citizens in accordance with a procedure specially enshrined in private law acquired full legal capacity. By their legal status, they were equated with free-born Roman citizens. Persons freed from slavery - freedmen - were limited in the field of private law, and their legal status differed from that of free-born Roman citizens. By virtue of the direct prescriptions of public law, Roman citizenship could be granted: 1) to individuals for personal services to the Roman people; 2) residents of individual communities, cities, provinces; 3) representatives of certain estates. Restrictions on the legal status of Roman citizens. For various reasons, the citizens of Rome could be fully or partially deprived of their legal capacity and limited in their rights. Complete or limited incapacitation of Roman citizens could take place: - due to the natural death of a citizen; - in case of loss of certain statuses (status of freedom, status of citizenship or family status) of a person as necessary conditions for legal capacity; - in derogation of civic honor; - for other reasons. Natural death terminated all the rights of the deceased and opened the inheritance. However, from the moment the inheritance was opened until it was accepted, the fiction was allowed that the legal capacity of the deceased continued until the heirs were determined and they received the inheritance. Limitation of legal capacity in case of loss of individual statuses of a person (capitis deminutio). Roman law distinguished three degrees of incapacity: maximum (capitis deminutio maxima), medium (capitis deminutio mediae) and minimum (capitis deminutio minima). The maximum loss of legal capacity occurred with the loss of the state of freedom. With the loss of the status of freedom, a person lost the state of citizenship and marital status. This entailed a complete loss of legal capacity. The circumstances leading to the maximum loss of legal capacity were: the capture of a Roman by an enemy, the sale of a Roman into slavery, the condemnation of a Roman to death or lifelong work in the mines. If a prisoner returned to Rome, he again acquired all the rights of a Roman citizen. In the event that he died in captivity, according to the law of Cornelius, all his property passed to his heirs. In cases where a citizen was sold into slavery, sentenced to death or to work in the mines, the restoration of legal capacity was not provided. The average loss of legal capacity entailed the loss of citizenship status and marital status. At the same time, the status of freedom was preserved. The reasons for this degree of incapacitation were the resettlement of a Roman citizen in a Latin or Peregrine community, an award to exile from Rome (for example, for going to the enemy) or exile. Persons who lost the status of citizenship passed into the sphere of application of the law of peoples. However, in the following, the restoration of Roman citizenship was allowed, if its loss was not associated with condemnation. The minimum loss of legal capacity occurred when the family status was lost (for example, when a woman entered into marriage, as a result of which she passed under the authority of her husband). Degradation of civic honour. Along with capitis deminutio, Roman law limited the rights of persons whose behavior, by common opinion or according to legal norms, was recognized as unacceptable. This is the so-called belittling of civic honor (disgrace). The forms of derogation of civil honor were: intestabilitas, infamia, turpitude. Intestabilitas was carried out when the participants or witnesses of any transactions refused to later confirm the transactions. Such persons were forbidden to act as witnesses, to resort to the help of witnesses, to bequeath property. Infamia took place: - when convicted for certain offenses related to dishonorable behavior (false bankruptcy, dishonest guardianship, etc.); - as a result of conviction in certain claims involving exceptional honesty (from a contract of agency, partnership, etc.); - in case of violation of the norms of marriage and family law (bigamy, marriage by a widow earlier than a year after the death of her husband, etc.). Persons recognized as dishonest on these grounds could not be guardians and represent anyone's interests in court. Turpitudo was carried out in the case of immoral behavior of persons condemned by society (prostitution, acting, etc.). Such persons were also subject to restrictions in the field of private law. The derogation of civic honor occurred by decision of the judiciary and other state bodies. It could be permanent or temporary. The decision to restore the legal status of a person, as a rule, was made by the body that imposed dishonor. Restoration could also be carried out by the supreme authority (for example, imperial) on behalf of the Roman people. Other grounds for limitation of legal capacity. In Rome, there were restrictions on legal capacity for certain categories of the population: women, children, barbarians, heretics, Jews and colones. Women and children were of limited legal capacity. They belonged to the category of alieni juris and were deprived of the right to act as subjects of property and obligation relations (jus commersii). However, since the classical period, this right has been recognized for them, although in a limited form. Barbarians (foreigners), heretics, Jews with the victory of Christianity were limited in their legal status, especially in inheritance law. Restrictions were also introduced for columns. In particular, they were forbidden to change their profession and marry persons of other professions. 3.3. Legal status of Latins, peregrines, slaves, freedmen The legal status of the Latins and peregrines. Latins. On the territory of Italy, and then outside it, in the Roman provinces, such a part of the population as the Latins lived. Initially, the ancient inhabitants of Latium (latinii veteres) and their offspring were called Latins. After in the I century. BC e. Roman citizenship was extended to the whole of Italy, the population outside the Italian communities or even provinces was considered Latins. Latins were also inhabitants of the Roman colonies (latinii coloniarh). The right position of Latin (latinitas) was acquired: by virtue of birth, appropriation of this position by an act of state power, voluntary transfer of a Roman citizen to the category of Latin in order to acquire land distributed to the population of the colonies, liberation from slavery by a master, Latin or Roman. The Latins, while in Rome, could participate in popular assemblies (ius suffragii), they had the right to acquire property (ius commercii), and some - the marriage right. Latins could relatively easily acquire the rights of a Roman citizen by virtue of the general acts of the Roman state or by virtue of special acts of the state. Peregrines. A considerable number of foreigners (peregrini) lived on the territory of Rome. They entered into one or another property relations with Roman citizens, but since they did not enjoy their rights, they were deprived of legal protection. Therefore, they looked for a patron or protector - a patron (patronus) from among the Roman citizens. For some time they lived by the law of the state of which they were citizens. In 242 BC. e. the position of praetor for foreigners (praetor peregrinus) was established, which dealt with disputes between the Romans and foreigners or between foreigners. It was on this basis that the so-called law of peoples (ius gentium) developed. Peregrinus was not a slave, but he was not a Roman citizen either. Naturally, he did not have political rights either. Although peregrines did not have legal capacity not only in the era of the republic, but partly even during the time of the empire, the economic processes that took place in the bowels of the Roman Empire led to the abolition of this situation. The sources of peregrine were: birth from a marriage with peregrine, the court sentenced to such a punishment as "deprivation of water and fire" (aquae et ignis interdictio) - was used during the period of the republic, an award to exile (was used during the empire). Peregrines could become Roman citizens: by virtue of law, as a reward for services rendered to the state, by virtue of a special act of power. The legal status of slaves. Slavery in its development went through two stages: patriarchal slavery and ancient slavery. Characteristic features of patriarchal slavery is that the slaves at this time are not numerous. They work mainly in the master's household and are, as it were, the lowest members of the family (familia). In agriculture, mainly the labor of the free was used. The number of slaves could not have been particularly significant in connection with the small land allotments of the Romans. In the craft, the labor of slaves was also not widespread. The main source of slavery was war. Prisoners of war became slaves, often even members of Latin tribes related to Rome. The second source of slavery was debt bondage. Previously free citizens who became unpaid debtors became slaves. An insignificant role in the first period of the development of Roman law was played by such a source of slavery as birth from a slave. In addition, some freemen were enslaved for crimes. It was criminal slavery. Slaves were also purchased for money, that is, by sale and purchase. As a general trend, a gradual increase in the number of slaves should be noted. The slave trade develops. In the middle of the IV century. BC e. a tax was imposed on the release of slaves to freedom. According to Titus Livius, the consul Gnaeus Manlius in the camp near Sutria, in an unprecedented way, passed a law in the tributary comitia on the payment of 5% to everyone who was released into the wild. As regards the legal status of slaves, they have always been regarded as things - servi res sunt, that is, slaves are things. This principle of Roman law was already in force in the earliest period, although then it may not have been sufficiently recognized, and probably not formulated with such clarity as in the period of praetor law. The slave was not considered a subject of law. He was his object, that is, he was not recognized as a person (servi pro nullis habentur). Therefore, they could not serve in the army and did not pay tax. The slave did not have the right to create a family. If by his actions the slave caused damage to third parties, then the master could extradite him to the victim, in the manner of the so-called noxal claim (actiones noxales) (claim for damages). But by doing so, the master, as it were, limited the limits and extent of his own responsibility for the actions of the slave. The master had the right to punish the slave, up to the deprivation of life (ius vitae as necis). As for the property status of a slave, every thing that was in his possession was considered to belong to the master. Often the master provided the slave with a small plot of land, cattle or a workshop, even other slaves, under the condition that the slave pay some quitrent. Such property, entrusted by the master to the slave, was called peculium (peculium). The master could take away the peculia at any moment. In order to pay dues, the slave had to sell something from his plot. Therefore, Roman law begins to recognize a certain legal force behind the actions of a slave. Slaves often made deals as navigators and captains. Of course, the master of the slave received the benefits from such transactions. The loss also fell on the master. Slaves even began to allow claims against their masters (actio de peculio), within the limits of the value of the peculium. State slaves received the right to dispose of half of the peculia provided to them by will. The position of slaves at all times in Roman history was difficult. It is not surprising, therefore, that the slaves resisted their masters, first in hidden forms, by damaging and breaking tools of labor, and then by escaping, killing their masters, and even armed uprisings, which were severely suppressed. Some laws and senatus advisers were clearly terrorist in nature. Back in the days of the republic, a law was passed according to which, in the event of the murder of a master, all the slaves who were in the house were sentenced to death. In 10 AD e. the Senate confirmed this law. Later, the jurist Ulpian commented on this decision of the Senate in the following way: “Since no house can be safe if the slaves, under pain of death, are not forced to protect their masters from the danger that threatens their lives both from home and from strangers, then introduced there were Senate decrees on the execution of the slaves of the murdered masters. Yet the general trend was to establish a relatively tolerant attitude towards slaves. During the period of the empire, there is a more active intervention of the state in relations between masters and slaves. Some imperial laws to some extent softened the personal position of slaves. The legal status of freedmen. Slaves set free by their masters were called freedmen (libertini). The totality of such persons can be considered a special estate. In ancient times, there were no restrictions on the emancipation of slaves. But during the period of the late republic and early empire, when the number of slaves noticeably decreases, state control in this area increases. By the Law of Elias Section 4 A.D. e. a master under the age of 20 had the right to free his slaves only if there were proper grounds. This was proved before a special commission (de causis liberalibus). If the slave was under 30 years old, then the permission of the same commission was required. The law declared invalid a release made to the detriment of creditors (in fraudem creditorum) in anticipation of the insolvency of the releaser. Slaves punished by the court for more serious crimes, in the event of their subsequent release, became peregrines and were evicted from Rome. Consequently, they did not become free citizens. The law forbade the bequest of all slaves. If the master had three slaves, then two could be released; with the number of slaves from 4 to 10, it was allowed to release half; with a number from 10 to 30, it was allowed to release a third of the slaves; with a number of 30-100, a quarter of the slaves was allowed to be released; at 100-500 - a fifth. But under no circumstances were more than 100 slaves allowed to be released. There were the following forms of liberation of slaves: a) manumissio vindicta or absolution through judicial process. Someone, most often a lictor, acting in the role of "assertor in libertatem", declares before the praetor that the slave is free and imposes a vindicta on him. After that, the master of the slave declares that he agrees to set him free, and, in turn, imposes a vindicta. The praetor confirms the decision of the owner of the slave. Since in this case a judicial form was used, we can speak of release by an imaginary litigation (in iure cessio); b) manumissio censu. The absolution was carried out on the basis of the entry of the slave into the list of citizens by the censor. At the same time, the slave declared that he was a Roman citizen, a person of "his right" (civis romanus sui iuris). Entry into the lists was done, of course, with the consent of the master; c) testamentary leave (manumissio testamento). The testator could expressly indicate in his will that after his death the slave would be freed, or he could impose the duty of absolution on his heir, i.e., in the order of a fideicommissaria libertas. In the first case, the testator probably wrote: "My slave Stich, let him be free." In the second case, the heir performed an act of absolution in relation to the slave by means of the vindicta - the praetor's baton of the liberation of the slave. Release to freedom without the above forms or with their violation was considered invalid. There were other, no longer formal, ways of letting slaves go free: a) an announcement among friends; b) an announcement in a letter to a slave (per epistolam); c) the master seating the slave at the table next to him (per mensam); It can also be noted that by decree of 380 AD. e. a slave who betrayed a deserting soldier received his freedom. And yet, in the final analysis, the libertines were limited in the sphere of private and public rights: they did not serve in the army; in the XNUMXst century n. e. they lost the right to vote at popular assemblies; they were not eligible to be included in the senate. But during the period of the empire, freedmen could receive full political legal capacity by special decree of the emperor. At the same time, they received full legal capacity in the sphere of private law. The emperor sometimes rewarded freedmen with a gold ring (ring). Hence the right of the ring (ius aureum). Such freedmen during their lifetime became completely independent of their former masters. 3.4. Legal entities The concept and legal status of a legal entity. In modern society, subjects of law are not only individuals, but also legal entities. Roman lawyers did not single out the concept of a legal entity as a special subject. It was assumed that only people can be holders of rights - "... All rights are established only for people ..." (D. 1. 5. 2). There was no such name as "legal entity" in Roman law; according to research, there was not even a special term in Latin to designate an institution. Roman jurists recognize the fact that rights belong to various organizations. But organizations were compared to the individual, and it was mentioned that the organization acts instead of the person (personae vice), instead of individuals (privatorum loco). However, already in the Laws of the XII tables, various private corporations of a religious nature (collegia sodalicia), professional associations of artisans, etc. were mentioned. The Laws of the XII Tables also allowed almost complete freedom to form colleges, associations, etc. Such associations, created by private individuals at their own discretion, did not need prior permission or even subsequent sanction from the state authorities. They could adopt any provision (charter) for the purposes of their activities, as long as there was nothing in it that violated public laws; three people were enough to create a collegium (tresfaciunt collegium - three people form a collegium). This order, borrowed from Greek law, lasted from the Preclassic period until the end of the Republic. With the transition to a monarchy, the free formation of colleges proved politically problematic. For example, Julius Caesar banned all corporations, except for those that arose in ancient times, citing some abuses that took place on the basis of the free formation of colleges. In the XNUMXst century BC e. Emperor Augustus issued a special law on colleges (lex julia de collegus), introducing a permissive system for establishing corporations - all corporations (except religious and some privileged ones, such as funeral societies) were to arise only with the prior permission of the senate and the approval of the emperor. In the ancient republican period, it was not recognized that an organization could have property. Such property was always attached to the members of the corporation and was indivisible only for the period of its existence. In the event of termination of the corporation's activities, the property was divided among the last composition of its members. The corporation as such could not act in civil proceedings on its own, but only as a group of its founders. At the same time, Roman lawyers thought about the nature of a legal entity, and also drew attention to the fact that in some cases the property does not belong to individual citizens, but is assigned to some association as a whole, and its individual members turn out to be separate in relation to property rights: - Roman jurist Marcian noted that theaters, stadiums and similar property belong to the community itself as a whole, and not to its individual members, and if the community has a slave, this does not mean that individual citizens (members of the urban community) have some a share of the right to that slave; - The Roman lawyer Alphen compared the legion and its property with a ship on which one part or another periodically has to be changed, and a moment may come when all the components of the ship will change, and the ship will be the same. So, Alphen argued, and in the legion: some leave, others re-enter, but the legion remains the same. An understanding is emerging that in some cases rights and obligations do not belong to simple groups of individuals (as is the case with a partnership agreement), but to an entire organization that has an independent existence, regardless of its constituent individuals. The jurist Ulpian said that in a corporate association (universitas) it does not matter for the existence of the association whether the same members remain in it all the time, or only a part of the former ones, or all are replaced by new ones; the debts of the association are not the debts of its individual members, and the rights of the association do not in any way belong to its individual members. This is clearly seen when comparing a corporation (universitas, collegium) with a partnership (societas). In a partnership, any change: the death of a participant, withdrawal from the partnership, entry of new members, entailed the conclusion of a partnership agreement in a different composition, i.e., the formation of a new partnership. In a corporation, the departure or entry of members does not affect the existence of the corporation itself in any way, unless the loss of members exceeds the minimum number of members required by law. There is another difference: in a partnership, each of the members has a certain share in the property, which is allocated to him upon his retirement; on the contrary, in a corporation all the property belongs to the association itself and therefore the withdrawing member does not have the right to demand the allocation of any share of this property. A legal entity terminated its activity: - voluntarily by decision of its members; - when the number of members is reduced below the minimum allowable number (three); - when corporations of the corresponding type are prohibited by the state; - when the state prohibits a particular corporation due to the illegal nature of its activities; - when achieving the goal of their activities. On the basis of the charter, an individual was elected to conduct the affairs of a legal entity, in urban communities it was an actor, and in charitable institutions - oeconomus. Thus, legal entities in Ancient Rome played a lesser role than individuals, since the main attention was paid to the individual subject as the central figure of ancient society in the norms and doctrine of Roman private law. Types of legal entities. Legal entities include: the state, the imperial throne, political communities, free unions, church institutions and charitable institutions, lying inheritance. State. The state in the field of property relations received the name fiska in imperial times. In the time of transition from the republic to the empire, under Augustus, as is known, the division of the provinces between the Senate as the body of the old republic and the princeps took place: in turn, the division of the provinces, from which the main revenues of the state flowed to Rome, made it necessary to have a double state treasury - the Senate and imperial. The first was the erar of Saturn, who was in the administration of the senate; the second was called fiscus, the order of which belonged to the princeps; it also received income from those taxes that were newly introduced by the emperors (for example, a 5% tax on inheritances (vigesima hereditatum), 1% on things sold by auction (centesima rerum venalium), etc.). There was no single fiscal cash desk; there were different provincial cash desks; the military cash desk was not even called fiscus, but erara (aerarium militare). But fisk still remains a name that unites the individual imperial funds, which, moreover, were under a certain central leadership, concentrated in the hands of the imperial procurator (a rationibus). Fiscal property was considered the private property of the princeps as the first citizen of the Roman people, while in relation to the erar, civil society represented by the senate remained the subject of property law. Imperial Throne. Under the Severas, who dated from the absorption of the ancient folk erar by the imperial fiscus, an important, also from a legal point of view, separation of the imperial crown property from the imperial private property took place. In addition to fiscal property, which belonged to the state in the person of the emperor, the latter had his own special property (patrimonium), which he could freely dispose of (inter vivos and mortis causa). However, at the death of each emperor, the question should have arisen of what part of his property he could dispose of in favor of his children or relatives excluded from the throne, and what part was to go to his successor to the throne, even if this one was not the heir to the reigning emperor according to civil law, especially since many acquisitions in favor of the imperial fund were made precisely in view of the position of the princeps as a princeps, and not as a private person. This includes confiscated property of convicts, as well as refusals on wills: under emperors such as Caligula, Nero and Domitian, it was even considered a rule that wills that did not contain orders in favor of the emperor were recognized as void in order to make it possible to open an inheritance to the fiscus , as Suetonius testifies. Thus, in the person of the emperor, threefold property should have been distinguished: fiscal in the sense of state, crown and purely private property. This separation was also expressed in the organization of a special management of one and the other property, and the management of state-fiscal property remained separate from both. In particular, with regard to the separation of crown property from private imperial property, the former, of course, did not become a person, but remained property; but this isolation expressed the idea that the imperial throne itself exists as a permanent legal institution, requiring for itself an equally constant provision with certain property, the subject of which is every reigning sovereign as such. Therefore, the legate left to the emperor and not received by him after death is received by the subsequent emperor. The privileges that were granted to the fiscus were transferred to the property of the emperor, both crown and private, and even to the property of the empress - a clear sign that the privileges were not rooted in the idea of a legal entity, because, for example, in relation to obtaining a legate between a distinction is made between the emperor and the empress, and in sovereignty, which is the bearer of the emperor and the empress. From this point of view, they found it necessary, even theoretically, to maintain the privileged position of the emperor and empress in property relations, no matter what property was discussed - fiscal, crown or private imperial. political communities. These include: 1) cities and colonies. The city is designated in the sources by different names: civitas, respublica, municipium, municipes. In their historical origin, the colonies, of course, differed significantly from the municipalities. The municipalities were brought into the Roman civitas, and the colonies were taken out of it, as Aulus Gellius put it. In other words, the municipalities were formed from the Peregrine civitates, which entered the sphere of power of the Roman people, and the colonies were inhabited by Roman citizens at the behest of the state power. With the extension of Roman citizenship over the whole territory of the empire, the distinction between colonies and municipalities was bound to disappear, so that both the civitates introduced into the empire and the colonies withdrawn from it (coloniae deductio) became equally municipalities with a certain amount of state rights and with a certain circle of self-government. The jura minorum was transferred to the cities, and the cities were also given the right of satisfaction over other creditors from the debtor's property (privilegium exigendi) and the legal lien on the debtor's property, not to mention the fact that pollicitation in favor of the cities was encouraged in every possible way; 2) associations of Roman citizens. Until the process of extending Roman citizenship to all the Peregrine civitates was completed and until the latter became municipalities of the Roman Empire in the last days of the Republic and in the first two centuries of the Principate, the Roman citizens of various crafts and trades who lived in the Peregrine cities constituted a special unit. (conventus civium romanorum), which was recognized as having the right to have conventions. Such conventions could also be in Italy, outside the territory assigned to the cities. Under the concept of a convention would not fit the totality of Roman citizens of any one trade profession, who received a settlement in any Peregrine city or outside the municipal territory. It would have been a college rather than a convention, the concept of which required that it be self-contained; 3) villages (vici, pagi, castella, fora, conciliabula, praeffecturae). Pagi - local settlements within an urban area; some of them, with the growth of the city, later became part of the city itself, as was the case in Rome. Pagi was also designated by another term, but in particular the latter name was applied to those settlements that arose in imperial and other (senatorial, ecclesiastical) latifundia or domains (saltus) and consisted first of free small tenants - Roman citizens, and later of those attached to earth (glebae adscripti) columns. Saltus were not included in the territorial districts of cities at all and in themselves constituted a territorial, quasi-municipal district, so that if in the Roman world something similar to a modern independent rural community existed, then not in the territories of cities, but in saltus, which, for example, are especially African saltus. The fortified villages were called castella. On the other hand, fora and conciliabula had that common feature with the colonies founded by the state; they were official. So, fora were arranged by the Roman magistrates on military roads. At these points, in the absence of their own judicial magistrates, the praetor held court at certain times of the year, but these same points could also serve as places for a fair (conciliabula). Prefectures could include vast areas; thus the ungrateful or treacherous cities were subject to the regime of the prefectures. In general, the prefectures were understood to mean those communities that did not have their own magistrates or had such that were completely or partially deprived of jurisdiction and therefore had to receive jurisdiction from Rome, i.e. de jure they were subject to the jurisdiction of the urban praetor, who exercised that through his praefecti juri dicundo. From the point of view of the sources of Justinian law, fora, conciliabula, praefecturae already seem to be archaic institutions. As for settlements in general, perhaps only those of them that had an independent existence, not as constituent parts of an urban district, but outside the urban territory, had the rights of a legal entity for the area of property relations; 4) provinces. In the Theodosian code there are clear indications that the provinces, that is, the vast districts, including several cities, were considered as a legal entity in the field of property relations (commune provinciae). In the provincial assemblies, held in the metropolis, or the chief city of the province, the delegates from the cities discussed the general affairs of the whole corporation; petitions for various difficulties were addressed to the emperors, and the imperial rescript in response was also directly addressed to the community. Free unions. Free associations were understood as societies, colleges, which did not constitute an integrating part of the state structure, but which, nevertheless, were or tried to give themselves a more or less public character by connection with a cult or the exploitation of a craft important from the point of view of public life. The varieties of colleges are as follows: religious colleges in the proper sense, funeral colleges, colleges of artisans, colleges or decuries of subordinate service personnel, partnerships of publicans, that is, publicans or publicans. 1. Religious colleges. Between religious colleges in the proper sense, one must distinguish between public priestly colleges and other religious colleges. The difference between the two was that the official priestly colleges did not cover a certain isolated group of cult worshipers with organized communication, while the rest of the colleges had a communal organization. In other words, the official colleges were only colleges of priests who were attached to this or that temple, to which the communities of believers were not confined. 2. Funeral colleges. Funeral colleges (collegia funeratitia) should be classified as religious colleges, or at least in the closest connection with them, because the Romans gave the burial places a religious character, as a result of which they were even ranked among the "things of divine law" (res divini juris) and because colleges of this kind, in all likelihood, came under the protection of some particular deity, whose cult was a special cult of the college. The members of these colleges, who could even be slaves with the consent of their masters and who were generally recruited from the lower, insufficient classes of the population (tenuiores), met once a month to pay and collect membership dues, from which the general fund of the colleges was compiled, but for religious purposes they could gather and more often. In the event of the death of one of the members, a sum of money (funeratitium) was issued from the general fund to cover the costs of burial. 3. The same must be said of collegia sodalitia, or simply sodalitia, for which the religious purpose served only as a pretext, and which were really clubs for public entertainment, but at the end of the Republican period became political clubs to support the candidacy of this or that person, well who paid for this support, and as a result became a source of confusion and danger to the government, which banned them. 4. Colleges of artisans. In imperial times, hereditary guilds were formed, whose members, together with their descendants, had to perform a certain craft as a duty in favor of the state, which, in return, freed them from bearing other duties or burdens. Guy cites the example of such colleges with corporate rights of bakers or bakers (pistores) in Rome and shipbuilders (navicularii) in Rome and in the provinces. Bakers and shipbuilders, indeed, until the time of Justinian, retained the most important significance for public life as they acted to supply the capitals with food. 5. Boards or decuries of subordinate service personnel. Persons of subordinate service personnel were generally called apparitors and were subordinate to the magistrates. Decuria in the proper and original sense of the word means a branch of ten persons, established in the interests of the administration, or a branch of a corporation, divided into dozens; but later the term became so technical that it was applied also to such corporations of this kind, which did not break up into branches. 6. Societies or associations of publicans. Publicans among the Romans were called persons who took from the state for rent or at the mercy of any kind of state income. In general, the Roman administration was distinguished by the peculiarity that it preferred, so to speak, wholesale operations, leaving the details and individual transactions to private entrepreneurs. Thus, even spoils of war and property acquired by the state through confiscation or as escheat were sold in their entirety, after which the buyer was given a retail sale. In the same way, the collection of various taxes and duties was carried out not by state officials to the state treasury, but by private individuals who pledged to pay a round sum annually to the treasury. Under the emperors, however, decisive steps were taken to establish state control over the collection of taxes, and, as one might think, the Ptolemaic system of financial management that dominated Egypt before conquering it by Rome served as a model. The most significant of the publicans were publicans, who rented tithes (decumani), customs duties (portitores), public pastures (pecuarii, scripturarii). Large capitals were required for the operations of the publicani, especially since the territory of the Roman state received an enormous expansion and the income from the vast provinces began to be leased. Therefore, only those persons who had the highest qualification, that is, belonged to the class of horsemen, could be tenants. Publicans were given a sign of legitimation - a gold ring, which served as an honorary distinction. Naturally, in order to carry out such an enterprise, which required large amounts of money, capitalist partnerships were already formed in ancient times. The huge capitals that the publicans, who had profited from farming out in the provinces acquired by Rome, began to dispose of, made it possible to implement the farming business in the form of an ordinary partnership, and, on the contrary, the need for them should have been felt more strongly when large capitals began to hide. And taking into account that during the time of the empire, government control began to be established over the tax-farmers, and the employers themselves began to turn into half-employees, and, moreover, the responsibility for the accurate payment of taxes began to be assigned to the cities with their decurions or curials, and the supply of various necessary materials was assigned to well-known colleges - workshops, it can be assumed that in general the time of the prosperity of the publicans as a rich and powerful class and the time of the existence of publican partnerships as legal entities do not decisively coincide and that the historical period during which partnerships were legal entities was not particularly long. Church institutions of the Christian time. Under the Christian emperors, church institutions were legal entities, and precisely in the person of their administrators. According to the legislation of Emperor Justinian, in addition to the episcopal church, which was originally the only church institution endowed with the rights of a legal entity in the person of its bishop, churches, monasteries and charitable institutions are classified as legal entities. 4 Theme Family law relations. Roman family 4.1. General structure of the Roman family The main features of the family structure. The legal structure of the Roman family is one of the specific Roman legal institutions. Only a Roman citizen could enter into a Roman marriage and found a Roman family. The main features of the family system were expressed in Roman law with exceptional completeness and consistency, and their changes marked profound changes both in the conditions of the economic life of Rome and in the ideology of its ruling classes. So, the field of family law in Rome begins with a monogamous family, which was based on the power of the head of the family and householder (paterfamilias). All members in such a family are subject to the authority of one. This is an agnatic family, which, in addition to the head of the family, included: his wife (in manu mariti), i.e., subordinate to her husband’s authority, his children (in patria potestate), wives of sons who were married cum manu and subordinates not to the power of their husbands who were themselves subject to the head of the family, and the power of the latter, and, finally, all the offspring of subject sons: grandchildren, great-grandchildren, etc. All members of the family subject to the head of the family were called sui. In such a family, only the householder was a fully capable person (persona sui iuris), while the rest of the family did not have full legal capacity (personae alieni iuris). Hence the expression that the wife is loco filiae in relation to her husband, the mother is loco sororis in relation to the children, etc. Sons and grandchildren do not receive freedom from subjection to paternal authority, even if they receive the position of magistrate. Does not release from the power of the head of the family and no age of the subject. It stops only with death or at the will of the householder. The concept of agnatic and cognatic kinship. In Roman law, two types of kinship were distinguished. 1. Agnathic relationship. The submission to the power of the head of the family determined the agnatic kinship, on the basis of which the Roman family was based. The daughter of the pater familias, who married, came under the authority of the new householder. She became the agnatic relation of the new family and ceased to be the agnatic relation of her own father and the members of her former family. "Agnates are those who are connected by legal kinship. Legal kinship is that which is formed through males" (Gai. Inst. 3. 10). Agnathic kinship could be close or distant. Close relatives were considered to be persons under the authority of a certain householder. Distant agnatic relatives are persons who were once under his authority. With the development of the economy, the transformation of Rome from a society of producers into a society of consumers, the power of the householder began to take on more definite boundaries; kinship by blood (cognatic kinship) became increasingly important. 2. Cognatic relationship. Cognatic relatives are persons who have at least one common ancestor. Blood relatives are: a) relatives in a direct or lateral line: - relatives in a straight line (linea recta) - persons descending from one another (grandfather, father, son). A straight line can be ascending (linea ascedens) or descending (linea descedens), depending on whether it is drawn from offspring to an ancestor or from ancestor to offspring; - lateral relatives (linea collaterales) - persons who have a common ancestor, but are not related in a straight line (brothers, sisters, cousins, nephews, etc.); b) marriage (legitimi) and illegitimate (spurn) relatives; c) full or half relatives: - full relativesgermani) are descended from the same ancestors; - Half relatives (consanguinei and uterini) come from the same father and different mothers (consanguinei), or vice versa, from the same mother and different fathers (uterini). Property (affinitas) is the relationship between the spouse and the cognatic relatives of the second spouse (for example, the property was between the husband and the wife's cognatic relatives). The degree of kinship was calculated by the number of births by which the compared persons are separated from one another: in a straight line - the number of births directly between these persons in ascending or descending order, and along the lateral line - the number of births from a common ancestor. The degree of properties was calculated in the same way as the relationship of the spouse (for example, the husband is a relative of the father-in-law of the 1st degree in a straight line). Roman history went through the development of families from agnatic to cognatic kinship: - the consortium (consortium) was the very first type of family - this is a family community based on agnatic kinship and arose after the breakdown of the clan into separate groups. At the head of the community was an elder, adult men decided the fate of the community at a general meeting; - the patriarchal family (familia) changed the consortium; - the cognatic family appeared later with the improvement of the legal status of persons who do not have full legal capacity (alieni iuris). The cognatic family was a union of close, only blood relatives living together. The cognatic family usually included the head of the family with his wife, children and other close relatives. The householder's power was no longer unlimited and was limited to prudent punishment ("ad modicam castigationem"). With the advent of the cognatic family, it began to be recognized that slaves could also have family ties (cognatio servilis); this position was new to the Romans. With a developed patriarchal family, when slaves were only a "talking tool", slaves could only cohabit and their family ties were not recognized. The consistent limitation of the power of the householder in all its manifestations: in relation to his wife, children and their offspring, and the parallel gradual displacement of agnatic kinship by cognatic kinship constitute the main content of the process of development of Roman family law. This development was carried out on the basis of profound changes in the economic life of Rome, under the influence of the course of its political history, simultaneously with a consistent change in the forms of ownership, the liberation of the contractual law of obligations from its original formalism. 4.2. Marriage and family relations Concept and forms of marriage. The Roman jurist Modestinus (23rd century AD) defined marriage as the union of husband and wife, the union of all life, the community of divine and human law (d. 2. 1. XNUMX). This definition, however, did not correspond to the actual state of affairs. The fact is that the first form of marriage in Rome was a marriage called cum manu - a marriage that established the power of the husband over his wife. Having entered into such a marriage, a woman fell under the authority of her husband or his householder and became an agnat in her husband's house. However, already in antiquity, a woman could escape the power of her husband. To do this, she had to marry without observing any formalities (sine manu) - a marriage that did not give rise to the power of the husband over his wife. If during the year after the conclusion of such a marriage a woman spent three nights in a row outside her husband's house, she did not become an agnat in her husband's house. This procedure could be repeated annually. If the wife did not leave the house, then she fell under the authority of her husband and the marriage turned into a marriage with the authority of her husband (cum manu). Marriage sine manu is a form of marriage based on the equality of spouses, the independence of the wife from her husband. The wife was the mistress of the house and the mother of the children. The rest of the issues were in the hands of the husband. Presumably in the second period of the Republic, this form of marriage replaced cum manu and became predominant. In the XNUMXst century BC e. a special form of marriage appeared - concubinage. This is a permanent cohabitation of two persons, neither of whom was married for the purpose of creating a vital community. During the concubinage, the rights of children and the concubines themselves were limited. Thus, children born by concubina were not considered legal, therefore they were limited in hereditary rights. Conditions for marriage. In order for a marriage to take place with the corresponding legal consequences, it was necessary that the spouses satisfy certain conditions. Some of these conditions were absolute, had to be available for the conclusion of any Roman marriage. Others practically played the role of relative conditions, the presence of which was necessary for marriage to take place between persons belonging to different social groups. The first condition for marriage was that the spouses should reach the marriageable age, which, coinciding with the age of majority, after some fluctuations, was set at 14 for men and 12 for women. The second condition was consent to marriage. In ancient times, this was the consent of the householder alone. The groom expressed his will if he was fully capable; a legally capable bride needed the consent of a guardian (auctoritas tutoris). However, a different view gradually developed: for a person who is not fully legally capable to marry, first of all, his consent and, along with it, the consent of the head of the bride’s family and the consent of both the head of the groom’s family and the person under whose paternal authority the groom may find himself with the death of the head families. So, consent to the marriage of a grandson is given not only by his head of the family - his grandfather, but also by his father, who is subordinate to the authority of the same grandfather, because after the death of his grandfather, the grandson will be under the authority of his father, to whom the son has no right to impose heirs, future children from the marriage. On the contrary, a granddaughter, entering into marriage, not only does not impose heirs on her grandfather and father, but she herself ceases to be their heiress, entering into the agnatic family of her husband. The head of her family gives consent to the bride to leave the old agnatic family. Thus, initially, all the provisions on consent to marriage proceeded from the same idea of authority on which the agnatic family rested in general. The father gave consent to the marriage of children not because he was the father, but because he was the head of the family, the bearer of paternal authority. But as the personality of the children begins to be emancipated from the once unlimited power of the head of the family, the interests and will of the children begin to be increasingly taken into account in the question of the consent of the householder to marriage. Thus, the Law of Julius (AD 4) granted descendants the right to appeal to a magistrate against the head of the family's unreasonable refusal to consent to marriage. The children were then allowed to marry without his consent if he was captured or missing. There were cases when consent to marriage was requested not from an agnatic relative, but from relatives by blood: a woman who, being under guardianship, could marry only after receiving the consent of the guardian (auctoritas tutoris), after the disappearance of guardianship over women was is obliged to ask for permission to marry from her father, and in the absence of her father - from her mother or other close relatives. The third condition for entering into a Roman marriage is that the spouses have the right to enter into a legal marriage. Obstacles to marriage in the absence of this condition could arise either from the belonging of the bride and groom to different strata of society (later estates), or from a family connection between them, or sometimes from other relations that existed between them. So, first of all, the Canulia Law (445 BC) did not allow marriages between patricians and plebeians. Before the first marriage Law of Augustus, the Law of Julius (18 BC), marriages of freedmen with freeborn were not allowed, and after the Law of Julius - with persons of the senatorial class. Further, kinship, and, moreover, both agnatic and cognatic, served as an obstacle to marriage: in a direct line without limitation of degrees, in lateral lines - in ancient times, apparently, up to the sixth degree; after the abolition of this rule and until the end of the republic - between persons whose mothers were sisters (consobrini), and whose fathers were brothers; finally, during the period of the empire, only between persons, of which at least one is a descendant of the first degree of a common ancestor for both, for example, between an uncle and a niece, an aunt and a nephew, etc. Imperial decrees more than once made exceptions to this general rule. In the period of the empire, property also became an obstacle to marriage in a straight line without limiting degrees, and under Christian emperors - in the lateral lines between a son-in-law and a sister-in-law. In addition, marriages between the guardian and the ward, the ruler of the province and the inhabitants of the latter were prohibited. Under the Law of Julius, marriages between a spouse guilty of adultery and his accomplice were forbidden. Ways of marriage. The marriage was preceded by betrothal. In ancient times, it was performed by the bride and groom with the consent of the heads of families. The betrothal took place in the form of a mancipation. At a later time, it took place without formalities. The party that violated the betrothal agreement lost the right to the gifts transferred by it to the other party, and also returned the gifts received from the party. Marriage was performed in Rome in three ways: 1) by performing a religious ceremony; 2) by buying a bride by the groom; 3) by simple agreement of the parties. The first two ways of concluding a marriage gave rise to "correct marriage", marriage with male power (cum manu). The third way of concluding marriage led to the establishment of "wrong marriage", marriage without male power (sine manu). A religious ceremony (confarreatio) took place in wealthy patrician families. This method was a magnificent ceremony, accompanied by eating cakes (bread), bringing food in favor of Jupiter. The ceremony took place in the presence of a priest and 10 witnesses. The bridegroom's purchase of a bride (coemptio) was carried out in the form of a mancipation, which was carried out by the householder. It took place in the presence of five witnesses, a weigher with scales and was accompanied by the pronunciation of certain words. A simple agreement of the parties did not require special marriage formalities. Marriage was considered concluded with the taking of the bride to the groom's house. With this method of concluding marriage, the power of the husband over his wife was established by a one-year uninterrupted exercise of marital cohabitation. Dowry and premarital gift. With the advent and spread of sine manu marriage, the custom arose to give the husband a special gift at marriage - a dowry (dos). The size of the dowry was determined by the woman herself (if she was sui iuris), the head of her family, or a third party. What was received from the father was called "in time" (dos profecticia), and received from other persons from the side of dos adventicia. Dowry consists of making property contributions in the form of movable and immovable property in order to facilitate the husband's forthcoming expenses related to family life. Regulation was by customary law, but in later times a father could be forced to give a dowry if he refused to do so in order to prevent marriage. The dowry was set as follows: - the promise of a dowry in the form of a stipulation (promissio dotis). The person who gives the dowry must transfer the corresponding property to the husband in the future; - also the promise of a dowry in the form of a verbal contract concluded in a solemn form (dictio dotis). It differs from stipulation in form: if during stipulation there must be an exchange of phrases, a question and answer sounds (Do you give? I give!), Then only the one who promises a dowry speaks in the form of a verbal contract - the head of the family, the woman herself or their debtor, and no exchange of question and answer is required. To fulfill the promise, an action could be brought if it was about money, or, on the other hand, if things were transferred as a dowry; - not a promise, but a direct transfer of property (datio dotis): could be performed by any act of the husband entering into possession of the dowry (mancipatio, traditio). Initially, it was believed that the husband could completely dispose of the dowry. However, in classical Rome, in order to avoid fictitious marriages for the purpose of obtaining a dowry, laws were passed that limited the husband in his rights regarding the property received. Now the dowry did not pass under the authority of the husband. Since the purpose of the dowry was to facilitate the bearing of the burdens of marriage (sustinere onera marimonii), the spouse had the right only to use the property and receive fruits from it to meet family needs. According to the law, the husband was forbidden to alienate landed property without the consent of his wife, to encumber her with a mortgage (in the time of Justinian, it was forbidden to alienate landed property in Italy even with the consent of his wife). The disposal of movable property included in the dowry was limited by the act of returning the dowry in the event of a possible dissolution of the marriage. To do this, when transferring the dowry, the cost was estimated, and if the marriage was dissolved, it was this amount that the woman's ex-husband had to return. With the strengthening of praetor law, a decree was issued that the dowry (or its value) was returned in all cases of dissolution of marriage through the fault of the husband. Rules for the return of dowry in case of dissolution of marriage: - in the event of the wife's death, the "ripe" dowry was returned to the woman's father (with a deduction of 1/5 of the dowry for each child born in this marriage), and the dowry received from other persons remained with the widower; - in the event of the death of the husband, the dowry was returned to the woman or her father. In the event of his death, the husband usually left a dowry by means of "dowry prelegates" (praelegatum dotis); - in the event of a divorce through the fault of a woman, the return of the dowry was limited. The husband had the right to keep 1/6 of the dowry for each child, but in general no more than 1/[2] of the dowry. If the divorce was due to the woman's infidelity, then another 1/6 of the dowry was withheld, and if due to other misconduct, then 1/8; - if the marriage was terminated at the initiative of the husband or through his fault, then if given, they were returned. A premarital gift (donatio ante nuptia) is property given to a woman by her future husband before marriage. The ban on gifts between spouses did not apply to gifts before marriage, and in the time of Emperor Justinian, the custom, borrowed from the East, spread to give some part of one's property to a future wife. Usually the size of the premarital gift was 1/2 of the value of the dowry. However, the wedding gift only fictitiously became the property of the wife. Gifted property kept the husband's control and served the same purposes of marriage as a dowry. If the husband died, then the premarital gift was inherited by the children, but the wife could continue to use it and receive fruits from the property. If there was a divorce on the initiative or fault of the husband, then the premarital gift was given to the woman on a par with the dowry. Thus, the premarital gift was a kind of guarantor and compensation in a divorce. Under Justinian, the value of the prenuptial gift was equalized with the value of the dowry, and the rule that the size of the gift could be increased during marriage (donatio proper nuptias) began to apply, despite the existing prohibition of gifts during marriage. Divorce and its types. Roman marriage ended for several reasons. 1. Death of one of the spouses. In the event of the natural death of his wife, men could immediately remarry. For women, a period of mourning (tempus lugendi) was established, during which a woman could not marry. 2. Loss of freedom (capitus deminutio maxima) by one of the spouses, i.e., turning him into slavery. Since only cohabitation is possible with a slave, and marriage is impossible, a legal marriage was considered terminated. If the loss of freedom occurred due to the capture of a spouse, then the woman could no longer marry, since the husband could return. In the time of Justinian, the waiting period for the return of a husband from captivity was limited to five years. 3. Loss of citizenship (capitus deminutio media) by one of the spouses. Marriage continued to be considered valid only according to natural law. 4. Derogation of civil legal capacity in the form of incest (incestum superveniens). If, as a result of adoption, the spouses became agnatic relatives, marriage between which is impossible, then their marriage was dissolved. For example, if the head of the daughter's family adopted a son-in-law, he became, as it were, the brother of his own wife. This could have been avoided only by first making the daughter legally capable. 5. The will of the head of the family. In a sine manu marriage, in which the woman remained under the authority of her father, the head of the family could reclaim the woman, thereby depriving her of the opportunity to live together. In marriages between not fully capable, any of the householders could, at will, terminate their marriage, declaring it cohabitation. 6. Divorce. In ancient Rome, only a man could initiate a divorce. A marriage could be terminated if a woman behaved inappropriately: drunkenness, adultery, infertility, and even a miscarriage. Divorce as such (divortium) became widespread with the increased popularity of sine manu marriages. Dissolution of marriage became possible both at the will of the husband (repudium) and at the will of the wife, as well as by mutual consent of the spouses. 7. Appointment of a freedwoman's husband as a senator. This ground for dissolution of marriage was abolished in the time of Justinian. The forms of divorce were the announcement of a divorce in front of witnesses (in the era of Augustus, the number of witnesses was set at seven people), a written agreement, the actual termination of cohabitation. Since the postclassical era, with the introduction of Christian morality, strict prohibitions have been placed on divorce. There are the following types of divorces: 1) divorce with bad consequences (divorium cum damno): - through the fault of one of the spouses (repudium ex iusta causa) (adultery, serious crime, immoral lifestyle); - without the fault of the spouse (repudium sine ulla causa), i.e., an incorrect one-sided dissolution of the marriage. Such a divorce was punishable by strict sanctions - from the seizure of the dowry to expulsion, but the marriage was considered annulled; 2) divorce without consequences (divorium sine damno): - Divorce by mutual consent of spouses (divortium communi consensu); - divorce at the will of one of the spouses (divortium bona gratia). Such a time of water was possible only for a good reason: impotence, going to a monastery, etc. 4.3. Legal relations between parents and children Relationship between mother and children. The relationship between mother and children differed depending on whether the mother was married cum manu or married sine manu to the father of the children. The mother, married cum manu, is mother to children (loco sororis) for children and together with them is subject to the authority of her husband (or to the head of his family, if the husband is under the authority of the householder), she inherits on an equal basis with children after husband; the mutual right of succession connects her, as the agnat of her children, with those of them who came out of her husband's patria potestas. As agnates, her sons take care of her after the death of her husband. After the connection of the head of the family with his subordinates, the connection between the mother and the children was the closest. In a sine manu marriage, it was the other way around: the mother was not legally related to the children. She remains the agnat of her old agnates, that is, she is a member of her old family, where she inherits and whose members inherit after her. In such a marriage, the mother is not a member of the family of her children. However, just as the legal estrangement of husband and wife in sine manu marriage has been greatly softened over time, it has been almost eliminated in the relationship between mother and children born from sine manu marriage. The cognatic, blood, connection gradually began to serve as the basis for the right of the mother to coexist with her minor children who were under the guardianship of an outsider or even under the authority of the husband with whom the mother was divorced, later even for the mother to exercise custody. The mother was given the right to alimony from the children, the children were forbidden to sue the mother, to bring her to court without the permission of the magistrate, to limit the limits of her property liability to the children. Finally, the senatus-consultants of the second century, and then the imperial constitutions, established and successively extended the mutual rights of inheritance of children and mothers who were married sine manu, admitted by the praetor. Relationship between father and children. The relationship between fathers and children was built differently. It was immaterial to this relationship whether the father was married cum manu or sine manu. Children are always under the authority of the father, in patria potestate. Initially, this power was unlimited, but in connection with the development of slavery, the collapse of the former peasant family and the development of crafts in the cities, the power of fathers over children began to soften. The sons increasingly began to run an independent household. Along with this, the sons acquire an independent position in the standing army and in the state apparatus. Already in ancient times, the power of the paterfamilias over the personality of children was moderated by the influence of the family council, whose judgments were not legally binding, but also could not, in accordance with public opinion, be ignored when imposing severe punishments on children. At the end of the republic and at the beginning of the imperial period, a number of direct restrictions were introduced on the rights of the paterfamilias over the identity of children. The right to sell children was limited to cases of extreme need and extended only to newborn children. The right to throw away children was abolished. Imperial decree of the XNUMXth century. equated the murder of a son with any murder of close relatives. According to another, earlier (XNUMXnd century AD) decree, the authorities could force the father to release his son from patria potestas. Finally, dependent children were granted the right to apply to the magistrate extra ordinem with complaints against paterfamilias, as well as the right to demand alimony. In the sphere of property relations, dependent children were, apparently, early admitted to making transactions on their own behalf. But all the rights from such transactions (just as from the transactions of slaves made ex persona domini) arose for the paterfamilias. The paterfamilias did not receive obligations from these transactions. The delicts committed by the subject served as the basis for actiones noxales against paterfamilias for compensation for harm or extradition of the subject to the victim to work out the harm caused to him. Simultaneously with the consistent limitation of the husband's power over his wife, on the one hand, and in parallel with the expansion of the range of legal consequences from slave transactions, on the other hand, the process of gradual recognition of the property legal capacity and legal capacity of subject children was also carried out. The praetor began to grant against the paterfamilias the same actiones adiecticiae qualitatis from the transactions of the subject, which he granted on the basis of the transactions of the slaves. But the subjects themselves, after they had become legally capable, began to be recognized as responsible for these transactions not by natural law, like slaves, but by civil law. At the same time, if the peculium, which was often allocated to a subordinate son, continued to be recognized as the property of the head of the family (peculium profecticium), then certain groups of property appeared, the rights to which began to arise in the person not of the paterfamilias, but of the subordinate son. Under the influence of the creation of a permanent professional army, military booty was recognized as such property, as well as all property acquired by the son in connection with his military service: the householder had no right to take away this property from his son, the son not only freely used this property, he had the right and to dispose of it, in particular to bequeath it (first during the stay in military service, and starting from the XNUMXnd century AD, regardless of the moment the will was drawn up). However, in the event of the death of a son without a will, this property passes to the father without burdening the father with the obligations of the deceased son. The rules established during the period of the principate for property acquired by the son in military service were transferred during the period of the empire, in connection with the creation of a large administrative apparatus of the princeps, to property acquired in the civil service: state, in court or church positions. So, from the IV century. n. e. a military peculium gradually took shape, when the property was at the complete disposal of the son. After the death of the mother, who was married sine manu, the children received the right to inherit, but the claims from the householder remained. Only in the IV century. n. e. it was declared that the property belongs to the children, and the head of the family received the right to use and manage it for life. Subsequently, property inherited from relatives on the maternal side was consistently put in the same position. The development culminated in the decree that the householder retains the right of ownership only to property consisting in the possession of children, which is either acquired (ex re patris) at the expense of the father, or received (contemplatione patris) from a third person who wants to create a certain advantage for the head of the family, as well as on property which the father gave to the dependents, wishing to give it as a gift, but which remained the property of the father due to the invalidity of transactions between him and the dependent children. All other property belongs to the subject, who has the right to dispose of them during his lifetime and only has no right to bequeath this property, which passes after the death of the subject to the father, burdening the father with the duties that are part of this property. Termination of the power of the head of the family (patria potestas). As already indicated, the power in the family was for life and normally ended with the death of the head of the family. During his lifetime and regardless of his will, it ceased only with the acquisition by the son of the title of flamen dialis (the position of the supreme feather-beds, on which the sacred aspects of royal power were transferred), the daughter - the title of vestal (the vestals maintained the sacred fire, led a chaste lifestyle, took a vow of innocence had no bodily defects). In later imperial times, the power of the head of the family ceased with the acquisition by the son of the title of consul, commander-in-chief or bishop. But the head of the family could himself put an end to his power over his son or daughter by emancipation (emancipatio). A form of emancipation was the use of the rule of the Laws of the XII tables that the threefold mancipation of the subject terminates paternal authority: the head of the family mancipated the subject three times to a trusted person, who three times released the subject to freedom. After the first two times, the subject returned to the power of the head of the family, after the third he became legally capable. In the VI century. n. e. these formalities were no longer necessary. After emancipation, the father retained the right to use half of his son's property. The position of legitimate and illegitimate children. Children were considered legitimate (iusti): - born in legal marriage (iustae nuptiae) by his own wife not earlier than 180 days after the start of marriage; - born no later than 300 days after the termination of the legal marriage. Subject to the above conditions, children were considered agnates of their family and fell under the authority of their father. Children were considered illegal (iniusti naturales): - born in an illegitimate marriage, valid only by the law of nations; - children born in concubinage (liberi naturales); - illegitimate children (vulgo quaesiti). Illegitimate children were born from unions not recognized by law or even forbidden. All illegitimate children are not legally related to their father and are related (cognatic) to their mother and her relatives. If their mother was a legal person, they were also born legally capable. If their mother was a person not quite legally capable, then the question of whether these children would be included in the family depended on the head of the family. In classical law, the position of illegitimate, illegitimate children improves. They are entitled to alimony from the mother, her relatives. Regarding children born in the concubinage, alimony could also be demanded from the father (since he was known during the concubinage), they could also claim a share in the father's inheritance, but only if he had no other legitimate children. Legalization. Legalization (legitimatio) developed in the era of Justinian. Through legitimation, an illegitimate child could receive legal status. However, only a child born from cohabitation could be legalized. There were several ways to legalize: - "through the donation of the curia" (legitimate per oblationem curiae). This method implied that the head of the family paid a sufficient amount for their son (in the case of a daughter, her husband) to enter the office of decurion (ordo decurionum). This position was not very popular, since the decurions were responsible for collecting taxes and their receipt in the treasury. The receipt of a fixed amount was to be ensured regardless of the amount actually collected; - the entry of parents into marriage after the birth of a child (legitimate per subsequens matrimonium); - by issuing a special decree for the emperor (legitimate per rescriptum principis). This could be resorted to if marriage was impossible for good reasons, for example, in the event of the death of the mother. Guardianship and guardianship. Guardianship and trusteeship is a legal institution that serves to fill the missing or limited legal capacity of a person through the actions of other persons appointed or elected - guardians or trustees. People fell under guardianship for health reasons, age, spendthrifts, women, insane. The difference between guardianship and trusteeship was expressed in the order of activity of the guardian and trustee. In ancient times, guardianship was established not in the interests of the ward, but of persons who were his closest legal heirs. Its main task was to protect the property of the ward in the interests of his heirs. Therefore, the order of calling to guardianship (if the guardian was not appointed in the will) coincided with the order of calling to inheritance, that is, the closest agnate of the ward was the guardian. In ancient times, guardianship was not the duty of the guardian, but his right, more precisely, the power of the guardian over the property and personality of the ward, close in content to the power of the head of the family. Gradually, however, the rights of the guardian begin to be understood as a means for the implementation of his duties. These changes, closely related to the progressive weakening of tribal ties, gradually transform the concept of guardianship as power into the concept of guardianship as a public service (munus publicum). In this regard, along with the two above-mentioned orders for the establishment of guardianship (due to agnatic kinship with the ward and according to the will of the head of the family), a third order arises - the appointment of a guardian by the state. At the same time, state control over the activities of guardians gradually developed. Special grounds (excusationes) are established on which it is possible not to accept the appointment of a guardian. A system of claims is being developed against the guardian in cases of failure to submit a report on the conduct of the affairs of the ward and in cases of not only embezzlement, but also negligent conduct of affairs. Then it becomes customary to demand that the guardian, when he takes office, provide security (satisdatio rem pupilli salvam fore), and during the period of empire, a legal mortgage of the ward is introduced on all the property of the guardian. 5 Theme Real rights 5.1. The doctrine of things and their classification The concept of things. The concept of things in the classical period in Roman law was used in a broad sense. It included not only the things of material objects of the external world, but also legal relations and rights. The term "thing" (res) was used in several senses. Things were considered as everything that exists in the material world (from this point of view, the term "thing" was used not only by lawyers, but also by the philosophers of ancient Rome), as well as objects of property rights and legal relations in general. In the most general way, things were divided into: 1) things of Divine right (sacred, holy and religious). The things of Divine right included temples, the land on which they were located, tombs, sculptures of gods; 2) human right things: - public, belonging to the political community of citizens. These things included theaters, stadiums, rivers, the use of river banks; - private, owned by individuals. Private things, in turn, were also divided into groups. Classification of things. In Roman law, in addition to corporeal and incorporeal, there were other categories of things: 1) withdrawn and not withdrawn from circulation; 2) manipulable and non-manipulable; 3) simple and complex; 4) consumed and non-consumed; 5) divisible and indivisible; 6) main and secondary; 7) determined by generic characteristics and individually defined; 8) movable and immovable; 9) corporeal and incorporeal. Items withdrawn and not withdrawn from circulation. Things withdrawn from circulation (res extra commercium) are those things that satisfied the needs of the whole people, and therefore could not be the subject of private legal relations. These included objects of religious content (temples, public roads, objects of religious worship, burial places, etc.), as well as objects of general use (air, never-ending rivers, seashores, etc.). Things not withdrawn from circulation (res in commercio) are those things that satisfied the interests of individuals and were the subject of sale, exchange, etc. They included most of the things that were not included in the group withdrawn from circulation. Manipulable and non-manipulable things. Mancipated things (res mancipi) are Italian lands, buildings on them, slaves, draft animals and land servitudes. Italian lands were transferred exclusively through mancipation. All land belonged to the state. The following land plots belonged to the Italian lands: - ager vectigalis - quitrent lands, i.e. land plots that were leased indefinitely (initially - for a 5-year period) and with the right of inheritance; - ager privates vestigalisque - land sold by the state or community to private individuals. The peculiarity of this method of acquiring land plots was that the acquirer became the owner of the right to use the plot (albeit inherited). In addition, the acquirer was obliged to pay rent for the use of the acquired land. This form of land tenure can be seen as a transitional stage between public and private land tenure; - ager quaestorius - state land, which was sold for temporary private use with the establishment of the obligation of the acquirer to pay lease payments. A feature of this type of transfer of land for private use was that this transaction could be canceled at the discretion of the state and the corresponding land plot could again be turned into state property; - ager occupatorius - state land plots with natural boundaries (rivers, mountains, etc.). A feature of the legal regime of these land plots was that they were not processed until they were transferred to private hands. The method of acquiring these land plots was occupation (capture) by patricians. The use of land plots was legally considered temporary, but in fact the land eventually became the property of those who seized it; - adsignatio - transfer to private ownership of identical (having a square shape) land plots of state land. These land plots were small in size; their distribution was massive and took place in a solemn atmosphere; - ager locatus ex lege censoria - state land plots leased to the person who made the most advantageous offer (i.e. land plots transferred by competition); - ager colonicus - Italian lands that were to be transferred to private ownership by the colonists. Mancipation took place in a complex form and with the participation of five witnesses. An error in at least one word in the process of manipulation automatically led to the invalidity of the transaction. Unmancipated things (rex pes mancipi) - all other things. The difference between the two groups of things consisted in the way of alienation. Non-mancipated things were alienated by a simple transfer - traditio, while the alienation of manipulable things required the fulfillment of special formalities (the rite of mancipation - mancipatio). And this is not accidental, since the main means of production belonged to the group of the mancipated. Since they belonged to the community (collective), the latter was interested in maintaining the right to them. This explains the introduction of the rite of mancipation in order to prevent the loss of the right to the main means of production. The division of things into manipulable and non-manipulable persisted until the beginning of the empire. Simple and complex things. Simple things, according to Pomponius, constituted one whole, a physically homogeneous unity, such as, for example, a slave, a log, a stone. Complex things were divided into two types: a) composite, including several interconnected bodies (cabinet, ship, house); b) consisting of unrelated things, but united by a common name (people, legion, herd). Things movable and immovable. Movable things (res mobiles) - things that can change their position in space. Movable things could move themselves (animals, slaves) or could be set in motion by others (furniture, household utensils). Immovable things (res immobiles) - things that cannot change their position in space without maintaining integrity. These are houses, buildings, land plots, bowels of the earth. Movable and immovable things were subject to almost the same legal norms, and therefore such a division did not matter much. It is interesting that real estate in ancient Rome also included the property created by someone else's labor on the owner's land. Such changes were considered constituent parts of the land and followed the legal status of the main thing (plot) ("superficies solo cedit" - "made above the surface follows the surface"). Real estate was considered a more complex category, and therefore the Romans were cautious about changing the legal status of real estate. For example, already according to the Laws of the XII tables, the terms for taking possession of movable and immovable property differed according to the prescription of possession: for movable things this period was one year, for immovable things - two years. In the era of the principate, the rules governing the rights to real estate separated and became specific to this particular category of things. At the same time, special rights were formed in relation to real estate: superficies, emphyteusis. Things individually defined (res species) and determined by generic characteristics (res genus). Generic things (res genus) - things that have a common genus and do not have individuality. Such things were determined by number, measure and weight, i.e. if it was impossible to understand whether this thing was generic or individually determined, the rule was applied: if things are counted as a certain amount (for example, they are sold by weight, volume), then the thing belongs to the category of generic . This thing can always be replaced in case of loss by the same or several of the same things: "genus perire non censetur" - "things determined by generic characteristics do not die." Individually defined things (res species) are opposed to generic ones. This is a thing that is unique in nature, it cannot be replaced. An individually-defined thing could be distinguished from a number of similar things (a specific vase). In the event of the destruction of individually defined things, the contract was terminated, since the debtor could no longer provide this thing. Generic and individually defined things are also sometimes called interchangeable and irreplaceable. This division of things is of great importance for the law of obligations. Consumables and non-consumables. Consumable items were materially destroyed the first time they were used for their intended purpose. This category includes food and money (by paying with them, the owner loses them). Non-consumable things did not wear out from use or were destroyed gradually, without losing the ability to fulfill their purpose (precious stone). Things are simple and complex. The division of things into simple and complex arose in the classical era. The division of things occurred depending on their complexity: - simple things (corpus, quod uno spiritu continetur) were a homogeneous whole and did not break up into its component parts (slave, log, stone, etc.); - complex things consisted of various combinations of things and had a material connection with each other, for example, a building, a ship, a closet. Parts of complex things before being combined into a certain thing could belong to different people. Despite the fact that part of the thing became a new complex thing, that immediate part belonged to the owner. However, the combined parts were subject to the law established for the whole thing. Things are main and secondary. The main things are things that have other things in dependence and legal subordination. Side (subordinate) things were recognized as independent things, but dependent on the main one and subordinate to the legal status of the latter. Types of side things: parts of a thing, accessories and fruits. Parts of a thing that were not separated from the whole did not have an independent existence, therefore they could not be an object of law. However, if a part is separated from the whole, then this part is an object of law (for example, roofing material). In connection with the foregoing, the Romans considered two consequences of joining a part of a thing to the whole. Firstly, if the accession led to a change in the essence of the attached thing or the inseparability of a new thing, then the ownership of the attached thing ceased for the owner (dissolved wine). Secondly, if the attached and main things did not change their essence, and the aggregate thing remained separate, then the thing attached to the main thing could be separated and restored in its former legal capacity. Belonging is a side thing connected with the main one economically. An accessory could exist independently and be an object of independent law (a key and a lock, a frame and a picture). At the same time, only with the joint use of accessories and the main thing was the final result achieved. As a rule, the legal relations established in relation to the main thing extended to ownership. Fruits are, firstly, things obtained from fruit-bearing things (wool, milk, fruits, etc.), called natural fruits. Secondly, the fruits included income brought by a fruitful thing: money from the sale of fruits, interest on capital, rent, etc. In view of the independent physical existence, belonging can be the subject of independent rights to it. However, in the absence of special reservations by interested persons, all legal relations established on the main thing are considered to extend (due to the economic connection between both things) and to belong to it (hence the aphorism: "belonging follows the fate of the main thing"). Things in circulation and out of circulation. Things in circulation (res in commercio) are things that could participate in legal circulation between individuals (exchange, purchase and sale) and were objects of private property. Things out of circulation (res extra commercium) are things that cannot participate in circulation due to their natural features. According to the Institutions of Justinian, there are things that by natural right belong to everyone. This category includes: a) air, b) flowing water and c) seas with everything that is found in them. Fruitful things and fruits. Another group of non-current things were public things (res publicae). The main and sole owner of public things was considered the Roman people. Fruitful things (res fructiferae) are capable of producing fruits organically or as a result of human labor, without changing their purpose. Fruits (fructus) were divided into: 1) civil fruits (fructus civiles), which arose as a result of various property transactions and were, in the modern sense, income from the use of a thing. Incomes could be regular (brought in a natural way) or obtained from legal relations about a fruitful thing (for example, interest on capital, rent from land); 2) natural fruits (fructus naturales), which arose under the influence of natural factors and human labor: - fruits still connected with the thing that produces them (fructus pendentes); - fruits already separated from the thing that produces them (fructus separati); - fruits already captured by someone for themselves (fructus percepti); - processed fruits (fructus consumpti); - fruits to be harvested (fructus perci piendi). The legal fate of the fruits differed in the presence of any right to a fruit-bearing thing. When claiming a fruit-bearing thing, the fruits were automatically taken away and returned to the owner along with it. However, if the fruits were already consumed, then there was no responsibility for this. Types of rights to things. The real right in terms of its content and scope of powers, which it provided to the authorized person, was divided into: a) possession; b) property; c) rights to other people's things. 5.2. The concept and types of ownership The concept of ownership. Possession (possessio) is such a social relation in which a given person considers this or that thing to be part of his household, and also considers it his own. This is the real domination of the person over the thing. In each fact of possession, as Roman jurists taught, two elements should be distinguished: corpus possessions, i.e. the body of possession, the actual possession of a thing is a bodily moment, and animus possessions - the soul of possession, i.e. the presence of desire, the owner’s intention to have keep the thing, keep it for yourself and treat it as if it were your own. Only such possession is considered legal and will be subject to legal protection, where there is a combination of these two elements: the fact that the thing is in the household and the desire to keep, to have this thing at home. The first element is objective, the second is subjective. The term "possessio" is comparatively recent. According to civil law, possession was denoted by the word "usus", i.e. "use". Usually owner and proprietor kind of merge. Therefore, they speak of "ownership". But possession can also arise out of connection with the right of ownership, and even be its violation. Some Roman jurists said, "Property has nothing to do with possession." Usually the first purchaser becomes the owner. The establishment of actual dominion over a thing was called possession (apprehensio), for example, someone captured a wild animal. In the transfer of possession (traditio - from one person to another), Roman law saw a derivative acquisition of possession. Ownership could also be acquired through third parties. "Corpus" was once understood as the physical possession of a thing: in the hands, in the house, in the yard. Later they began to argue as follows: "corpus" - is evident in all cases when, under normal conditions, the possibility of a long and unhindered manifestation of the dominance of a person over a thing is ensured. Ownership types. There are several types of possession based on the legality of possession of a thing: 1) legal possession (posessio iusta) - a thing is owned by its owner; 2) illegal possession (posessio vitiosa) - when the one who owns the thing does not have the right to do so: - bona fide possession (posessio bona fidae) - the owner of the thing does not know that the thing does not belong to him; - bad faith possession (posessio malae fidae) - the owner knows that the thing does not belong to him, but behaves as if the thing belongs to him. In this case, the acquisition of the right of ownership by prescription does not apply, and more stringent requirements are imposed regarding compensation to the real owner after the trial of the value of the fruits or deterioration of the condition of the thing; 3) derivative possession arose from the temporary possession of the thing by a third party. The possession of a thing by a third party is carried out until the dispute about whose thing it really is (in fact, he is the keeper of the thing) is resolved. Such relations were considered possession in order to simplify the possibility for the custodian to protect the thing in case of encroachment on it. In this case, the owner cannot be asked for protection, because he is not known. Possession of a thing by the pledge holder of possession is also carried out in order to protect the thing from encroachment. The following types of ownership were also distinguished: civil possession (posessio civilis) - possession in accordance with ius civile (civil law). This type of possession existed in ancient times even before the adoption of the Laws of the XII tables. The civil owner had to be a person of legal capacity (sui iuris), so most often the owner was the head of the family. He owned property in his own name, subordinates owned property also in his name. At that time, the terms for the conversion of possession into the right of ownership were already known according to the prescription of possession; mediocre possession - finding a thing in the possession of third parties (actually - holding a thing). It was not recognized as possession, despite the fact that there was an impact on the thing, but the holder did not have the right to own the thing on his own behalf. Most often, the role of holders was an attorney, a deposit taker and a loan taker. They were economically dependent on the owner and owned "for him". At the discretion of the owner of the thing, such holding could be terminated. Over time, holding relations developed, contracts began to appear for life-long "mediocre possession" of land and other property under a lease agreement; praetor's possession - a possession recognized by the praetor and protected by him until the expiration of the period of possessory limitation. The praetor granted his protection on the basis of an interdict. Over time, the protection of the praetor began to be granted to any person exercising dominion over a thing, if he had, in addition to the actual possession of the thing, the intention to own it. The protection was granted regardless of the manner in which that person acquired the right of possession, other than unlawfully in bad faith. Ownership protection. Ownership was protected by special legal means, i.e., interdicts (interdicta). Interdicts (prohibitions) were issued by Roman magistrates in the form of an order for the immediate cessation of actions that violated the rights of citizens. Initially, they were issued by praetors after the actual verification of the applicant's ownership of the disputed thing as a direct and categorical instruction to transfer the thing to the real owner, and later - as conditional orders: "if the applicant's arguments are confirmed, then transfer the thing to him, forbid encroachment on his thing." Types of interdicts: - interdicts that serve to protect the possession of the former owner (interdicta retinendae possessionis). Such an interdict was applied to the possession of both movable and immovable things, if the possession needed to be protected from the encroachments of third parties. An interdict issued for the protection of immovables was called "uti possidetis", it was issued at the request of the person concerned, regardless of the prescription of ownership. Thus, this interdict protected the last owner of the property. Interdict for the protection of movable things (interdictum utrubi) - before Justinian, it could only be applied if the owner of the thing owns it for most of the year in the calendar year when the interdict is issued. Under Justinian, movables were subject to the same rules as real estate: - interdicts designed to re-establish possession in the interests of an owner who has been unlawfully deprived of possession (interdicta recuperandae possessions). In fact, this is an interdict about the return of possession to those from whom it was taken by force. This interdict could be applied by any owner, even if the thing was acquired illegally. Protection of possession could also be carried out with the help of a claim with fiction (publician lawsuit). Acquisition of ownership. The acquisition of possession is always established for the first time and independently by the person who wishes to possess the object. All methods of acquiring possession in the classical era were presented to Roman lawyers as original, always carried out for the first time by the acquirer. This, of course, did not exclude the help and assistance of the subjects and slaves of the Roman householder, but possession arose only in the person of the latter. All that was required was that both elements of possession - volitional and material - should be exercised by him or for himself. In those cases where the acquisition of possession was facilitated by the fact that it came from the person who had already exercised possession, by transferring the object of possession, one could speak of derivative possession. But even in these cases, no continuity and identity between the old and the new possession was recognized. The volume and content of the latter were determined by their own actual dominance and the will of the new owner. The general term for the act of establishing actual dominion over a thing was appropriation (apprechensio). It clearly showed the moment of material capture, carried out in full force. A particularly wide field for its application as a predominantly original method of acquiring possession was opened by the acquisition of movable things belonging to no one (res nullius) and wild animals (ferae bestiae) inhabiting nature. In these cases, the act of possession was reduced to the final capture of them in the hands or to the pursuit and capture of them. So, a wild beast can be taken possession not by wounding, but by final capture, since in the period of time after the injury many things can happen that prevent the capture of the beast (D. 41. 1. 5. 1). Capture and seizure were reduced to the actual dominance of this thing. In the event of disputes about the seizure, all the totality of the circumstances and views of the turnover were taken into account. In cases of initial acquisition of possession of a thing that was not in anyone's possession, the fact of taking possession is naturally connected with the will to own oneself, that is, the basis of possession (causa possessionis) replaces another manifestation of the will. A much more complicated issue is when ownership is established on the basis of any agreements with the previous owner. The nature of these agreements determines whether the latter finally broke his possession of the thing in order to completely give way to a new possession (for example, when selling), or vice versa (renting, loaning or storing). In the above relations, the basis of ownership creates an equal position for the new owner: either a civil owner, or a simple holder. The position of the owner or holder determined from the basis of possession cannot be changed by the owner of the thing: "nemo sibi causam possessionis mutare potest" - "no one can change the basis of possession for himself." Changing the holder's intent cannot turn him into an owner. Thus, only by actual actions against the owner, the holder can change the basis of his relationship to the thing (in the original way) or establish otherwise by agreement with the owner (derivative way). The acquisition of possession is always considered initial, even if possession is transferred from one person to another. To acquire possession, in any case, it is required that the acquiring possession have both of its elements - the will to possess and real dominance over the object of possession. However, if possession passes from one person to another by their mutual consent (by means of a transfer), the requirements for dominance over the subject of possession and the will to possession of the new owner are thereby facilitated: 1) when acquiring movable things from the previous owner, with his consent, it was sufficient that the things were transferred by the transferor to the acquirer's house and were protected there. By analogy, the method of transferring goods was considered to be the transfer of keys to the premises where the sold goods were located. It was seen as establishing power over everything that is in a locked room. It was required that the handover of the keys take place in front of the warehouses, which emphasizes the presence of the goods (praesentia) and the moment of free access to the transferred object. Thanks to the constant actual cooperation of subjects and slaves, Roman owners could transfer through them far from their domicile; 2) in the same way, when acquiring ownership of real estate from previous owners, the requirement of complete material possession was weakened by the assumption of partial possession, with full knowledge of the plan and boundaries of the estate. When alienating real estate, it was enough for the seller to show the buyer the transferred site from the neighboring tower in order to complete the act of transferring the site. Those cases where the former owner, without transferring the object, only points to it to the acquirer, received the name "transfer with a long hand" (traditio longa manu); 3) the law of Justinian went further along the path of facilitating the transfer of possession and began to use the cash material relation to a thing in order to change its meaning by expressing the respective intentions of the parties. It introduced the short hand transmission (traditio brevi manu) (abbreviated). The former holder, with the consent of the former owner, became the owner himself, which happened, for example, when the lessee bought the thing from the lessor. Along with this, some classics formulated another way of acquiring possession, while maintaining the material moment, but by changing the volitional element. This happened in those cases when the owner sold a thing to someone and at the same time rented it from the buyer, without letting go of the thing. In medieval law, this method was called "establishment of ownership" (from constituere - to establish). Unauthorized takeover. The issue was more complicated in those cases when an outsider took possession of the site in the absence and without the knowledge of the owner. An unauthorized invader, according to Ulpian, who forcibly (VI) violated the possession that existed until then, finally acquired possession only if the former owner, having learned about it, did not dispute the seizure, or if he did, then without success. From the more ancient point of view of Labeon, only secret possession (possessio clandestina) was recognized for such an invader, which became immediately invalid if the former owner disputed it. Forcibly ousting the owner from the land did not stop his possession if his subjects managed to stay on it. Acquisition of property through others. The acquisition of possession by the householder through persons subject to him followed from the structure of the Roman family. Acquisition of possession through third free persons received recognition only in the era of classical jurisprudence. One of the reasons for this is the fact that during this period freedmen played a large role in the management of the economy of the rich. "Per quemlibet volentibus nobis possidere adquirimus" - "We acquire through any person, since we wish to own." The acquisition of possession through others assumed that: a) the latter subordinated the thing to his dominance; b) had the intention to acquire possession for another person; c) another person has expressed the will to acquire possession through an outside person. Loss of possession. For the involuntary loss of possession, it was enough to lose actual dominion over the thing. Voluntary termination of possession required the loss of both elements of possession: the actual dominance over the thing and the intention to own the thing: 1) the loss of actual dominance over the thing assumed a long-term full-time loss of dominance over the thing. So, the possession of those who ran away from the court did not immediately stop, because it could be found and returned back. Ownership of a land plot (equal to other real estate) ceased from the moment when the owner found out about it and could not or did not want to prevent violence by the occupier. The negligent attitude of the owner to his thing could also be considered as a refusal of ownership. This could take place when a person did not cultivate the land, did not try to organize its protection, and also made other significant omissions in maintaining possession of movable and immovable things; 2) death of the owner. With the death of the owner, the possession ceased and did not extend to the heirs. In view of this, the heirs were obliged to declare their intention and "seize" the property in a natural way; 3) the destruction of a thing and its transformation into a non-current item led to the termination of possession; 4) termination of possession through a representative. Possession of a thing through a representative could be terminated: - at the will of the owner; - due to the death of the owner; - in case of destruction of the item. If the owner was forced out of dominion over the thing, he still continued to own if his representative continued to possess for him. In the event that the representative was forced out of dominance over the thing, then the owner continued to own as long as he had the opportunity to influence the thing. If the land plot was seized by a third person in the absence of a representative, then the owner lost possession if the representative could not or did not express a desire to expel the invader. In the event that the unauthorized seizure was caused by the negligence or intent of the representative, the possession for the owner was lost only when he himself did not want or was unable to dislodge the invader. 5.3. Ownership The concept of property rights. Initially, Roman law did not know the term property (proprietas). In the earliest period, property was denoted by the words "my thing", "our thing" (pleno iure), that is, "in full right." It is difficult to say when the term "property" appeared. In the Institutions of Gaia (middle of the XNUMXnd century AD), it occurs six times. But just as many times the term dominium, that is, "dominion over things," is found as a synonym. When it comes to the powers of the owner, the well-known triad is usually meant: possession, use, disposal. The right of ownership is fundamentally not limited. Such a right, absolute in its protection, is the right of the owner to dispose of the thing belonging to him at his own discretion, up to and including destruction. Property was considered by Roman jurists as the most complete right of a person to a thing. The individual owner is omnipotent. However, to some extent, the right to property was limited by the so-called easements, already known to the Laws of the XII tables. The powers of the owner could be limited on two grounds: by law and by the will of the owner himself. Legislative restrictions were established in the interests of other owners. Restrictions can be negative, i.e., it is the obligation of the person (owner) to refrain from any actions (in non faciendo), and positive (in patiendo), i.e., the obligation of the owner to tolerate the actions of other persons. Types of property rights. Roman law did not know a single concept of property rights. There were several types of it: - kvirite property; - Bonitary (praetor) property; - provincial property; - peregrine property. Quiritic property (dominium ex Jure Quiritium) is property governed by civil law. This right of ownership was the only one in ancient times. With the development of the institution of private property and the emergence of its new types, Kvirite property continued to be revered as the best and was exempt from all tax payments. In order to obtain Quirite property, it was necessary to be a Roman citizen with legal capacity, endowed with the right to acquire property. The object of property could be both manipulable and non-mancipated things, but if we talk about real estate, then it must have been located in Italy. Provincial property arose and became widespread with the development of Rome and the expansion of its territories. Lands outside of Italy could not be subject to Quirite law, and a legislative regime was necessary. Therefore, it began to be considered that the lands belonged to the state (later it was believed that they belonged to the emperor), and those who used them did not have the right to property, but the right to derive economic benefits from the lands: to use, receive fruits, have, own ("uti frui habere possidere"). The decision that these lands could be inherited finally formalized the right to provincial property. Provincial lands were subject to a special tax (a fee for the senatorial provinces and a tax for imperial lands), and this was the main difference between this type of property and property in Italian lands. Differences in the legal regime disappeared with the introduction of the obligation of landowners in Italian territory to also pay taxes on land. Bonitary (praetor) property developed from the division of things into mancipable and non-mancipated. The first group of things (land, slaves, bulls, horses, donkeys, mules, buildings on Italian soil) were subject to very complex and cumbersome alienation and acquisition procedures, which was a brake on the economic turnover of Rome. Often, solemn forms of mancipation of things were postponed by the contracting parties for an indefinite time, and the thing was simply transferred (transfer - traditio). However, the buyer, who in this case became the holder of the thing (before the expiration of one year for immovable property and two years for movable property), took a great risk, because the rightful owner, if he was not honest enough, could claim the thing back. The praetors introduced two suits defending the acquirers, thus confirming the possibility of alienating mancipible things as non-mancipible: a) a claim that made it possible to oppose the claim of the Quirite owner with an objection stating that the thing was acquired by transfer (exceptio rei vinditae ac traditae); b) an action that allowed the return of a thing if it was taken away by the quirite owner or any other third person after its transfer by transfer (actio publiciana). Protection of the rights of the new nekvirite owner (having no opportunity to bring a property claim) was carried out by: - fictions in the claim formula of the new owner that the thing should be returned to him from someone else's illegal possession, as if the statute of limitations had passed (in civil law: for land - two years, for other things - one year, and the thing should not be stolen ; in the right to provincial lands - 10 years); - Clauses in the claim of the non-Quirite owner that the thing must be returned to him by the old Quirite owner who seized it, since "the thing has been sold and transferred." Thus, two rights could exist in parallel on the same thing - nominal quirite and actual praetor. Quirite law in such a situation acted as a bare (formal) Quirite property right, that is, a right without content (nudum ius Quiritem). Peregrine property is the property of non-citizens of Rome (Peregrines and Latins). They obeyed their own right. Some of them had the right to participate in purchase and sale transactions. However, they could not defend the resulting property rights like Roman citizens, and their claims were treated as "fictitious" with the "imaginary" status of a peregrinus as a Roman citizen. Subsequently, the property of Peregrine merged with that of the praetor. Acquisition of property rights. The Romans divided the ways of acquiring property on the historical basis of belonging to civil law or to the law of peoples. In a systematic presentation, it is more convenient to distinguish them on the basis of a derivative transfer of ownership from one person to another and the initial occurrence in the person of a given acquirer - for the first time or, in any case, regardless of the right of the predecessor. Usually, the law specified in which cases such an initial acquisition of ownership took place. The transfer of property was allowed only between persons capable of alienating and acquiring property, and was carried out through contracts and transactions in circulation between the living (inter vivos), as well as on the basis of transactions on the occasion of death (mortis causa), that is, by inheritance by will and failures, as well as by inheritance under the law. In classical law, three methods of mancipatio, in iure cessio and traditio were used for the contractual acquisition of property. Mancipation arose when Rome did not yet know a minted coin, and copper in ingots was used as money, when it was actually chopped and weighed. The presence of five witnesses is a remnant of the participation of the entire community in alienation. The community once gave permission for the alienation and controlled the transaction. Witnesses are not just eyewitnesses, but guarantors of the validity of the transaction, the strength of the acquisition being made. The acquirer (as a general rule, a wealthy person) sought to acquire land with a guarantee that neither the state nor the alienator would take it away. There is no doubt that in the beginning mancipation was a real sale and purchase. At the time of the purchase of the thing, the buyer uttered the formula and immediately handed over the payment to the seller. Over time, only the form of the transaction was preserved, but its content became different. The actual transaction and the transfer of money took place outside the rite of mancipation itself. In the presence of a minted coin, a piece of copper was not at all equivalent. And although there was no real payment, the form remained. Moreover, without observance of the rite of mancipation, the ownership of the thing did not pass to the acquirer. Over time, the rite of mancipation has been widely used. A solemn form with the participation of five witnesses, a weigher and with the pronunciation of the formula "I buy for a piece of copper" begins to serve almost the entire circulation of that time, albeit a simple one. The rite "by means of bronze and scales" (per aes et libram) began to be used even in marriage and in the disposal of property in case of death. It is correct to consider that the constraint was a consequence of the former belonging of these things to the collective, a consequence of the limited rights of individuals to these things. The alienation of such things originally meant the usurpation of public property by the richest and most powerful people. Despite its complexity and clumsiness, mancipation fully satisfied the interests of the patrician-plebeian elite of Roman society. She did not prevent the concentration of land in the hands of this elite. The latter strove to keep the wealth of land in its hands, was interested in the fact that these wealth would not be alienated so easily, would float away from its hands. The imaginary lawsuit (in iure cessio). This way of transferring ownership was a sham lawsuit: a lawsuit about ownership was adapted for the purpose of transferring ownership (gai. 2). The acquirer and the alienator, by all means the persons allowed to participate in the Roman process, appeared before the praetor. The acquirer demanded the thing he was acquiring, claiming that it belonged to him. The alienator either recognized the right of the plaintiff, or simply remained silent. The praetor, in turn, stated the right of the plaintiff and issued an act confirming the will of the parties. Transfer (tradition). As a way of transferring property rights, tradition was adopted by the "law of peoples" (ius gentium) as an integral part of Roman law. The tradition was to transfer the actual ownership of the thing from the alienator to the acquirer. This transfer was the fulfillment of a preliminary agreement by both parties that the property was transferred by one person to another. In classical law, the application of tradition to the res mancipi did not lead to the acquisition of quirite, but only praetorian bonitar property. It is possible that in ancient times, tradition required an additional expiration of a year's limitation period for the transfer of ownership. In post-classical times, tradition supplanted the old formal ways and became the only way to transfer property. Initially, the tradition was a real, solemn deal. The alienator (tradens), transferring - really and publicly made the transfer of the thing to the acquirer (accipiens). The introduction of immovable property into circulation, as well as those methods of transferring ownership, which were limited to viewing the site being transferred, the exchange of statements of the parties and the transfer of plans, gradually smoothed out the real nature of the transfer as an act. In classical law, somewhat simplified forms of tradition were also known: the transfer of a long hand, the establishment of the right to a thing already in the possession of the acquirer, the establishment of ownership, which were supplemented by the delivery of a document in the law of Justinian. They were equated with tradition in the proper sense of the word. There have been cases in tradition where the acquisition of ownership has been delayed until later than the moment of physical transfer. Thus, in a sale, non-payment of the price or failure to provide appropriate guarantees, failure to meet the deadline or conditions could delay the transfer of ownership by special agreement, although the acquirer already actually possessed the thing. It is clear that during this indefinite time the latter could not transfer more rights to others than he himself had. If the acquirer of a movable thing knew about the lack of a basis for the transfer and nevertheless took advantage of it, then he committed theft, and the thing defamed in this way did not become his property (D. 47. 2. 43). In some cases, the tradition was void due to the fact that its purpose was contrary to the law or the established order, for example, when gifts between spouses were prohibited or when gifts were not formalized by a protocol prescribed by imperial laws. Acquisition of ownership of the fruits. The fruits, from the moment of separation from the fruit-bearing thing (separatio), that is, from the moment from which the fruits become a separate thing, belonged only to the owner of the latter. However, exceptions were allowed in favor of holders of certain rights to a thing, for example, in favor of lifelong fruit users. They were required, however, that the fruits be harvested (perceptio). Special rules have been developed regarding the acquisition of fruits by a bona fide owner. Initially, he acquired by prescription all the fruits after their separation, except for those collected during the process that arose over his possession after the moment the lawsuit was certified. The expense he incurred in cultivating the fruits, matching them to possible incomes, the growing recognition of conscientiousness as the main factor in the normal acquisition of property - all this led the classical lawyers at the beginning of the empire to recognize the right of ownership of the fruits to conscientious owners. Specification. This term meant the production of a new thing (nova species) from one or more others. A legal difficulty arose when the creator of a new thing used material that belonged to another person. Sabinian jurists, followers of the Stoics, according to whom the material (materia) dominates the form, held the view that the owner of the material remained the owner of the thing in its new form. The Proculians, following Aristotle and the Peripatetics, regarded form as dominant and essential, while matter was an incidental, accessory and non-existent thing until it received form. Therefore, the new thing belongs by right of ownership to its creator, while the owner of the material brings an action against the latter for the payment of a fine (actio furti) and for the return of possession (condictio furtiva), and if the return is impossible, for the payment of compensation (Gai. 2. 79; D. 13. 1. 8). In the law of Justinian, the middle opinion prevailed, according to which the new thing belongs to the owner of the material or the specifier, depending on whether it can be converted into the previous form or not. According to Justinian's law, the specifier always became the owner of a new thing if he partially added his own to someone else's material. An occupation. Occupation (occupatio) meant the appropriation and possession of things with the intention of keeping them. It justified the right of ownership of the invader and extended to all ownerless things according to the principle expressed in the Laws of the XII tables: the ownerless thing follows the first one who seized (res nullius cedit primo occupanti). Things that belonged to everyone (res omnium communes) were the main objects for such capture - through hunting, fishing and poultry farming. This included islands that appeared in the sea, as well as stones, shells, etc., found on the seashore or its bottom, wild animals in their natural state of freedom, regardless of how their mastery followed. Roman law did not recognize the exclusive right of the owner of a land plot to hunt on this plot, which would interfere with such seizures. Finally, this included things abandoned by the former owner (res derelictae) (D. 41). Enemy property was considered ownerless and could be the subject of occupation, but not all. Gaius' assertion that the Roman especially considered his own what he had taken from his enemies is only a recollection of ancient times; in historical times, spoils of war belonged to the state (D. 1. 1. 5). The soldiers received ownership of only a part of the booty provided to them by the generals. The occupation was equated with the capture of the seashore or bottom by building and establishing fences. Treasure. Treasure (thesaurus) was understood as any value that was hidden somewhere so long ago that after the discovery it is no longer possible to find its owner. If such a treasure was found on someone's land, then from the II century. n. e. half of the treasure was received by the finder, and the other by the owner of the land. Common property arose between them (D. 1. 2. 1. 39). At the same time, it was established that the find in a sacred or burial place belonged entirely to the finder. Later, half went in favor of the fisc. If the finder searched for the treasure without the permission of the owner of the land, then the latter received everything. For searching through witchcraft, the finder was deprived of all rights, and what was found came in favor of the fisk. Acquisitive prescription. The next type of acquisition of property rights was acquisitive prescription. A person, having possessed someone else's thing during the period established by law, has acquired ownership of it. In this case, we are talking about the person of his right (autocratic - sui iuris). Acquisition by prescription was possible in the event that during the period of alienation of the thing the procedure of mancipation or imaginary litigation was not used. Here the alienator remains the owner of the thing, and according to the Kvirite law. But a bona fide purchaser acquired it by prescription, and a non-owner could also be an alienator. Guy said: “However, we can acquire by prescription even those things that were transferred to us by a non-owner, whether they are manipulated or not, provided that we receive them in good conscience, considering that the one who transfers is the owner.” The limitation period had to run continuously, as a result of which the heir could take advantage of the testator's possession. In the same way, in lifetime transactions, offsetting and adding the time of possession of the predecessor in favor of a bona fide successor was allowed. This was called an increment in possession (accessio possessionis). Acquisitive prescription applied only to Italian lands and between Roman citizens. However, in the provinces, in relation to provincial lands, the Roman rulers, and then the imperial legislation, in the fight against the decline of agriculture and the abandonment of lands, introduced the institution of statute of limitations. It was based on the Hellenistic principle that one cannot retain a right that has long been neglected. The new institution was given the procedural name "acquisitive prescription". A prescription was a postscript at the beginning of a claim. In this case, an addition was made in the claim formula for the recovery of a thing, in which the judge was asked by the praetor to release the defendant who owned real estate for 10 years if the former owner lived in the same province, and 20 years if they lived in different provinces, without distinction between movable and immovable things. All that was required was a basis justifying the entry into possession. Jurisprudence has extended to this limitation the requirement of good conscience and legal title of possession. Being at first a means of protection against the claims of a negligent owner who did not own his thing for 10 or 20 years, such possession then acquired the significance of a special basis for a claim (and not just an objection) from the long-term owner, who could claim the thing for himself, even if it later fell into possession of the former negligent owner. Thus, the long-standing owner acquired the right of ownership (provincial). The Praetorian Edict extended this method of acquiring property rights to all things in general that were in the long-standing possession of the peregrines. Subsequently, this institution began to apply to the Italian lands in parallel with acquisitive prescription (usucapio). Loss of ownership. The right of ownership could be lost by a person due to various reasons: natural events, by the will of the owner, by decision of the relevant state body or due to the actions of third parties. In particular, it stopped: - if the owner renounced his right to the thing (transferred the thing to another person; threw it away, considering it to be unusable); - if the thing perished physically or legally (broke, turned into non-current); - if the owner, against his will, was deprived of the right of ownership (in the event of confiscation or nationalization of the thing, in the event of the acquisition of the right of ownership to the thing by another person by prescription, etc.). Ownership of wild animals and birds was lost when the animals and birds hid from the pursuer. If they were tamed, then ownership of them ceased when they lost the habit of returning to the owner. Ownership of domestic animals and birds was not lost if they left the owner. 5.4. Property rights protection Property was protected by various legal means. Depending on the presence or absence of the thing, the owner of the thing was presented to him, respectively, a vindication or negatory claim. Depending on the type of property, a vindication claim was presented to the kvirite owner, a publicistian claim to the bonitary (praetor) owner, and a modified claim of the bona fide owner to the provincial owner. In some cases, to protect the right to property, personal claims of a binding nature and interdicts were brought. A vindication claim (rei vindicatio) served the Kvirite owner to reclaim his lost property from someone else's possession, including all its fruits and increments. A vindication claim could not be brought to protect provincial or bonitary (praetor) property. This claim existed both in legal action, formulary, and in extraordinary proceedings and was filed with the aim of returning the thing to its rightful owner or obtaining monetary compensation for the thing. The plaintiff in a vindication suit was the owner of the thing, and the defendant could be any person who had the thing in possession at the time the claim was filed. There were two categories of defendants: the real owner (actually owning the thing), and also the "imaginary" owner (deliberately selling the thing in order not to own it at the time of the lawsuit). Responsibility of owners: a) a bona fide owner: - is responsible for the state of the thing from the moment the claim is filed; - does not compensate for the fruits and increments; - the owner compensates the owner for all necessary or useful costs associated with the thing (expenses for storage, repair, etc.); b) unscrupulous owner: - bears full responsibility for the loss of the thing before filing a claim, even with slight negligence; - bears full responsibility for the loss of the thing after filing a claim, even in the absence of fault or negligence; - is obliged to reimburse the value of the fruits for the period elapsed before the filing of the claim, based on the assumption of his optimal diligence; - is obliged to reimburse the value of the fruits for the period that has passed since the filing of the claim, based on the assumption of optimal care with the capabilities of the real owner; - is obliged to independently pay the costs associated with the preservation of property. At the request of the plaintiff, he could receive from the defendant monetary compensation for the thing (as if the sale of the thing). The value of the thing was estimated by the owner independently under oath. A negatory claim (actio negatoria) was granted to the Kvirite owner if, while continuing to own the thing, he encountered any obstacles and difficulties in doing so. The purpose of the suit was to recognize that the right of ownership is free from encumbrance of third parties. The owner filed a lawsuit in which he denied the rights of third parties to invade his property rights (for example, the right to usufruct or easement was denied). As a result, the defendant undertook not to interfere with the owner's right to own and use the thing at his own discretion and not to create obstacles to the exercise of such a right. The lawsuit for prohibition (actio prohibitoria) existed in parallel with the negatory lawsuit and was aimed at eliminating violations of the rights of the owner. The plaintiff demanded the freedom of his property and the prohibition of the defendant from using and deriving fruits from this property (as opposed to a negatory lawsuit, in which it was required first to prove that the defendant did not have the right to interfere with the plaintiff's property, and then demand to forbid him to do this in the future) . The publician lawsuit (actio publiciana), also called the fictitious lawsuit (actio fictia), was supposedly introduced by praetor Publicius in 67 BC. e. This claim was used to protect the bonitary (praetor) owner and the person who acquired the property from the non-owner without knowing it. A bona fide owner of a thing, who had all the rights to the thing, but owned the thing for less than 10 years (that is, less than the period of acquisitive prescription), could protect his rights by means of a claim with fiction. The fiction was that the praetor ordered the judge to assume that the statute of limitations had already expired and the owner of the thing became its owner. A claim with fiction was applied only to things fit for old-time possession (could not be applied to a stolen thing or a thing taken by force). Property could also be protected by personal claims of the owner against the violator of his rights. 5.5. Rights to other people's things The concept and types of rights to other people's things. In Roman law, there could be rights both to one's own and to other people's things. It was understood that the property belongs to a certain person, but the other person has a number of rights associated with his thing. Such limited rights arose either at the will of the owners themselves (on the basis of an agreement), or on the basis of legal acts issued with the aim of improving the economic use of certain categories of things. The rights to other people's things were different due to the fact that the types of use of other people's things were also different. There were several types of rights to other people's things: 1) easements (servitutes) - property rights to other people's things: - personal (ususfructus, quasi ususfructus, usus, habitatio, operae servorum vel animalium); - real (servitutes praediorum urbanorum, servitutes praediorum rustico-rum); 2) pledges - the thing was with the creditor to secure the fulfillment of the claim; 3) emphyteusis (emphiteusis) - an alienable inherited right of long-term use of foreign land; 4) superficies (superfisies) is an analogue of emphyteusis: a long-term alienable and inheritable right to lease building plots for the purpose of erecting a building and using this building. The concept of easement. The emergence of easements was associated with the emergence of private ownership of land. There were, for example, land plots that did not have water sources or access to a common road. In this case, it became necessary to secure for the owners of such "flawed" plots the right to use water from sources in neighboring plots, to pass through neighboring plots to access a common road. Thus arose the need to use foreign land, or servitudes. Servitude (from servitus - slavery of a thing, serving it) is the right to use someone else's property in one way or another. The owner of the plot, where there is water, was limited in rights, and the land plot itself served for the benefit of the plot that did not have a water source. The right of the owner to use water from a neighboring plot is an easement right. It is necessary to distinguish easement law from obligation law. The law of obligations was of a personal nature, its subject matter was the actions of certain persons. For example, an owner who does not have a water source on a land plot entered into an agreement on the right to use water with the owner of another land plot. However, as soon as the owner of a plot with a water source sold his land, the second owner no longer had the opportunity to use water, as before. He had to conclude an agreement on the right to use water again, but with the new owner of the land. In servitude law, the object was not the actions of certain persons, but the thing itself. An easement is an encumbrance of a thing. Therefore, the subject of servitude right retained his rights to use the thing in one way or another, regardless of the change in the owner of this thing. In our example, the change of the owner of the land plot did not terminate the servitude right. Personal easements. Personal easements were considered lifelong rights to use someone else's thing. The main types of personal easements were: ususfructus, usus, habitatio, operae servorum vel animalium. Usufruct (ususfructus) was defined as the right to use someone else's thing and its fruits while preserving the integrity of the essence of the thing. The subject of usufruct could be both a movable and an immovable thing (for example, a garden, a pond). The right to use a thing was established either for life or for a certain period. The usufructuary had the right to use the thing and extract the fruits from it. Ownership of the fruits he had from the moment of collection. It was allowed for the usufructuary to transfer the object of usufruct to third parties for use under a sublease agreement. In this case, he remained responsible to the owner for the integrity of the thing and the correct use of it. The usufructuary was obliged to reimburse all the costs of the thing, including paying taxes and other payments; take good care of things; Compensate for damage to the owner if, through his fault or the fault of the subtenant, the thing fell into disrepair or the owner suffered damage due to the excess of his rights. The usufruct could not be alienated and could not be inherited. With the death of the usufructuary, it ceased, and the thing passed to the owner. The owner of a thing could sell the object of usufruct, pledge the thing, encumber it with another easement, but the rights of the usufructuary should not be infringed. Unlike other servitudes, the usufruct was divisible and could be owned in shares by several persons. Quasi usus fructus. At the beginning of the empire, a senatus adviser was issued, according to which the whole property could be the object of use (D. 7. 5. 1). It extended also to consumed things and was called quasi ususfructus, as opposed to ususfructus in the proper sense of the word. In this case, the user became the owner of the objects of usufruct and had to promise against security (cautio) that, at the end of the use, he would pay the value of the received one, which was firmly established at the beginning. By agreement, it was possible to pronounce the production of return issuance not in monetary terms, but in an equal amount (quantum) of homogeneous things (D. 7. 5; I. 2. 4. 2). In the Institutions only money is mentioned as an object quasi usus fructus, but Gaius says that either money or an equal amount of things should be given, although he considers payment in money (commodius) to be a more convenient way. Usus (usus) was the right to use someone else's thing, but without the right to the fruits of the thing. As a rule, the uzus was granted to a person for life. Close relatives of the usuarius could use the subject of the usus (for example, live with him in the house). However, he could not transfer his right to third parties, nor could he share it with anyone. The uzus was indivisible. As for the fruits, the usuary could use them to the extent of his own needs (personal and the needs of family members sharing the subject of usus with him). The user of the usus bore the costs of maintaining the thing: he paid duties, taxes, but in a smaller amount than the usufructuary. In all other respects, the obligations of the user coincided with those of the usufructuary. Uzus could belong to several persons, but was not divisible. The obligations of the user were also ensured by a document confirming the fact of stipulation. Like the usufructuary, the user had to exercise his right, as is due boni viri arbitratu, and return the thing to the owner in the proper form. The right to live in someone else's house or part of it (habitatio) was granted by will. For example, the testator transferred the living quarters to the heirs and granted the right to live in it to a distant relative. Classical jurists argued whether such a right was usufruct, usus, or something independent (C. 3. 33. 13). In the law of Justinian, it was considered an independent right, and the authorized person was freely allowed to rent it out, which caused controversy among the classics. Free assignment to another of this right was unacceptable (D. 7. 8. 10. pr.; C. 3. 33. 13). The lifelong right to use other people's slaves or animals (operae servorum vel animalium) is a personal easement that was the subject of dispute among Roman jurists. This right was subject to the same rules as the right to live in someone else's house. It was allowed to use the labor of a slave (animal) for oneself or rent it out for a fee. The possibility of gratuitous transfer of this right is controversial. Real easements. Real servitudes (servitus rerum or servitus praediorum) belonged to the land and therefore were called land servitudes. Unlike personal easements, they were established not in favor of a certain person, but in favor of a certain thing. These rights in rem were granted to a person who is the owner of another plot to use someone else's land. Easements in rem were permanent and existed regardless of the change of users: a) rural land servitudes (servitutes praediorum rusticorum) were established for the use of "official" rural property, on which the servitude was given, in favor of and for the improvement of the "dominant" property. Rural easements are among the earliest in Roman law. All of them fell into the following categories: road easements consisted in the right to pass (pass through) through the site. These included: - the right to walk through the service area (iter); - the right to ride a horse through the service area (actus); - the right to pass on a cart with luggage (via); water easements consisted in the right to use water from the site or to conduct water through this site for the purpose of irrigation (aquaeductus): - the right to draw water on someone else's land (aquae haustus); - the right to drive livestock to drink on someone else's plot or through it (pecoris ad aquam appulsus); other rights began to receive recognition gradually, against the background of the two previous categories: - the right to extract sand from someone else's land (servitus harenaefodindae); - the right to cook lime on someone else's land (servitus calcus coquendae); - the right to mine clay on someone else's site (servitus cretae eximendae); - the right to store fruits on someone else's plot (servitus ut fructus in vicini villa cogantur coactique habeatur); - the right to graze cattle on someone else's land (servitus pescendi); - the right to export stone and ore from someone else's land (coquendae servitus ut in tuum lapides provolvantur ibiqueposite habeantur ineque exportentur); - the right to collect vines from someone else's plot, etc. (servitus pedamenta ad vineam ex vicini praedio sumere); b) urban land servitudes (servitutes praediorum urbanorum) were established for the use of a "service" urban plot for the benefit and improvement of "dominant" property. City easements were divided into the following categories: the right to walls (supports) (iura parietum) consisted in the fact that the owner of the dominant plot was given the right to erect a building on his plot, leaning on the wall of a neighbor's house: - the right to rest a beam on the wall of someone else's building (servitutes tigni immitendi); - the right to lean one's own wall on the wall of someone else's building (servitutis oneris ferendi); the right to space was formed from the right to walls (often not allocated to a separate category): - the right to make a ledge hanging over someone else's site (servitutis proiciendi); - the right to build a roof, invading the airspace of a neighbor (servitus protegendi); the right to drains (iura stillicidorium) consisted in the right of the owner of the dominant plot to ensure the flow of water from his own plot through the service plot: - the right to conduct sewage (servitus cloacae immit tendae); - the right to drain rainwater (servitus stillicidii); - the right to drain excess water (servitus fluminis); the right to windows (view) (iura luminutn) limited the owner of the service plot in the construction of buildings that spoil the view or worsen the illumination of the house on the dominant plot: - the right to have a neighboring building of a certain height (servitus altius non tollendi); - the right to ensure that no work is carried out on the site opposite, as a result of which the light will be obscured (servitus ne luminibus qfficiatur); - the right to ensure that no work is carried out on the site opposite, as a result of which the view from the building will be closed (servitus ne prospectui qfficiatur). The rise of services. Servitudes could arise through legal transactions, by prescription, by virtue of the prescription of the law, by means of a court decision. Acquisition through legal transactions. According to the norms of civil law, all servitudes were established by cession of rights in the course of the process, and rural servitudes, in addition, by mancipation. The owner of a land plot, when alienating land, could acquire for himself an easement on the alienated land by means of an additional agreement to the contract of sale. In the period of the empire, servitudes were already established by tradition, that is, by transferring ownership of the servitude. Servitudes on provincial lands were established by a simple agreement with the use of stipulation. Justinian's law abolished the ancient formal methods of establishing servitude law and left only praetor methods: through tradition and a simple agreement of the parties. Only the owner, emphyteut or superficiary could acquire land easements, and any individual could acquire personal easements. It was allowed to establish land servitudes jointly with the owners. Acquisition by prescription. Until the middle of the II century. BC e. rural easements were acquired by prescription (within two years). In 149 BC. e. the Scribonian law abolished this method of acquisition. However, during the period of the empire, the praetor edict again began to recognize the old (10- and 20-year) possession of an easement. Acquisition by virtue of the prescription of the law could take place, for example, in the case of a divorce of spouses. It is known that family law imposed a fine on a spouse who created grounds for divorce by his behavior. This fine, in the absence of children, went to the innocent spouse. If the spouses had children, the latter received ownership of the property withheld in the form of a fine, and the innocent spouse received the usufruct of the property. Establishment by virtue of a court decision could take place, for example, in the division of common property. By granting one of the persons a larger plot of land, the court burdened him with an easement in favor of the owner of the smaller plot. In another example, the judge could oblige the owner of the land plot to grant another person, for a fee, the right of passage to the burial place of relatives. Termination of services. The servitude right could be terminated due to various circumstances: natural events, by the will of the entitled person, by coincidence and other reasons. With the termination of the servitude, the property right encumbered earlier by the servitude was restored in full. The servitudes were terminated in case of loss or destruction of the object of the servitude right or its transformation into such a state that made it impossible to use the established right. If a significant change in the object of the servitude was made by the owner of the thing, he was obliged to compensate the subject of the servitude right for the losses caused by this change. Personal easements terminated with the death of the authorized person, as well as in the event of the loss of legal capacity of any degree. In the legislation of Justinian, the termination of personal easements could take place only in the maximum and average degree of loss of legal capacity. Servitudes were also terminated in the following cases: - refusal of the user of the servitude right from the corresponding right; - expiration of the extinction prescription (due to non-use of the granted servitudes for a 10- and 20-year period in accordance with the legislation of Justinian); - when the owner of an employee plot acquires the right of ownership to the dominant plot (for personal servitudes, it is necessary to merge the ownership of the thing and the life-long use of the thing by an authorized person). Servitude protection. Initially, the holders of servitude rights defended themselves with the help of the so-called vindication servitude claim (vindicatio servitutis). It was used both to return the lost easement, and to remove obstacles that prevented the owner of the easement from exercising his right. The plaintiff had to prove the existence of the easement right and its violation by the defendant. The servitudes established by praetor law were defended by an action by analogy (actio confessoria utile). It was like a publicity claim submitted to the bonitar owner of a thing. In Justinian's legislation, when the distinction between servitudes established by civil and praetor law disappeared, an action appeared under the name confessor (actio confessoria). This lawsuit not only restored the violated rights of the easement user, but also provided compensation for his losses, and also prevented the violation of the rights of the plaintiff in the future. Some servitudes were protected by means of interdicts as possessory remedies when it was not required to prove the person's right to the servitude. The possession of usufruct, the right to emphyteusis and superficies were protected by interdicts similar to those used to protect the possession of things. By analogy with possessory interdicts, land and other personal servitudes (water, road, etc.) were protected. Emphyteusis and superficies. The word superficies has been used in two senses. It denoted the surface, that is, that which is firmly connected with the earth - plants, buildings. Superficies belong to the owner of the land. Another meaning of this word is the right to have a building on someone else's, for example, a city, land plot. This refers to the investigative and alienable right to a thing; we are talking about the long-term use of someone else's land for a building, the use of a building erected on someone else's land. The building was built at the expense of the tenant of the superficiary's site. Ownership of a building was recognized by the owner of the land, because everything on the land and associated with it belongs to the owner of the land. But the superficiary, during the term of the contract, uses the building and pays the ground rent of the solarium. The superficiary had the right to alienate his right, but without prejudice to the rights of the owner of the land. Emphyteusis is understood as hereditary lease, that is, the eternal hereditary and alienable right to use someone else's land for agricultural purposes. An authorized person - emphyteuta or emphyteutiarius - uses the site as an owner, but on condition that the site is not deteriorated, and an annual fee for use, called a canon or pension, is paid. The church could also act as the owner of the site. The main way to establish emphyteusis is an agreement between the owner and the emphyteut. The existing emphyteus sis can pass from one person to another. Pledge. In Roman law, there was no single concept for a pledge, so it was called differently. What a pledge has in common at different stages is that it provides the creditor with material security for his claim. Thus, the pledge agreement is aimed at ensuring the protection of the creditor, giving him more scope for exercising the right to claim. The purpose of the bond is to ensure that the property of the defaulting party at the time of the claim will be sufficient to recover damages, regardless of other third party claims against the defaulting party. Thus, a pledge is made to secure an obligation: "A pledge is made by agreement when someone agrees that his thing should be pledged to secure some obligation" (D. 20. 1. 4). The pledge right was additional ("accessory") in relation to the basic right secured by pledge. The deposit was made: - the owner of the property; - a representative of the owner, if he had the right to alienate the pledged thing; - the creditor could repledge the property he received as collateral (pignus pignoris). The pledge was set: - by agreement of the parties (fiducia cum creditore, pignus); - by order of the magistrate ("judicial bail"); - by law ("legal bond") in certain cases, such as those relating to guardianship. 6 Theme Roman compulsory law. Treaties 6.1. The concept and types of obligations Definition of obligation. The law of obligations is the main division of Roman (and any other) civil law. It regulates property relations in the sphere of production and civil circulation. The subject of the law of obligations is a certain behavior of the obligated person, his positive or negative actions. In the sources of Roman law, obligation (obligatio) is defined as follows. An obligation is a legal fetter that compels us to do something according to the laws of our state. The essence of an obligation is not to make some bodily object or some servitude ours, but to bind the other before us in such a way that he gives us something, does something, or presents something to us. Before the obligation arises, a person (debtor) is completely free. Having entered into an obligation, he limits himself in a certain way, burdens himself with promises, restricts freedom, imposing on himself some legal obligations, legal fetters, legal fetters. That is why, in the definitions of obligations, Roman lawyers speak of fetters, fetters, etc. According to the Laws of the XII tables, in ancient times real fetters and fetters were applied to a faulty debtor. Table III contains a rule according to which the creditor, if the debtor fails to perform his obligation, has the right to take him to his house and impose on him stocks or fetters weighing not less, and if he wishes, more than 15 pounds. Thus, an obligation is a legal relationship by virtue of which one party (the creditor) has the right to demand that the other party (the debtor) give (dare), do (facere) or provide (praestare) something. The debtor is obliged to comply with the creditor's demand. So, an obligation is a complex legal structure, a legal relationship, the parties to which are the creditor and the debtor, and the content is the rights and obligations of the parties. The party entitled to demand is called the creditor, and the party obliged to fulfill the creditor's demand is called the debtor. The content of the creditor's claim is his right to certain behavior of the debtor, which can be expressed in any positive or negative action. Consequently, the subject of an obligation is always an action that has legal significance and generates legal consequences. If the action is not of a legal nature, then it does not give rise to a legally significant obligation. The Romans grouped a huge variety of economic actions into three groups: dare - to give, praestare - to provide and facere - to do, which determined the content of obligations. Types of obligation. In Roman law, all obligations were divided into the following categories. - on the basis of occurrence: obligations from contracts and torts (quasi-contracts and quasi-delicts); - under the law governing the obligation: civil and praetor obligations; - on the subject of the obligation: divisible and indivisible obligations, alternative and optional, one-time and permanent. Civil obligations were opposed to natural ones. These obligations arose from transactions recognized by civil law, and consisted in the fact that only they were seen as "oportere" (in the translation "should", i.e. ius civile, the very fact that the obligation should be fulfilled was recognized). If the transactions did not recognize "oportere", then the person could be subpoenaed by means of a praetor action. In the interpretation of the praetor's obligations in court, the principle of justice and good will was of great importance. Obligations are considered divisible when their subject is divisible without prejudice to its value. Thus, for example, the obligation to pay 10 sesterces is divisible; the obligation to grant an easement, such as the right of way, or the right of passage, or the right to drive cattle, is indivisible (D. 45. 1. 2). Equally indivisible is the obligation to build a house, to dig a ditch (D. 45). Therefore, in the event of the death of the debtor, the demand for the performance of an indivisible obligation could be presented in full to any of the heirs of the debtor; likewise, each of the creditor's heirs under an indivisible obligation could demand performance as a whole until the performance of the obligation (D. 1. 72. 8). In other words, if several creditors or several debtors were involved in the same obligation, then if the subject of the obligation was indivisible, the debtors were recognized as joint and several debtors, and the creditors - joint and several creditors, each of which has the right to present a claim in full. An alternative is an obligation in which the debtor is obliged to perform one of two (or several) actions, for example, to give a slave of Stich or a slave of Pamphil. Both slaves, although alternatively, are the subject of an obligation, but only one of them is subject to execution, transfer. If the transaction does not provide for who is granted the right to choose, then the right to choose one or another subject for execution belongs to the obligated person. If at the very beginning of the obligation (ab initio) the provision of one of the objects was impossible, for example, due to its destruction, then from the very beginning the obligation is considered simple, and not alternative. If the impossibility of fulfilling one object occurred later, moreover, without fault, then the obligation is concentrated on the second object. An optional obligation is the possibility of paying another item instead of the conditional one. In this case, there is only one subject of the obligation, but the debtor is granted a privilege: instead of the main subject contained "in the obligation" ("in obligatione"), offer another, stipulated in the contract. On the one hand, this leads to the fact that if it is impossible to fulfill the main and only subject, the obligation does not focus on the second, optional subject. On the other hand, the right to take advantage of the relief for the replacement of performance belongs to the person obliged to perform the performance. Assume that the pledgee has lost the subject of pledge, which fell into the hands of a third party. The pledgee files a claim against a third party (owner) for the recovery of the subject of pledge. The main obligation of a third party is to return the subject of the pledge, but Paul gives him the benefit of paying the secured creditor the debt secured by the pledge instead of returning the thing (D. 20). One-time obligations were those in which the execution of the transaction was performed once (one action, one transfer of the thing). Permanent - these are obligations under which the debtor was obliged to constantly perform (non-perform) the agreed actions. natural obligations. The very name "natural" ("natural", "natural") obligation was used in the terminology by Greek philosophers who distinguished between the world of phenomena that exist by virtue of the command of power, by virtue of law (nomo), and phenomena that exist from nature (physei). That slave, who, according to strictly civil law, can neither be a creditor and a debtor, nor a plaintiff and a defendant, under the conditions of an overgrown slave-owning economy, receives the functions of an estate manager (rei rusticae praefectus) (D. 34. 4. 31), head of the cash desk (exigendis pecuniis praepositus) (D. 44. 5. 3), etc. Naturally, the range of his legal capacity should be expanded in the interests of the ruling slave-owning class. Natural obligations of slaves and subjects appear. Natural obligations (obligationes naturales) finally took shape in the period of classical law and were specific in that it was impossible to claim back what was paid under the obligation, regardless of whether the creditor had the right to receive payment or the payment was made by mistake. Being legally significant, these obligations, however, did not enjoy claim protection and could not become the subject of a litigation. Obligations in kind developed with regard to subject persons (alieni iuris) and slaves. With the development of Roman law, slaves and subordinates appointed by the householder to manage the estate, cultivate plots of land (peculia), began to increasingly conclude transactions on behalf of their householder. Since legally they could not be a party to the obligation, their role was limited to actual, in-kind participation. But since, as a general rule, contracts concluded by subordinates were made in favor of their head of the family, and he was also responsible for such transactions, contracts in which at least one party was a "subject" could not become the subject of litigation. The rule of "passive responsibility" of these persons based on justice gradually developed, and the term "natural" ("natural", "natural") obligation was fixed. An example of such an obligation would be a money loan given to a dependent person and returned to the creditor without the permission of the householder. In this case, the landlord could not claim back what was paid. Grounds for the obligation. There are two reasons for the emergence of obligations: 1) contractual obligations arose from an agreement (contract), i.e., a legally recognized and approved agreement between the parties, concluded in good faith (bonafidae); 2) tort obligations arose as a result of a tort (offense), that is, an illegal act that entailed the emergence of an obligation. Over time it has been seen to exist and be defended as obligations of agreement and torts on grounds that were not previously legally enforceable. The following phrase appears in the Digests: "Obligations arise either from a contract, or from an offense, or in a peculiar way from various kinds of grounds" (D. 44. 7. 1). Thus, two more categories arose: 1) as if contractual obligations (quasi ex contractu from quasi-contracts) arose in the event of the conclusion of a contract that did not exist before and did not fall under the content of any known contract. In this case, the contract that was most similar to the one concluded was applied, and the obligation was considered "as if contractual"; 2) as if tort obligations (quasi ex delicto - from quasi-delicts) were similar, as it were, to contractual obligations and arose as a result of unforeseen and not falling under any type of torts (offences). As if contractual obligations and, as it were, tort obligations are named so for the first time in the Institutions of Justinian, finally approving the division of obligations into four types: "arise from a contract or, as it were, from a contract, from a tort or, as it were, from a tort." 6.2. Parties to the obligation Replacement of persons in obligation. Substitution of parties in an undertaking was initially absolutely not allowed. Roman law in the early stages was a strictly personal relationship between the creditor and the debtor, which, in conditions of limited civil circulation, did not cause significant inconvenience. The road to the replacement of persons in the obligation was laid by an innovation that arose quite early (updating the obligation), by means of which the creditor could transfer his right of claim to another person. With the consent of the debtor, the creditor entered into an agreement with a third party similar to the original maintenance obligation. The new contract canceled the old one, establishing legal obligations between the same debtor and the new creditor. This form of replacement of the creditor in the obligation was rather cumbersome, complex and could not meet the needs of the developing turnover. First, the innovation required the consent of the debtor, which he could not give for some reason. Secondly, the conclusion of a new contract not only canceled the old one, but also terminated the various forms of security established for it, which also complicated the position of the new creditor. The innovation was replaced by a more perfect form of replacing the creditor, and then the debtor. With the approval of the formulary process, when it became possible to conduct business through a representative, a special form of transfer of obligation was found, called a cession (cessio). Its essence was that the creditor, wishing to transfer his right of claim to another person, appointed him as his representative to recover from the debtor and transferred this right to him. In later Roman law, cession becomes an independent form of transfer of rights from the former creditor to another person. It eliminates the shortcomings of innovation: the consent of the debtor was not required for the assignment, he only had to be notified of the replacement of the creditor. In addition, the assignment did not cancel pre-existing security obligations; with the right to claim, the security of the obligation also passed to the new creditor. To protect the interests of the assignee, a special claim was brought against him. The cession was concluded at the will of the creditor, by a court decision, and also at the request of the law. Assignment was not allowed if the claim was of a purely personal nature (for example, the payment of alimony), with controversial claims, and it was also forbidden to transfer the claim to more influential persons. Liabilities with multiple creditors and debtors. There are always two parties involved in a contract. Each party may be represented by one or more persons. If several creditors or several debtors appear in a legal relationship, their mutual relations between themselves and the opposite party are always the same. First, several creditors or several debtors in an obligation could have a shared right or shared obligation. Such a right (obligation) arose when the content of the obligation allowed division and, at the same time, neither the agreement between the parties nor the law established the rights of claim of each creditor in full or the full responsibility of each of several debtors. For example, two persons under a loan agreement took 300 sesterces from a third person. If it is not seen from the loan agreement that they are responsible for each other, then each of the borrowers must return to the lender half of the total amount - 150 sesterces. Secondly, in the obligation there could be a joint right or a joint and several obligation. A contract, a will, a joint infliction of harm could be the source of a joint obligation. A solidary obligation could also arise due to the indivisibility of the obligation. An example of a joint and several right in an obligation is an agreement with several creditors, which provides for the right of each of them to demand from the debtor the performance of the entire obligation. In this case, the debtor who performed the obligation in relation to one of the creditors was released from the obligation to perform the obligation in relation to the other creditors. Joint and several obligation took place in the presence of several debtors. It provided for the creditor's right to demand the performance of the entire obligation from any of the debtors. The performance in this case of the obligation by one of the debtors terminated the obligation in respect of the other debtors. 6.3. Termination and Enforcement of Obligations The procedure for fulfilling the obligation. Every obligation is a temporary legal relationship. The normal way to terminate it is execution (payment). Prior to performance, the debtor is in a certain way bound by an obligation, to a certain extent limited in his legal freedom. The limitation, bondage of the debtor is terminated by the performance of the obligation, releasing him from the obligation. To do this, a number of requirements must be met. 1. The obligation must be performed in the interests of the creditor. It is recognized as executed provided that the creditor himself accepted the performance. To do this, he must be capable of accepting the performance, that is, be capable. The fulfillment of an obligation in favor of other persons without the consent of the creditor was not allowed and was not recognized with all the ensuing consequences. There were a number of exceptions to the general rule. The creditor could assign his right to claim to other persons by assignment. If he was incapacitated or became so, then the execution was accepted by his legal representative (guardian, attorney). But even in good health, the creditor could instruct a third party to accept the performance of the obligation. Finally, after the death of the creditor, the performance of the obligation was entitled to be accepted by his heirs. 2. The debtor fulfills the obligation. For the creditor, his personality did not always matter; the obligation could be used by any third party on behalf of the debtor. At the same time, in all cases, the rule must be observed - the debtor must be able to perform, dispose of his property, that is, capable. In the event of his incapacity, the performance of the obligation must be carried out by a legal representative. 3. The place of fulfillment of the obligation is of great practical importance, as it determines the moment of transfer of ownership of the purchased goods, bearing the risk of its accidental loss during transportation. In this regard, the place of performance of the obligation was stipulated in the contract, otherwise the general rules were in force. If the subject of the obligation was real estate, then the place of its performance was the location of the property. If the place of performance was determined alternatively, then the right to choose the place of performance belonged to the debtor. In other cases, the place of performance was determined by the place of the possible presentation of a claim from this obligation. As a general rule, such a place was considered the place of residence of the debtor or Rome according to the principle: "Roma commbnis nostra patria est" - "Rome is our common Fatherland." 4. The time for the fulfillment of obligations, as a rule, was established by the parties in the contract. In non-contractual obligations, in most cases it was determined by law. When the term of payment (performance) was not indicated either in the contract or in the law, the rule was: "In all obligations in which the term is not provided, the debt arises immediately", as well as "ubi pure quis stipulatesus fuerit, et cessit et venit dies" - "if the contract is concluded without a term and condition, then the moment of the obligation and the term of execution coincide." Liability of the debtor for non-fulfillment of the obligation and compensation for damage. When the due date for payment (execution) specified in the contract or otherwise determined, the debtor must fulfill the obligation. Otherwise, there is a delay in the performance of the obligation. To recognize the debtor's delay, the following conditions were required: a) the presence of an obligation protected by a claim; b) due date for payment (execution), "maturity" of the obligation; c) the presence of the debtor's fault in violation of the term; d) reminder of the creditor about the due date of payment. In a more developed Roman law, Justinian's legislation established that if an obligation contains an exact deadline for fulfillment, then he, as it were, reminds the debtor of the need to pay (dies interpellat pro homine - the term reminds instead of a person). At the same time, the thief was always considered to be in arrears. The delay in execution entailed important negative consequences for the debtor: a) the creditor had the right to demand compensation for all losses caused by the delay; b) the risk of accidental loss of the subject of the obligation passed to the party guilty of the delay; c) the creditor could refuse to accept the performance if it lost interest for him. The creditor may also be guilty of violating the deadline for fulfilling the obligation (for example, he refused to accept the fulfillment without good reason). In this case, there are also negative consequences for the creditor. He is obliged to compensate the debtor for the losses caused by non-acceptance of performance. After the creditor's delay, the debtor is liable only for intentionally caused harm, and not for mere fault. The risk of accidental loss of the thing also passes to the overdue creditor. Performance must strictly comply with the content of the obligation. Without the consent of the creditor, it cannot be performed in parts (unless it is provided for by the contract), ahead of schedule, and replacement of the subject of the obligation is not allowed. Any deviations from the content of the obligation may be allowed only with the consent of the creditor. Non-fulfillment or improper fulfillment of an obligation was recognized as a deviation from the terms of the contract, a violation of one of the above requirements for fulfillment. The debtor's liability for non-fulfillment or improper fulfillment of an obligation occurred only in the presence of special conditions - guilt and harm. In the absence of at least one of these two conditions, liability did not arise. Roman jurists understood guilt as failure to comply with the conduct required by law. Lawyer Pavel wrote: "If a person complied with everything that is necessary ... then there is no guilt." That is, guilt was interpreted by Roman lawyers as unlawful behavior. Roman law knew two forms of guilt: a) intent (dolus), when the debtor foresees the onset of the results of his behavior and wishes them to occur; b) negligence, negligence (culpa), when the debtor did not foresee the results of his behavior, but should have foreseen them. The same Paul said: "Guilt exists when it was not provided for that which could be provided for by a caring person." Negligence is of varying degrees - rough and light. Gross negligence (culpa lata) is not a manifestation of that measure of care, attention, diligence, caution that ordinary people usually show. Ulpian wrote: "Rough fault is extreme negligence, i.e., failure to understand what everyone understands." In its meaning, gross guilt was equated with intent. Another Nerva lawyer argued that "too gross guilt is intent." The second degree of guilt culpa levis - light guilt is determined by comparing the behavior of a certain "good", caring, kind owner with the behavior of a debtor. If the debtor's behavior did not meet the requirements of the behavior of a zealous owner, he was found guilty, but light guilt was established. Roman lawyers developed a model of the behavior of such a kind, caring, diligent owner, which became a measure for determining the guilt of the debtor. Such guilt was also called culpa levis in abstracto - guilt according to an abstract criterion, that is, a certain abstraction, uncertainty served as a measure for comparison. Roman law also knew a third kind of guilt - culpa in concreto - concrete. It was determined by comparing the attitude of a person to his own and other people's affairs (things). If the debtor treated other people's affairs (things) worse than his own, then there is a specific fault. If a comrade treats the affairs of the partnership as his own, his behavior is impeccable; if worse, he is guilty. In developed Roman law, the debtor's liability for failure to perform or improper performance of an obligation occurred on the indispensable condition that the debtor's misconduct caused property damage to the creditor. Initially, the responsibility of the debtor was of a personal nature: he was punished physically. Termination of an obligation other than performance. It is quite obvious that there have been cases in business life when an obligation could be terminated in addition to performance. A novation is an agreement that cancels a pre-existing obligation and creates a new one. The novation extinguished the effect of the previously existing obligation, provided that: a) the novation was concluded for this very purpose - to extinguish the previous obligation; b) it contains a new element compared to the original obligation. This new element could be expressed in a change in the basis (for example, a debt from a loan turned into a debt from a purchase and sale), content (instead of transferring a thing for hire, it was considered transferred to a loan), etc. If the parties to the obligation changed, then this there has already been an assignment of a claim or transfer of a debt. Offset (compensation). In economic life, it sometimes turned out that several obligations arose between the same subjects, and, moreover, some of them were mutual. Mutual offset was used in final settlement of such liabilities. To apply the offset, it is necessary to comply with the established rules: a) counterclaims; b) valid; c) homogeneous; d) "mature", i.e. both were due for payment; d) indisputable. As a general rule, the death of one of the parties does not terminate the obligation, since both rights and debts pass to the heirs. However, in cases where the identity of the debtor is of particular importance (for example, alimony obligations), the death of the alimony or alimony authorized person terminates the obligation. Debts arising from torts were also not inherited. However, if as a result of the tort the heirs enriched themselves, the enrichment is subject to seizure, it should not be part of the inheritance, although the heirs did not bear responsibility for the delict itself. The termination of the obligation also took place in the event of an accidental impossibility of performance. It could be physical and legal. Physical occurred in cases where the subject of the obligation accidentally perished, and legal - when the subject of the obligation was withdrawn from circulation (for example, a slave redeemed for freedom after the conclusion of an agreement on its sale). 6.4. Contracts and their classification The concept and content of contracts. Under the contract (contractus) is understood the most important source of obligation and the most common. The word "contract" comes from the verb contra-here or con-traho, which means literally "to pull together". There are also synonyms: obligare, adstringere. A contract is an obligation that arises by virtue of an agreement between the parties and is enforceable. The so-called pact (pactum) - an agreement devoid of claim protection should be distinguished from the contract. Sometimes both these concepts were united by the more general term "agreement". In the beginning, the power of the Roman treaty was based on its solemn rites. Later, Cicero said about the power of the contract: "The basis of law is fidelity, that is, firm and truthful observance of the word and the contract." Treaties are unilateral, bilateral and multilateral. One-sided is a loan agreement. Here, the obligated party is the borrower, and the rights are on the side of the lender. In bilateral agreements, each of the parties has both the right to demand and the obligation to perform, i.e. each of them is both a creditor and a debtor. An example is a contract of sale. Such contracts are called synallagmatic (from gr. - exchange, exchange agreement). In addition to buying and selling, this can also include the hiring of things. There are also tripartite agreements, for example, a contract of carriage by sea, in which three parties participate: the shipper, the carrier and the consignee. Partnerships are multilateral agreements. For a contract to be valid, it must meet a number of conditions. First, there must be an agreement between the contracting parties on the content of the contract. Such an agreement cannot be contrary to so-called good morals (boni mores). And secondly, the content of the treaty must be physically possible. Roman lawyers gave such examples of the impossibility of execution: someone undertook to touch the sky with his finger, someone undertook to sell a hippocentaur (a fantastic creature with a human face and a horse's body). In Roman law, there was the concept of strict law contracts - negotia strictiiuris. In ancient republican law, not only the procedure for concluding a contract was imbued with formalism, but also the interpretation of its content and its application. Many scholars write about the cult of the letter of the law or contract. With the passage of time, the ancient cult of the word "quod dictum est" ("what is said") was done away with. They began to delve into the meaning of the law, proceed from "what was done" - "quod actum est". Since that time, the true intentions of the actors began to be considered the most important. They begin to move away from the formal interpretation of the content of the treaty by its literal content. They began to say that the treaty was interpreted "in good conscience." Therefore, treaties that allowed such an interpretation began to be called negotia bonae fidei, and the claims arising from them - actiones bonae fidei. The latter began to include newer categories of contracts, except for a loan (mutuum), real and consensual contracts. Types of contracts. Treaties in Roman law were divided into contracts and pacts. Contracts are agreements recognized by civil law and provided with claim protection. Contracts were divided into four groups (types): verbal, real, literal and consensual. Verbal contracts are contracts that become legal when certain words are spoken. These agreements replaced formal agreements (for example, mancipations) with the development of commodity-money relations in Rome. From the previous formal contracts, this form retained only ritual expressions. Real contracts appeared with the revitalization of economic enterprises, when verbal contracts had exhausted themselves. For their validity, real contracts required a simple transfer of a thing and excluded ritual expressions. Literal contracts arose after real contracts. The binding force of these agreements consisted in drawing up a written document on the agreement reached between the parties. Consensual contracts are the last type of contracts. They were based on achieving the will of the parties. The number of contracts included in each of the listed groups was constant and could not be expanded. In view of this, new contracts that appeared after the system of the above-mentioned types had developed formed a group of so-called nameless contracts (contractus innominati). In addition to formal transactions, social relations in Rome were regulated through informal agreements - the so-called pacts. Covenants (pacta) are informal agreements that, as a general rule, were not enforceable. Over time, some of the pacts have been enforceable. The contracts were bilateral transactions. At the same time, depending on on whom they imposed duties: on one or two sides, they were divided into unilateral and bilateral. For example, a loan agreement was unilateral, since only the borrower was responsible for it. In contrast, the contract of employment is bilateral, because obligations are assigned not only to the employer, but also to the landlord. The lessee must pay the rent on time and return the thing at the end of the contract, while the lessor is obliged to deliver the thing to the lessee. Bilateral treaties, in turn, differed from each other. This difference concerned the equivalence of obligations for the parties. In some contracts, the parties had equivalent obligations. So, under the contract of sale, the seller's obligation to transfer the thing corresponded to the buyer's obligation to pay the purchase price. These responsibilities are the same. Such agreements, where there were equivalent, reciprocal obligations, were called synallagmatic. In other contracts, the main obligation of one of the parties corresponded to the secondary obligation of the other party (secondary in the sense that it could not always arise). For example, in a loan agreement, the borrower is obliged to return the thing taken on loan. The lender is liable only when the transferred thing through his fault causes damage to the property of the borrower. For example, the borrower is given a sick animal that infects the borrower's animals. The latter is forced to bear the costs associated with the treatment of sick animals. In view of this, the lender is forced to reimburse all costs associated with the treatment of animals. Roman law also distinguished between strict law contracts and contracts based on good conscience. Contracts of strict law are those in which priority was given to the external expression of the contract, i.e., the literal text. Hence, the party could not put into the contract a content that differs from the literal text of the law. 6.5. Terms of the contract For an obligation to arise at the conclusion of a contract, several conditions were required, without which the contract could not exist. These conditions were called essential or necessary. These conditions included: 1) consent of the parties and expression of will; 2) the existence of the subject of the contract; 3) the basis (purpose) of the contract; 4) the ability of subjects to conclude an agreement. The will of the parties to the contract. The agreement was to be based on the agreed expression of the will of the parties. In ancient law (ius civile), it was believed that the consent of a person to a transaction, if such consent is expressed in an official way, is a confirmation of the actual will of the person to conclude an agreement. For civil law, it was not important what a person means by agreeing to a deal, and whether he really agrees to it. If the will was carried out, this was enough to consider that the conclusion of the agreement is the real desire of the party. The contradiction between the words and intentions of the parties arose during the development of praetor law and "good will" treaties. In order for the contract to be valid, it was necessary for the parties to know why and what it is about. However, the theory of the will, although recognized, was of secondary importance until the postclassical period. Interest in clarifying the question of what the party actually meant when concluding the contract arose only when the will was unclear. The significance of the will was finally established in the era of Justinian. During this period, it began to be taken into account not so much what was stated by the parties, but what they meant. Deception (dolus). Fraud at the conclusion of the contract consisted in the fact that one party deliberately persuaded the other to conclude an agreement that was unprofitable for her. In deception, it was not about the discrepancy between the expression of the will and the actual will of the person. In the above definition of deceit, attention should be paid to the word "intentional". The person who provoked the counterparty to conclude an unprofitable contract was not mistaken in expressing his will, since it was precisely the deception that was the will of this party. The term "dolus" meant both deceit, dishonesty, and intent. Malicious intent was called dolus malus. During the period of strict law (stricti iuris), the correct ritual form of the will was recognized as more important than the actual intentions of the parties. In this regard, it was not important that one of the parties deceives the other. Treaties concluded under the influence of fraud were still recognized as establishing an obligation. The contradiction of the dolus to the treaties of "good will" caused the introduction of edicts by the praetors protecting the deceived parties. An action against a party who persuaded a treaty by deceit was introduced by a praetorian edict during the reign of Cicero. This lawsuit was applied by persons who were deceived (the plaintiff) by the counterparty in the transaction (the defendant) in the following cases: - if no other means of protection could be applied; - the claim was applied within one year from the date of conclusion of the transaction under the influence of fraud; - prior to filing a claim, an assessment of the circumstances of each particular case was required. Based on the results of the consideration of the case and in the event that the defendant's guilt was determined, he was awarded the restoration of the original position (arbitration claim). Otherwise, the defendant was called upon to compensate the deceived person and was declared dishonored (infamnia). It is interesting to note that if a person belonging to the lower class of Roman society turned out to be deceived, and a high-ranking person was a deceiver, then a noble person was not condemned according to general principles. A special claim was brought against such a person, although based on the circumstances of the case, but protecting the privileged position of the nobility, if only by the fact that the corresponding expressions (deceit, bad faith, etc.) were specially mitigated in the process of litigation. Mistake, mistake. Misconception (error) is an erroneous idea about any fact when concluding a contract, regardless of the will of the counterparty. Delusion (mistake) differs from deceit in that the second party does not influence the erring one in order to persuade it to a bad deal. An obligation arising from a contract entered into in error was considered null and void. The misunderstanding could not have arisen from the extreme negligence of one of the parties, connected with the fact that, through her own fault, she did not delve into the transaction, despite the fact that all the facts were communicated to her. The error could only come from ignorance of the facts (error facti) essential to the conclusion of the contract. Just like a mistake due to extreme negligence, an error due to ignorance of a legal prescription (error iuris) was not recognized. It was believed that Roman citizens could not be mistaken about the prescriptions of law, a priori it was assumed that all citizens were legally savvy: "Iuris quidem ignorantiam cuique nocere" - "ignorance of law harms anyone" (D. 22. 6. 9). Only women, warriors, minors and some illiterate persons could refer to error iuris, but only as an exception. The following misconceptions may have occurred during the conclusion of the transaction: - an error in the essence and nature of the transaction (error in negotiation). If one party thought that he was selling a thing, and the other believed that it was a gift, then there was a delusion in the nature of the transaction. The will of the parties regarding the nature of the transaction must be the same, therefore, in this case, the will to conclude the contract was imaginary, and the transaction was declared invalid; - an error in the subject of the transaction (error in re, error in corpore) leads to its invalidity: "When there is a disagreement regarding the subject itself, the sale is obviously invalid" (D. 18. 1. 9). As with an error in the nature of the transaction, the problem lies in the need for the agreed will of the parties to conclude a transaction, and if there is no agreement on such an essential condition as an object, then the transaction cannot create an obligation. If, for example, they made a mistake in the name of the object, but not in the object itself, the transaction was recognized as valid: "An erroneous description of the object does not harm" (D. 35. 1. 33); - an error about the essence of the object (error substantial) - this is a delusion about the material from which the object is made. For example, the party believed that a gold jewelry was bought, but it turned out that it was only gilded. Concerning such errors there were various opinions. Some Roman jurists believed that what is being bought is a thing, not its material. Others objected that the material is of great importance in the purchase, so the material of the item is an essential condition of the contract and a mistake about the nature of the item should lead to the invalidity of the transaction. Directly opposite statements of such Roman jurists as Marcellus and Ulpian are known, the first of which emphasized the insignificance of the material, and the second, on the contrary, spoke of its significance. Gradually, the opinion about the significance of the material prevailed and error substantia began to be recognized as law; - an error in the identity of the counterparty (error in persona) An error in the identity of the party with whom the transaction was concluded most often occurred in acts of inheritance and marriage law, as well as transactions in which the occurrence of an obligation was associated with a specific person (for example, a partnership agreement). Simulation. Simulation (simulatio) is a consenting statement of the parties about the conclusion of a transaction, while in reality the parties are not interested in the execution of the transaction, but want to achieve some other legal or non-legal goal. The simulation could be: - absolute, in which the parties did not want to conclude an agreement, but they needed the third party to have the impression that the agreement was concluded. If a third party suffered losses as a result of such a simulation, then it was considered an offense and recognized as a tort. In this regard, with absolute simulation, the parties could have joint and several liability for damages to a third party; - relative, in which the parties entered into one contract, although they wanted to conclude a completely different one. Legal relations between the parties nevertheless arose if the contract was formally concluded correctly. A special kind of simulation was knowledge that the parties could not or did not want to apply when concluding a transaction (reservatio mentalis). The parties deliberately entered into an agreement according to an agreed expression of will, although they had no desire to conclude it, but they could not declare this, because they were obliged to keep professional secrets. Violence and threats. Violence (vis) is the illegal action of one party to a transaction in relation to the other party in order to force it to conclude a contract. Such an agreement was not beneficial to the counterparty and was concluded only because of the use of violence. Initially, violence was understood as the use of brute physical force in relation to a person. A person who wanted to be forced to conclude an agreement could be locked up in a house (in domo inclusit), bound in chains (ferro vinxit), put in prison (in carcerem deduxit) by the counterparty. Over time, violence began to be understood as "mentis trepidatio, metus instantis velfuturipericuli causa" - "spiritual trembling due to fear of present or future danger" (D. 4. 2. 1). Violence could be: - public (vis publica); - private (vis privata); - absolute (vis absoluta), if the coerced party could fear for his life if he refused the deal. If it turned out that the transaction was concluded with the use of violence, then it was not considered to be establishing the right, and the party that applied it was punished. However, strangely enough, violence was not considered dishonorable towards the Roman magistrates, even if it became known that they extorted money from the population through violence and intimidation. A threat (metus) is an unlawful intimidation with the aim of inducing a person to enter into a deal to which he does not want to agree. The term "metus" literally means "fear, intimidation". The threat was not a discrepancy between the expression of the will of the person and his inner will, because the person really wanted to make a deal in order to avoid the action that he was threatened with. A threat was considered illegal if the actions by which this threat was carried out, or the actions that were threatened, were illegal: "Propter trepidationem mentis causa instantis velfuturi periculi" - "In view of concern about present or future dangers" (D. 4. 2. 1) . A deal made under the influence of a threat did not automatically become null and void, but the praetor granted "restoration to its original position" (restitutio in integrum), as well as an action by actio metus causa. With the help of this claim, a person who entered into a deal under threat could claim damages in four times the amount within one year from the date of the conclusion of the contract, if the restoration to the original position did not occur. During the following year, compensation was given only in a single amount. Perhaps there was also an objection from the side of the defendant to the plaintiff in case the defendant turned out to be the injured party: exceptio metus. Subject of the contract. The subject of the contract is the object on which it is concluded. Due to the fact that contracts were one of the types of obligations, their subject could be any things that could be the subject of an obligation: generic and individually defined things, tangible and intangible; as well as a special object of obligation - money and interest. The action constituting the subject of the contract must be certain (for example, provide money in such and such an amount). The content of the obligation must be specified in the contract. However, an alternative obligation could take place in the contract, that is, associated with a choice (for example, the debtor must provide either a thing or a certain amount of money). Action must be possible. Roman jurists believed that there is no contract and no obligation if the subject matter is impossible. The impossibility could be physical (selling a non-existent thing); legal (sale of a thing withdrawn from circulation); moral, i.e., contrary to the requirements of morality or religion (the obligation to sell the stolen). It could take place when the impossibility of action occurred after the conclusion of the contract (for example, the thing was destroyed as a result of a fire that followed the conclusion of the contract). In this case, the validity of the obligation depended on whether the debtor was liable for the occurrence of the circumstance that led to the impossibility of performance. This was determined either by law or by contract. The action must be legal. The contract should not have as its subject an action that violates the rule of law. Thus, the agreement on usurious interest is invalid. The purpose of the agreement. The basis (purpose) of the contract is a subjective motive or material interest that encourages the parties to take on certain obligations. The Romans, bearing in mind this condition, spoke of the immediate goal (cause). The goal must be legal, i.e. not contrary to the law. If the causa is illegal, then it did not give rise to a contract. Likewise, the goal should not be immoral. Roman law proceeded from the premise that an agreement based on such a goal was not to be honored. In Roman law, there were treaties in which the underlying causation was not visible. This, however, did not render such contracts null and void. Such contracts were called abstract. Their example is stipulation, cession. The ability of subjects to conclude a contract. The ability of subjects to enter into contractual relations was determined by the legal capacity and legal capacity of the subjects of obligations. Conclusion of a contract. As mentioned above, the contract (contratus) comes from the Latin verb сontrahere, which literally means to contract, that is, to bring the parties into one will. This combination of the will of the parties leads to the conclusion of the contract. The process of such a combination of the will of the parties, or, in other words, the conclusion of an agreement, is a rather complex set of specific legal actions. It begins with the declaration of a party wishing to conclude a certain contract of its intention to enter into a legal obligations relationship with another person in order to achieve some goal. Such an offer was called an offer (propositio). The offer could be expressed in any form and in any way, as long as it was brought to a certain or indefinite circle of people and correctly perceived by them. Each contract or group of contracts had its own offer. The offer itself did not give rise to a contract. For the emergence of the contract, it was required that the offer was accepted by the interested party (accepted). The acceptance of an offer to conclude a contract was called acceptance. In consensual agreements, the acceptance of an offer was the achievement of an agreement, i.e., the conclusion of an agreement. In other types of contracts, in addition to accepting an offer, certain formalities were required for the conclusion (observance of the form, transfer of a thing, etc.). By the moment of their fulfillment, the time of transfer of ownership of the thing from the alienator to the acquirer, the transfer of the risk of accidental loss of the thing, and the occurrence of other legal consequences were determined. For the conclusion of the contract, the personal presence of the parties was required, since the obligation was interpreted as a strictly personal relationship between certain persons. The legal consequences arising from the obligation extended only to the persons who took part in its establishment. Therefore, initially it was not allowed to establish an obligation through a representative. Such a limited idea of the nature of the obligation corresponded to a subsistence economy, when exchange relations were in their infancy. With the development of turnover, the practice of concluding contracts through a representative gradually appears. 7 Theme Certain types of obligations 7.1. Verbal contracts The concept of verbal contracts. Verbal contracts (obligationes verbis contractae) are contracts concluded in verbal, oral form (verbis - in words). They are already known from the Laws of the XII tables, since already at that time such a form of verbal contract as sponsio (an ancient type of stipulation) was used. The verbal form arose with the development of Roman law in order to simplify the process of establishing a legal obligation between the parties due to the fact that at some point the complex formalization of the process of concluding an agreement began to interfere with the normal development of economic relations. With the introduction of verbal contracts, symbolic gestures and public statements were no longer used, but the need for oral ritual expressions remained. The debtor had to agree that he was taking on a certain obligation. It should be noted that the answer to the question literally had to coincide in its wording with the question: "A verbal obligation arises through a question and an answer, for example: do you promise to give? I promise; Gai 3). The most common verbal contracts were: stipulation (stipulatio), an oath promise to provide a dowry (dotis dictio), a freedman's promise to fulfill certain obligations in favor of the householder (iusiurandum liberti or promissio iurata liberti). Stipulations. Stipulation (stipulatio) was a generic name for verbal contracts concluded in the form of utterance of solemn words. Stipulation played a large role in Roman turnover, since all relations can be put in the form of a question and an answer. Stipulation was of two types - simple and complex. The latter was used to establish a guarantee (adpromissio), representation by the creditor (adstipulatio). Stipulation is a one-sided contract: the obligation arose on the side of the person who made the promise, and only the person who received the promise could be the creditor. Stipulation was used for all kinds of unilateral contracts. In rare cases, it was used for a bilateral agreement. In this case, it was necessary to pronounce two ritual phrases (two stipulations) instead of one. Stipulation was used to forgive debt. It was used in an oral and simple form, so they began to use it for the purpose of innovation. Stipulations began to be concluded in order to terminate an already existing obligation, putting a new one in its place. All ritual formulas of stipulation were precisely defined. In ancient Rome, stipulation was only in the form of sponsio and only by Roman citizens. However, there were physical restrictions even for Roman citizens to conclude a stipulation due to the fact that it was an oral contract and was not available to the deaf and dumb, who could not hear and answer the question and give an answer. Historically, the requirements for ritual phrases have changed. If in ancient Rome the phrases were precisely defined and the answer to the question had to coincide with the question (“do you promise? I promise; will you give? I will give; you vouch? I vouch; will you do it? stipulations (however, as for other verbal contracts) became an expression of the consent of the parties to the transaction. Stipulation could be concluded not only between the creditor and the debtor, but also with third parties, guarantors of one of the parties. In this case, a guarantee was established, that is, the obligation of a third party for the fulfillment by the debtor of this obligation. Guarantee was a common form of securing obligations. There were several forms of guarantee - a guarantee to pay for the debtor (private intercession), to pay jointly with the debtor (cumulative intercession), to pay in the event of default by the debtor (subsidiary intercession). The most common was cumulative intercession, in which the creditor, at his choice, could demand performance from both the debtor and his guarantor. This was disadvantageous to the guarantors, and in the time of Justinian the responsibility of the guarantors was mitigated. The fourth story of Justinian establishes that the guarantor could raise an objection to the claim, so that the creditor first of all levied execution on the main debtor. Later, stipulation began to allow other persons to join either the creditor or the debtor as independent creditors or debtors. The subject of stipulation could be any permitted performance - a sum of money or any thing. The very procedure for concluding a stipulation was important, if the necessary order was observed, then the obligation arose regardless of what material basis led the parties to conclude an agreement, what economic goal they pursued and whether the goal that the parties had in mind was achieved. Depending on the subject of the contract, the stipulation could be: - if the debtor assumed the obligation to pay a certain amount of money to the creditor. The debtor could be obliged to pay this amount for the purchase (contract of sale), rent (rent), loan, compensation for damage, etc. (stipulatio certae creditae); - in the event that individually defined things or a certain number of generic things (stipulatio certae rei) were the subject of the contract; - in all other cases, when the debtor undertook to do something in favor of the creditor (stipulatio incerti). Stipulation was strictly formalized. The debtor was recognized as taking on only that obligation, in respect of which he confirmed his consent. For example, if a thing that was the subject of an obligation perished, then the debtor was considered released from performance (but only if the thing perished not through his fault, but due to unforeseen, force majeure circumstances). The creditor had the right to demand the fulfillment of the obligation taken by the debtor through the court. He could also try to prove the debtor's guilt in the destruction of the thing (culpa infaciendo). If the debtor's guilt in the destruction of the thing was proved, then the claim was brought on the same grounds as if the thing were intact. The claims that were brought to the court were abstract - it did not matter in connection with what the stipulation arose, only the very fact of its existence mattered. The claim could be brought within two years from the date of the conclusion of the stipulation. Under stipulatio certae creditae, the amount of the debt was set in advance by the parties, and the court only awarded the debtor to performance; under stipulatio certae rei, the amount of performance (the monetary value of the thing) was determined by the court; and under stipulatio incerti, the court determined both the monetary value and the possibility of fulfilling the debt in kind. Due to the abstract nature of stipulation and the emergence of an obligation immediately at the time of concluding an oral contract, various uncomfortable situations for the parties could arise. For example, if the stipulation was made in order to provide a loan to the debtor, but the creditor did not transfer this money to him, then under the law the obligation still arose. The creditor could go to court with a claim against the debtor, and he could only defend himself, proving that the creditor wanted to cash in on the deal. However, if the debtor was deceived and understood that the creditor was not going to lend him money, he could independently withdraw from the transaction and be the first to challenge the loan in court by means of a lawsuit. Other forms of oral contracts. A specific variety of verbal (oral) contracts is the appointment of a dowry (dictio dotis). It is assumed that this was originally a special expression of will, made at the betrothal, performed in the form of a sponsio and bearing the name of sponsalia, why this special clause is called lex sponsalibus dicta. This kind of promise received sanction in the form of an actio ex sponsu. Since the contract of betrothal did not enjoy the protection of claims, the promise to establish a dowry acquired an independent meaning as a separate form of an oral contract. Unlike stipulation, dotis dictio contained no question and answer; here was an oral statement - a promise of the dowry setter and an expression of consent on the part of the one in whose favor this promise was made. There was also such a form of oral contract as an oath promise of services from a freedman in relation to his patron who set him free (jurata operaram promissio). Generally speaking, it was the duty of the freedman to show allegiance and the services that flowed from it to his patron (operae officiales). This obligation acquired a legal and legal character only when the freedman assumed a special obligation of this kind, which he confirmed by an oath or oath. On this basis, the patron, undoubtedly, opened up the possibility of exploiting a freedman. 7.2. Literal Contracts The concept of literal contracts. A literal contract is a contract concluded in writing. The written form was mandatory for them. It was believed that the contract was concluded and the obligation was established if a written document was drawn up. This form of written contract arose in the practice of Roman law in the III-II centuries. BC e., however, in Rome it did not take root and was associated only with the activities of economic enterprises that required accounting for obligations to facilitate the implementation of their activities. Accounting for the monetary operations of the enterprise was carried out in the creditor's and debtor's income and expense books, in which entries were made of the amount owed as paid to the debtor - in the creditor's book and as received from the creditor - in the debtor's book. It was in this correspondence that their agreement was expressed. Expensilatio or nomina transcriptia. The oldest type of literal contract was expensilatio or nomina transcriptia, in which the obligation was fixed by entering it into the income and expense books. The householder kept records of his expenses and receipts to his budget in a special income and expense book (codex accepti et expensi), entering the names of his debtors there. The record itself did not establish the debt, but only registered it, while the debt arose as a result of the transfer of money. If, by some agreement with the debtor, the debt was recorded by the creditor as paid, and the money loan was entered by the debtor in his own book as received, then a literal contract followed from this. Guy speaks of two forms of entries: "The obligation is established in writing, for example, by means of rewritten claims. A rewritten claim arises in two ways: either from case to person, or from person to person. From case to person, rewriting is carried out if, for example, then that you owe me on the basis of a purchase, or a lease, or a partnership agreement, I will credit you. if Titius delegates you to me" (Gai. 3. 128-130). So, written contracts fixing a debt could arise: "from thing to person" (a re inpersonam) from a debt as a result of a purchase, hire or partnership and were rewritten as a debt of a person; "from person to person" (apersona inpersonam), when one person transfers to another the debt of a third party. Claims under literal contracts were defended by lawsuits. As mentioned above, the entry in the creditor's expense book had to match the entry in the debtor's receipt book. Only in this case did the creditor’s record become proof of the debt: “Those records of claims that are called cash records have a different basis. After all, with them the obligation is based on the transfer of a thing, and not on a letter, for they are valid only if the money is counted; but money creates a real obligation. For this reason, we will rightly say that cash records do not create any obligation, but constitute evidence of obligations already established" (Gai. 3.131). By the end of the classical period, literal contracts fell into disuse, merging with written stipulations. Syngraphs and chirographs. Syngraphs (syngrapha) were a document drawn up in a third person (so-and-so owes such-and-such a sum of money); this document was drawn up in the presence of witnesses, who signed it after the one on whose behalf it was drawn up. This form of written obligations became very widespread already at the end of the republic on the basis of interest-bearing loans concluded between Roman usurers and provincials. During the imperial period syngrapha became a less common type of written obligation; chirographa came to the fore. It was a document drawn up in the first person (“I, such and such, owe such and such so much”) and signed by the debtor. Initially, it was a document that had only the value of evidence, but then they began to associate with it the meaning of the source of an independent obligation: the signatory of the document is obliged to pay on it. Guy explains this newest form of written contracts as follows: si quis debere se aut daturum se scribat; ita scilicet st eo nomine stipulatedio non fiat, that is, if someone writes on a receipt that he owes something or that he will provide something, then an obligation arises; Guy adds: of course, if there was no stipulation under this obligation (then the stipulation would be the basis for the occurrence of the obligation). However, in practice, the chirograph often included a clause about previous stipulation: a combination of oral and written forms of the contract was obtained. Through these documents, obligations were established regardless of whether the amount that the signatory of the receipt was obliged to pay was actually transferred, and without taking into account at all the grounds (causa) on which such a receipt was issued by the debtor. Naturally, given the socio-economic dependence on creditors of debtors who were forced to resort to such obligations, on the basis of the issuance of such documents, abuses should often occur - non-currency loans, when creditors, without transferring the loan currency to the debtors, nevertheless demanded its return. Guy calls this kind of obligation (i.e., the later written contract in the form of a sinograph or chirograph proprium) peregrines (in the sense that the possibility of using the old literal contract for them was controversial, and this was the only form of written contract open to them). The characteristic of this form of obligation as characteristic of peregrines can also be explained by the fact that these obligations arose precisely in the practice of peregrines. 7.3. Real contracts The concept of real contracts. This group of contracts differs from others primarily in the simplicity of the procedure for its execution. To conclude them, no formalities were required: an agreement and the accompanying transfer of a thing by one counterparty to another is enough. And in the absence of a strict form, the creation of an obligation based solely on it is also excluded. Hence the second distinguishing feature of real contracts: they cannot be abstract and are valid only as having a definite basis. As part of the real contracts of Roman law, three contracts had independent significance - a loan, a loan, and storage. All of them are enforceable, that is, with the transfer of property from the creditor to the debtor; they all consist in an agreement obliging the debtor to return to the creditor either the same things that he received from the creditor at the conclusion of the contract, or the same amount of similar things. Thus, real contracts are contracts in which, upon agreement of the parties, the transfer of a thing is necessary. Loan agreement. Loan (mutuum) - an agreement in accordance with which one party (the lender) transferred to the ownership of the other party (the borrower) a sum of money or other things determined by generic characteristics, and the borrower, after the expiration of the period specified in the agreement, was obliged to return the same a sum of money or the same number of things of the same kind. The loan agreement is characterized by the following features: - the contract acquired legal force from the moment of the transfer of the thing following the agreement reached between the parties; - under this agreement, things were transferred that had generic characteristics, that is, calculated by weight, measure, number (for example, oil, wine); - the lender transferred the property to the borrower, which made it possible for the latter to freely dispose of it; - the contract was concluded either for a precisely defined period or for an indefinite period of time. In the latter case, the debtor had to return the thing at the request of the creditor. The loan agreement is a unilateral contract: the obligation that arose from the agreement was assigned only to the debtor. As for the lender, he had the right to demand from the borrower the thing borrowed. The loan did not charge interest on the amount borrowed. However, in practice, the parties entered into a verbal agreement on interest. The amount of interest was different: in the classical period - 12%, under Justinian - 6% per annum. It was forbidden to charge interest on interest. The risk of accidental destruction of the thing received on loan lay with the borrower. This followed from the fact that the subject of the loan became the property of the borrower. Therefore, if the thing was lost as a result of a natural disaster, then the borrower was not released from the obligation to return the thing. Usually the debtor drew up a receipt for the loan and handed it over to the creditor. It happened that the receipt was transferred to the lender before receiving the subject of the loan. This led to the fact that the lender did not transfer the subject of the loan, but demanded the return of money or things. When such facts began to become a mass phenomenon, praetor law came to the aid of the debtor against an unscrupulous creditor. So, if an unscrupulous creditor sued, demanding the return of money that he did not actually give, the defendant was given the right to object (exeptio doli), which meant an accusation of grave bad faith. In addition, the right granted the debtor to be the first to bring an action against an unscrupulous creditor for the return of a receipt to him. It was a conditional claim for the recovery of unjust enrichment from the defendant, because the receipt provided an opportunity for an unscrupulous creditor to demand from the debtor the return of the subject of the contract that he had not received. Loan agreement. A loan agreement (commodatum) consists in the fact that one party (the lender, commodans) transfers to the other party (the borrower, commodatarius) an individually defined thing for temporary gratuitous use with the obligation of the second party to return the same thing safe and sound after the end of use. Like a loan, a loan agreement is also a real contract, that is, an obligation from this agreement arises only when the transfer of the thing to the borrower, the user, has taken place. Not every thing can be the subject of a loan: since under this contract a thing is transferred for temporary use with an obligation to return the same thing, it is natural that only an individually defined irreplaceable and non-consumable thing can be the subject of a loan; if, for example, the subject of the contract is an armful of firewood for the furnace, then as soon as the firewood burns out, the return of the same firewood that was received will become impossible, and we can only talk about returning the same amount of the same things (i.e., about loan). It is impossible to lend, says Ulpian (id quod usu consumitur), things that are consumed during use, except in those exceptional cases when things are taken only for exhibition, etc. (ad pompam vel ostentationem) (D. 13. 6 .3). The loan agreement was concluded in the same way as any other real agreement - through the transfer of things. The borrower received the right to use (or not use) the thing at his own discretion, to derive income from it, but he could not transfer the subject of the loan to third parties. Things that could be the subject of a loan agreement had to have certain characteristics. Such signs were the non-consumability of a thing during its economic use and the individual certainty of a thing (a house, a plot of land, an economic tool, etc.). Under a loan agreement, a thing both in civil circulation and withdrawn from it could be transferred. Unlike a loan agreement, the subject of a loan could be real estate. Under a loan agreement, the lender was not obliged to take special care about the quality of the thing that he provided to the borrower. The thing had to perform the agreed economic function, but there was no provision that the thing should perform it in the best possible way. This is due to the fact that the loan was considered as a gratuitous contract and a variant of economic charity. The loan contract is liable (utilitas) only for one party, the borrower. However, a loan agreement is not such a strictly one-sided agreement as a loan. A loan agreement on the side of the lender is never based on economic necessity, it is a matter of good will and duty of the lender. Therefore, he himself, by providing this courtesy (in the words of the Roman jurist - a beneficence (beneficium)), determines both the form and the limits of this courtesy (or beneficence). But since the lender has rendered courtesy, he has already bound himself: he cannot terminate the contractual relationship at his own will, demand ahead of time the thing provided for use, etc. Such arbitrary actions are prevented not only by decent behavior, but also by the obligation assumed: The jurist emphasizes that the granting of a loan (commodatum) is a mutual transaction and claims from both parties arise from it. Of course, the obligation of the borrower is the main one: firstly, it always arises and unconditionally - as soon as someone else's thing is received for temporary use, an obligation to return this thing necessarily arises; secondly, this is the main obligation, and in terms of its economic significance - the return of a thing is the essence of the entire emerging relationship. Under a loan agreement, there is no equivalent to providing a thing for use, since use under this agreement is provided free of charge. An obligation on the side of the lender may arise only by accident if the very provision of the thing for use involves the fault of the lender, from which losses have arisen for the borrower. In order to recover these losses from the lender, the borrower received a claim. But Roman lawyers described this possible (eventual), not unconditionally arising claim in its very name: if the claims of the seller and the buyer, the landlord and the tenant each had their own name, reflecting its independent meaning, then here the claim bore the same name - actio commodati, and the claim of the lender was called actio commodati directa, direct, main, and the claim of the borrower was called actio commodati contraria, the opposite, reverse, counterclaim, which may or may not arise. The lender is liable only for intentional guilt and serious fault, but not for guilt (culpa levis): entering into a contract without personal benefit, he, according to the principles of Roman law, cannot be considered obliged to take particularly careful measures to protect the interests of the borrower; if the thing is not of first-class qualities, the borrower does not have the right to file a claim against the lender on this basis; the same principles apply here as found in the proverb of popular wisdom: "Don't look a gift horse in the mouth." But if the lender admits guilt, which is equated with intent, he must answer to the borrower. The Roman lawyer recognizes such a dishonorable attitude on the part of the lender, for example, in cases where the lender, having provided the thing for use for a certain period, accepted by him, then prematurely and at a moment unfavorable for the borrower (intempestive) stops using and takes the thing away: such behavior is unacceptable not only from the point of view of decency (officium), but it also contradicts the obligation assumed under the agreement, in this sense, the loan agreement acquires bilateral features: geritur enim negotium invicem et ideo invicem propositae sunt actiones given to each party in relation to the other) (D. 13. 6. 17. 3). storage agreement. Storage or deposit (depositum) - an agreement in accordance with which one party (bail-keeper, depository) received from the other party (bail-keeper, depositor) an individually defined thing and undertook to store it free of charge for a certain period or until demand and, upon completion of storage, return it safe and sound to the party that transferred the thing for storage. The contract of storage is a real contract, obligations arose from the moment the thing was transferred. Since the subject of the agreement was an individually defined thing, the same thing at the end of the storage agreement had to be returned to the bailor. Storage is a gratuitous contract, therefore the depositor is obliged to store the thing as an ordinary person and must not take any special measures, if the latter are not provided for in the contract. Hence, the deposit taker was not liable for harm if there was slight negligence in his actions. However, if the actions of the bailor were seen as gross negligence or intent, he was liable for the harm caused to the bailor. An exception to this rule occurred in two cases: when the depositor himself volunteered to store the thing, and when the transfer of the thing took place under emergency circumstances, for example, in case of fire. In the latter case, the responsibility of the custodian increased, and he answered to the bailor in double size. In this example, as Ulpian said, the bailor did not have the opportunity to choose his bail recipient based on the least risk to himself. As in the case of a loan agreement, the bailor's demand for the return of the thing followed from storage, protected by a direct action of the actio depositi direkta. The depositor who did not return the thing was subjected to dishonor. If, however, the bailor, when transferring the thing for storage, guiltyly caused losses to the receiver of the deposit, who did not know about the defects of the thing, then the latter was sued for the recovery of damages from the bailor (actio depositi contraria). There were the following additional storage agreement options: - depositum irregulare ("unusual luggage") arose in the case of luggage of things defined by generic characteristics. In this case, the debtor was obliged to compensate for any damage that was caused to things during storage (decrease in the amount of grain, oil, etc.). If unsealed money was transferred for storage, then it became the property of the depositor (principle of mixing things), and the depositor acquired the right to claim the sum of money with interest. This type of storage was very similar to a loan agreement; - "woeful luggage" (depositum miserabile) arose in non-standard circumstances, during natural disasters, when the depositor was forced to resort to the help of the custodian due to difficult conditions and the inability to store the thing on his own. If the depositor caused any damage to things, then he compensated for the losses from careless storage in a double amount (whereas in a normal situation - in a single amount). If the keeper refused to return the thing received in a difficult situation, then the thing was claimed through a lawsuit and he was declared dishonored. - "sequestration" (sequestrum) is a special type of luggage, when several persons together deposited a thing at once, and the thing was returned to one of these persons, depending on the circumstances. "In the proper sense, as a sequester, a thing is transferred for storage, transferred by several persons jointly and severally for storage and return on certain conditions" (D. 16. 3. 6). Sequestration was used in disputes over ownership, if the seller and the buyer wanted to protect themselves from deception on the part of each other, then the thing could be deposited until the transfer of money. If the property was transferred for a long period, then the custodian could receive the right not only to store, but also to manage this property. 7.4. consensual contracts The concept of consensual contracts. A consensual agreement is a voluntary agreement of the parties in the same case that does not require any formalities. Consensual treaties appeared later than the others and were established around the XNUMXrd century. BC e. By the order of conclusion, they were even more simple than real contracts. Here the matter was exhausted by the agreement reached by the parties alone, and if the transfer of the thing was carried out, it was not for the purpose of concluding, but in pursuance of an already concluded agreement. Thus, consensual contracts, like real ones, could not be abstract and, in their reality, depended on certain grounds. Consensual agreements could be concluded directly by the parties or through intermediaries: "There is no doubt that we can conclude a partnership agreement by transferring things, and by words, and through a messenger" (D. 17. 2. 4). The subject of the contract was to be things that are goods and are in commercial circulation (res in commercio). If the consensual contract was not executed, then claims were provided: actio empti to protect the buyer and actio venditi to protect the seller. Roman law distinguished four types of consensual contracts: purchase and sale, hiring, commission, partnership. All of them were concluded through a simple agreement of the parties on the most important points of the contract, in whatever external form this agreement manifested itself. Purchase and sale. Purchase and sale (emptio-vendito) is a bilateral contract under which the seller (venditor) assumes the obligation to transfer the thing (res) or goods (merx) to the possession and domination of the buyer (emptor), and the buyer assumes the obligation to pay for this conditional price in money (pretium). Two "good faith" claims arise from such an agreement. By this action, he may demand payment of the promised price and compensation for expenses necessary or useful to the buyer, made by the seller on the thing after the conclusion of the contract, but before the transfer of the thing to the buyer. The buyer takes action emti against the seller. By this action he demands: - transfer of a thing with all its fruits and increments; - liability for all damage caused by the seller to the item, even if only slight negligence in handling it; - compensation for all losses if the seller turns out to be a non-owner of the thing, and therefore the thing sold by him to the buyer was then taken from the buyer by its real owner. Over time, the responsibility of the seller began to be recognized for those shortcomings of the thing about which he did not know and could not know. If the seller failed to comply with the obligation to guarantee the quality of the thing, the buyer could demand: - "restoration to its original position", i.e., termination of the contract and return of money to him; this claim could be brought within six months from the date of the transaction. Restoration to the original position was required by means of an action actio redhibitoria; - reduction of the purchase price in accordance with the revealed shortcomings of the goods - this claim could be brought within a year. The price reduction was claimed by way of claims for a reduction in the purchase price due to the discovery of defects in the thing or a simple claim for a reduction in the purchase price. The seller was obliged to ensure that he had the right to sell the thing, was its owner or representative of the owner (ie, in any case, the seller was responsible for ensuring that the thing was rightfully provided to the buyer). If the thing turned out to be not his own, the buyer, against whom the declared owner brought a vindication claim, in turn, had the right to demand from the seller double compensation for the damage he had suffered (the cost of the thing). The buyer's obligations were: - pay for the goods in the appointed amount of money and on time. It is interesting that the buyer, having paid for the goods, was not obliged to take it from the seller - this did not cancel the purchase and sale, and the risk of accidental loss of the thing was assigned to the buyer, since legally he was already the owner of the thing, despite the fact that he had not yet become its actual owner. "With the entry into force of the purchase, the risk is borne by the buyer. If in relation to what is sold it is clear what it is, what it is and how much, and there is a price, and the sale is perfect ..." (D. 18. 6. 8); - the buyer was obliged to inspect the thing before buying to identify its shortcomings, as well as to make sure of its quality. If the thing was not examined by the buyer at his will, then it was considered as if examined in case of further disagreements. It should be noted that the purchase and sale did not arise if the price of the commodity was expressed not in money, but in another thing. The content of the contract and the obligations of the parties were similar to the purchase and sale, but both parties were obliged to guarantee the quality of things and guarantee the ownership of the thing, since both of them transferred things. Such a transaction was recognized by law as a consensual contract of "good conscience" (bonafidei) or an unnamed contract. The exchange (permutatio) consisted in the fact that the parties to the contract did not exchange according to the “commodity-money” scheme, but “commodity-commodity”; there was an exchange of ownership of two different things. If the agreement was established, and the transfer of not a single thing was carried out, then the contract was recognized as void, since for the validity of the exchange it was necessary that at least one of the parties fulfilled its obligation. Hiring contract. This contract consists in the fact that one person undertakes to provide another with his things or his labor, and the other person (counterparty) undertakes to pay remuneration for this. There are three types of employment. 1. Renting a thing (locatio-conductio rei) is the hiring by one person from another person of one thing or several certain things for temporary use for a certain period and for a certain fee. The subject of rent could be movable things that do not belong to the number of consumed, as well as immovable things. It was possible to rent both one's own thing and a thing belonging to a third party. In addition to material things, non-material things, such as usufruct, could also be rented out. Along with the thing, its accessories were transferred. The term was not a mandatory element of the contract of employment. The contract of employment was considered valid from the moment of the agreement, and the obligations of the parties were also determined from the moment of the agreement: even if the work performed perishes or does not take place without the fault of the contractor, the employer is obliged to pay for it in full in accordance with the original agreement. The duty of the lessor was to ensure the unhindered use of the thing: “The lessee is given an actio conducti. He receives this claim almost only on the following grounds: for example, if it turns out to be impossible for him to use (perhaps because he is not given possession of the entire plot or part of it, or if the house, stall, or the place where he needs to place a flock is not repaired); the same claim can be used by the tenant if he is not provided with what is specifically provided for in the content of the contract "(D. 19. 2. 15. 1 ). Unlike a loan agreement, the lease of things does not oblige the lessor to reimburse the costs of maintaining the thing, since this is a paid contract and the maintenance of the thing in a normal state lies with the lessee. On the other hand, the tenant was obliged to use the thing properly and be responsible for its safety. The tenant of the thing was not responsible for the immutability of the physical state of the thing: the meaning of the contract was to use, which presupposed the possibility of wear and tear. The improvement of a thing, not caused by necessity, was not paid, the deterioration was regarded in proportion to this change in the thing. In the process of hiring, it was allowed to change the terms of employment in favor of the employer at his unilateral request; change in favor of the landlord (or hired) was not allowed. The lessee could sublease the rented thing, unless the lessor stipulated that he forbids doing so. The responsibility for the thing remains with the tenant, he is responsible for its safety and return to the lessor. The subtenant, in turn, is responsible to the tenant. The lease term was not a mandatory element of the contract; the parties could withdraw from the contract at any time. If the contract was terminated by one of the parties, she had to take into account the opinion of the counterparty and not cause him great harm by this termination. When establishing the term of the contract, if after its expiration neither of the parties showed a desire to actually terminate the employment relationship, then the contract was considered extended. 2. A work contract (locatio-conductio operis) is a contract under which one party (contractor - locator) undertakes to perform certain work (opus) on behalf of the other party (employer, customer - conductor), and the customer undertakes to pay for the work performed. "The expression" locatio-conductio operis ", according to Labeon, means such work, which the Greeks designate by the term" finished work "..." (D. 50. 16. 5. 1). Thus, the contract was concluded specifically for the performance of a certain work, and the goal was precisely to obtain the finished result of the work. The hired person to perform a certain job had to do exactly what was indicated in the contract of employment. The work could consist in cultivating the land, creating some thing, etc. The main condition that had to be achieved was the final definite result of the work (for example, a finished product). The thing could be made both from the material of the customer, and from the contractor's own material. In the case of the manufacture of a product from the material of the contractor, the contract turned out to be similar to the contract of sale; this controversial point was worked out by Roman lawyers, and some believed that such a contract should really be equated with the purchase of a finished product. The contract was concluded for a fixed period (performing a certain work), but if no period was set, then it was considered that the work should be completed within a reasonable time, which is usually necessary for the performance of such work. Payment was usually made at the time of transfer of the finished product to the customer. The remuneration usually amounted to an agreed amount of money, but could also be received in any way, that is, in kind. In the event of the destruction of the thing before the transfer to the customer, the responsibility lies with the contractor, but if he has already transferred the thing - on the customer. 3. A service contract (locatio-conductio operarum) is an agreement between an employee and an employer, under which the employee provides labor and the employer uses it by paying for working time. It was a fixed term contract. Like other lease agreements, it was automatically renewed if the parties did not show a desire to terminate it after the expiration of the contract. Payment under the contract could be made both after the work was completed, and at certain intervals (for example, daily). The hired worker was not responsible for downtime, if the employer could not use the labor force effectively, then the employer had to pay the employee his downtime: "The hired worker must receive wage payment for the entire time of employment, if the circumstance that he did not have to provide services did not depend on him "(D. 19. 2. 38). If the hired person for personal reasons (illness, other circumstances) could not perform the work for which he was hired, then he did not receive payment for the missed time. The employee could defend his rights through the actio locati, and the employer through the actio conducti. Such an agreement was not widely used, since in Rome almost every free person had his own slaves at his disposal, and there was no point in ordering work from outsiders. Partnership agreement. A partnership (societas) is an agreement under which two or more persons combine property contributions or personal activities (or both) to achieve a common economic goal that does not contradict law and morality. The main element of the partnership agreement was the achievement of a common economic goal, which the comrades were striving for. Depending on the goal pursued by the members of the partnership, these partnerships were of the following types: 1) partnerships for joint residence and activity (societas omnium bonorum). This type assumed the establishment of the right of common ownership of all persons participating in the partnership to the present, future and accidentally acquired property; 2) industrial, or profitable, partnerships (socie tas guaestus). Members of such partnerships combined property intended for production activities, as well as all acquisitions received in the course of the relevant activity (except for accidental receipts); 3) industrial, or partnerships of some business (societas negotiationis). These partnerships were established when the members of the partnership contributed part of their property necessary for engaging in a certain type of economic activity (for example, delivery of goods, construction of residential facilities). With this form of activity, the property necessary to achieve the production goal was combined, as well as everything received in the course of the activity; 4) industrial, or partnerships of one business (societas unius rei). They were created for the implementation of a single event, for example, the construction of a separate facility. The agreement of the comrades established the allocation of a part of the property necessary for the performance of work in order to obtain general income. The partnership was not an independent subject of law, that is, a legal entity. The subjects of law were comrades. Each of them acted on his own behalf, had rights and had duties. All types of partnership agreement included an agreement on the contributions of partners. Contributions could be monetary, property or in the form of services (professional skills). Equality of contributions was not necessary. In the absence of a reference in the contract to the amount of contributions, they were assumed to be equal. One of the important parts of the agreement was the participation of comrades in income and expenses. If there was no agreement on income and expenses in the contract, then they were distributed in equal shares. It was possible to conclude a contract on terms whereby one of the participants receives a larger share of the income and bears a smaller share of the costs. The other has a smaller part of the income, but bears a large share of the costs. At the same time, Roman law recognized that a partnership agreement was unacceptable, by virtue of which one of the participants participates only in receiving income and does not bear any expenses. The risk of accidental loss of things - contributions under the partnership agreement fell on all parties to the agreement: in relation to individual things - from the moment the contract was concluded, in relation to things determined by generic characteristics - from the moment they were transferred. The risk of accidental loss of things that come in the conduct of business by the partnership was also borne by all the comrades. The partnership agreement gave rise to mutual rights and obligations. The duties of the comrades were as follows: - contribution to the partnership of all property (for a partnership for joint residence and activity) or part of the property (for a partnership of another type); - masterful and caring participation in the management and production activities of the partnership. A comrade was responsible to other comrades for any degree of guilt, including slight negligence. Negligence was determined by such a criterion as the attitude towards one's own affairs. Guy points out that a comrade should show such care as he usually shows to his affairs. Therefore, if a comrade treats a business with the same carelessness with which he conducts his own affairs, he did not bear responsibility; - providing at the disposal of other comrades of their income; - participation in expenses. The partners had the following rights: - demand from others to contribute contractual property to the partnership; - participate in the management and economic activities of the partnership; - receive income and reimburse the expenses of the partnership. In order to exercise their rights, each of the comrades had an action against other comrades, accompanied by dishonor for the person awarded under this action. Partnership agreements could be permanent, fixed-term and conditional. Fixed-term and conditional contracts terminated upon expiration or upon fulfillment of conditions. All partnership agreements are terminated: - with the death of one of the partners, if the remaining parties to the agreement have not concluded a new partnership agreement; - as a result of the destruction of all property of the partnership; - due to disparate actions of comrades; - by court decision; - by agreement of all participants of the partnership; - in case of unilateral refusal of a partner from the contract. A unilateral withdrawal from a partner's contract is unacceptable if it is connected with the desire to receive any income or if it will cause unforeseen damage to other partners. If the damage cannot be avoided, then the terminating contract was not entitled to participate in the division of the income of the partnership, but was obliged to bear the full weight of the damage caused by its action. Order agreement. The contract of agency consists in the fact that the mandate holder was obliged to the client free of charge (as opposed to the contract of employment) to fulfill any order of the client. The Mandant could demand from the Mandatory the fulfillment of the assignment with all the diligence of a good owner, i.e., answering for losses that would occur even from his slight negligence; moreover, the mandate holder was obliged to give the mandate all that he acquired from the performance of the mandate. The subject of the contract was both legal actions and any services. Such actions and services should not be illegal (for example, an order to commit a theft). Most often, the contract of agency was concluded for the management of the property of the principal, the performance of strictly defined one-time actions, for example, to lend to a third party, in this case the principal usually acted as a guarantor. The term of the contract of agency could be definite or indefinite. If the term was not determined, then the principal had the right to cancel the order, and the attorney - to refuse to execute the order at any time. The obligation of the attorney was to fulfill the assignment given to him completely and in accordance with the instructions of the principal. In some cases, the attorney was given the right to deviate in the interests of the principal from his instructions. The attorney could execute the order both personally and by asking a third person about it: "Susceptum (mandatum) consummandum ... est, ut aut per semet ipsum aut per ahum eandem rent mandator exsequatur" - "The order accepted must be carried out ... so as to personally or through another perform the assigned work "(J. 3. 26. 11). The attorney was obliged to transfer to the principal the results of the execution, if any, and report to him. The trustee compensated the attorney for the expenses incurred and provided the funds necessary for the execution of the order. Even the damage suffered by the attorney due to the fault of the principal was compensated. The contract of assignment was terminated in the following cases: - execution of instructions by attorneys; - refusal of the attorney from the execution of the contract; - death of one of the parties (principal or attorney). To protect the rights of both the principal and the attorney, an action actio mandati was applied. For the trustee, this action was called actio mandati directa, and for the attorney - actio mandati contraria. If, by actio mandati directa, the attorney was found guilty, he was declared dishonored. Nameless contracts. Having formed an independent group of contracts, nameless contracts were used in a variety of specific situations. The most significant are three of their types: exchange, precarium and the so-called appraisal contract. 1. Exchange - an agreement that mediated the exchange of a thing not for money, but for another thing. 2. The precarious legally fixed the transfer of a thing by one person for the free use of another, who is obliged to return it at the first request of the transferor. 3. The valuation agreement was applied to a large trader with a small one. The first gave the second thing with the designation of its price. If the second did not manage to sell the thing at the specified price, it was subject to return; if the sale took place at a precisely stipulated price, all the proceeds from the sale were transferred to the owner; if the sale of the thing was carried out at a higher price, the seller kept the difference, transferring to the owner of the sold thing a sum of money equal to a certain price. Nameless contracts arose when one person transferred the ownership of another thing or performed an action so that the other person provided another thing or performed some action. An unnamed contract became legally effective from the moment one party performed an action or transferred a thing. The party that performed the obligation initially began to file a conditional claim for the recovery of a thing transferred to the other party. Later, the party that performed the obligation brought a contractual action (actio in factum) to compel the other party to perform the obligation. In Justinian's codification, civil and praetorian claims were combined to protect claims arising from nameless contracts. 7.5. pacts As a general rule, a bare agreement did not create an obligation. Considering, however, the urgent needs of economic turnover, the Romans over time granted enforceable protection to individual agreements, although they were not covered by the recognized list of concessional contracts. Such agreements, having received the name of protected pacts, acquired the legal force of one of the grounds for the emergence of obligations of a contractual nature. It is customary to distinguish between several main types of protected pacts used in the classical period - additional and praetor ones. Additional pacts were agreements by which some new condition was added to an agreement already concluded between the parties. The concluded agreement was based on legal protection only when it facilitated the position of the debtor, reducing the scope of the latter's obligations. Praetor pacts (oath agreement, agreement on the establishment of monetary debt, etc.). Some binding contracts did not receive force under civil law, but were provided with legal protection in the Praetor Edict. In all cases, in fact, the praetor was not so much concerned with giving binding force to the agreement that had been made, as with the repression of an act that seemed to him dishonest and disapproving. The Praetor Pacts were represented by three categories of agreements: constitutum debiti, receptum, pactum iurisiurandi. The agreement, according to which the debtor assumed the obligation to pay an already existing debt of his own or someone else's (constitutum debiti), consisted in the fact that confirming his own debt, the debtor asked for a delay, with which the plaintiff agreed. If subsequently the debt was not returned, then on the basis of the agreement it was recovered from the debtor. In addition, half of the amount of the debt was additionally collected from him in the form of a fine. If initially this category of agreement concerned only monetary debt, then in the period of Justinian it began to apply to other things. At the same time, concluding an agreement, it was possible to change the subject of debt (instead of one thing, return another). As for the obligation to pay someone else's debt, it was nothing more than a surety. Acceptance (receptum) included three types of pacts: a) an agreement on the performance of the role of arbitrator; b) an agreement with the owners of ships, owners of hotels and inns on the safety of things of travelers; c) a banker's agreement to pay a debt for a client to a third party. The agreement on the performance of the role of arbitrator was concluded between the arbitrator and the disputing parties, who reached an agreement to refer the dispute to the arbitrator. This agreement placed on the arbitrator the duty to consider the dispute. The arbitrator was fined for avoiding the consideration of the dispute without good reason. The agreement with the owners of the ships, owners of hotels and inns on the safety of the belongings of the passers-by came down to the fact that the noted persons assumed responsibility for the safety of the property of the clients. The responsibility of these persons came even in the absence of guilt. It was only because of an accidental calamity that responsibility did not arise. To protect the victims, the praetor used the persecutory claim. A banker's agreement to pay a debt for a client to a third party was an informal agreement between a banker (a money changer) and a client serving as surety. In this case, the banker acted as the guarantor of the client to a third party. The mechanism of this agreement was as follows: if the banker's client did not have the funds to pay, he offered a third party to collect a debt from the banker. If the banker refused to pay, the client received an actio recepticia against him. Pactum iurisiurandi is a voluntary agreement by virtue of which the plaintiff promises not to recover from the debtor under the obligation if the debtor swears that he does not owe anything. Likewise, the debtor promises to fulfill the creditor's claim if the latter takes an oath that his claim is valid and valid. This agreement enjoyed praetor protection if the party would not continue to comply with the oath given by it. Imperial pacts originated in the late imperial period and were informal agreements from which obligations flowed, protected by legal means emanating from the emperor. Such a means was a conditional claim. The most famous imperial acts are: compromissum, pactum dotis, pactum donationis. Compromissum - an agreement in accordance with which the two parties to the decision of any dispute passed to the arbitrator chosen by him and were obliged to obey the decision. The execution of this agreement was ensured by the fact that the parties transferred the disputed thing or the amount of money to the arbitrator. The latter had to transfer it to the party in whose favor the dispute would be resolved. For failure to comply with the decision of the arbitrator, a fine was collected from the perpetrator. Pactum dotis is an informal agreement between a person entering into marriage and a person promising to give him a dowry. On the basis of this agreement, the marrying (husband) filed a conditional claim, according to which he had the right to demand payment of the dowry. Pactum donationis - an informal donation agreement, according to which one party (the donor) provided the other party (the donee) with a thing or right of claim in order to show generosity towards the donee. In the ancient and classical periods, a gift acquired legal force only when it was clothed in the form of a stipulation. The informal deed of gift had no legal force. The law limited the amount of donations, with the exception of donations in favor of the closest relatives. Magistrates were forbidden to accept gifts from the population of the provinces; gifts between spouses were prohibited. True, such donations acquired legal force if the donor died before the cancellation of the gift. In the imperial era, donation was recognized as a source of obligation as pactum donationis. After the conclusion of the donation agreement, the donee had the right to demand the transfer of the subject of the contract. The donor could refuse to transfer things, money, etc., if this entailed a threat to his existence or the existence of his family. In addition, the reasons for the cancellation of the donation could be the ingratitude of the donee; refusal of the donee from the instructions of the donor given to the latter at the time of donation; birth at the donor after the promise or delivery of the gift of the child. The heirs of the donor also had the right to demand the cancellation of the gift, if the gift reduced their inheritance part of the property. 7.6. Obligations as if from contracts Obligations "as if from a contract" arose if agreements were established between the parties that resembled contractual obligations, but the parties did not conclude any of the above agreements. The main types of obligations from such "as if contracts" were the conduct of other people's affairs without instructions (negotiorum gestio) and obligations from unjust enrichment. Conducting other people's affairs without an order is one of the types of quasi-agreement, which consists in the fact that someone takes on the conduct of other people's affairs without any order and from their owner. From this arise mutual obligations between the owner of the affairs and the person who undertook their conduct. The owner may demand that the gestor (manager of business), having taken up his affairs, conduct them with the care of a good owner and be responsible for any negligence on his part, and the gestor may demand from the owner of the business (dominus), in turn, reimbursement of all those costs. which he undertook, guided by the rightly understood interests of the owner of the case, even if these expenses did not lead to the desired results without guilt on the part of the gestor. These mutual obligations arise in the complete absence of prior agreement between the owner of the case and the gestor and therefore do not belong to the obligations of the contract; but they are similar to those obligations that arise from the contract of agency. Thus, the necessary conditions for the emergence of obligations were: - the business carried out by the guester must be someone else's, that is, it must be a disposal not of one's own, but of someone else's rights (repair of someone else's house); - the implementation by a person of any actions in favor of another person must take place on the performer's own initiative, without prior agreement with the owner of the case. At the same time, the motives that guided the person conducting someone else's business did not matter: whether it was a public duty, moral or personal considerations; - actions performed by the guester must be carried out for the benefit of the opposite side (the owner of the case). These actions extended to the property and rights of persons who were absent from the location of the property or who, due to certain obstacles, were unable to take care of themselves. Claims from unjust enrichment (condictiones sice causa) are the so-called conditions, which have as their subject the return of unjust enrichment at someone else's expense. Unjust enrichment is obtained if some value passes from the property of one person to the property of another person, and then it turns out that there is no sufficient legal basis for the recipient to retain this value. Under such conditions, enrichment at someone else's expense must be returned, for which the victim may present one of the following abstract indications to the enriched person, depending on the circumstances: 1) payment of a non-existent debt (condictio indebit): in the mistaken belief that I owe you, I pay you; Now I can claim back what I paid. If the enrichment of a person was due to his unfair actions, this person was obliged to fully compensate for the damage. However, if a mistake led to enrichment, then the enriched person was only obliged to return the enrichment; 2) if something is given in anticipation of a certain permitted result in the future, and then this result does not occur (condictio causa data causa non secuta). The recipient is forced to return the unjust enrichment of this condition; 3) something is transferred for a purpose prohibited by law or for a purpose contrary to morality (condictio ob injustam or ob turpem causam). The subject of such claims was the return of stolen property, and in the event of accidental loss, compensation for the highest price of the thing during the time between theft and the award. The guilty person returned not only the fruits received, but also everything that the owner could receive if he owned the thing; 4) other cases that could not be brought under the listed conditions remained under the general name condictiones sice causa (for example, the case of a loan from a minor: the loan as a contract is invalid, but the person who took it nevertheless enriched himself (sice causa)). 7.7. Obligations from torts and as if from torts A tort (delictum) is understood to mean any offense that causes harm to an individual, his family or property, any violation of a right or prohibition. As a result of a tort, new rights and new legal obligations arise (obligationes ex delicto). The main torts of civil law were: theft (furtum), insult (iniuria), damage or destruction of another's property (damnum iniuria datum). The fundamental position is that in the ancient period torts were of a private law nature. This means that the perpetrator is pursued not by the state, not by the authorities, but by the victim himself. The victim is sued for offenses (actiones ex delicto). In 287 BC. e. the law of Aquilia established responsibility for the destruction and damage of other people's things. Moreover, it did not matter in what way the thing was destroyed or damaged: spoiled, burned, destroyed, broken, torn, smashed, spilled. According to this law, if someone illegally killed someone else's slave or someone else's four-legged animal (horse, bull, sheep, mule, donkey), then he was obliged to pay the owner the highest price that the thing had during the last year. And if someone only wounded someone else's slave, or animal, or destroyed any other thing, then he is obliged to compensate the owner for the highest price that such a thing had during the last month. Liability under this law occurred both in the case of intentional actions (dolus), and in the case of simple negligence, that is, slight negligence (culpa levis) on the part of the tortfeasor. This meant damage to a bodily thing, committed by the direct physical impact of the perpetrator on it. During the late republic and empire, the obligations arising from wrongdoing underwent a series of changes. If, according to civil law, as it is clear from the Laws of the XII tables, any harm, regardless of whether it was done through fault or without fault, should have entailed liability, now the concept of intent (dolus) comes to the fore, i.e. Not every, but only the guilty infliction of damage, entails the obligation to compensate. Responsibility also arises in case of negligence (culpa). The boundaries between public (delicta publica) and private (delicta privata) torts are changing. Gradually, however, some private torts turn into public ones. Former categories (theft, insult, damage, deceit) began to spread to new relationships. In other words, there are new types of torts, and therefore, new types of claims. The basis of liability is as follows: liability arose if a corresponding claim was established. No lawsuit - no tort. The main consequence of a tort is a monetary fine (poena) imposed on the offender. They begin to look at the fine as a means of compensating for property damage. The amount of the fine was determined by the size of the loss suffered by the victim. Then fines and damages began to be combined. Obligations from torts, as a general rule, did not pass to heirs. The changes affected such delicts as theft or theft, insult, damage to someone else's property. The concept of theft (furtum) extends to new cases - it becomes not only a private, but also a public delict. Liability for theft is increasing. Lawyers are beginning to look at it as a conscious action. Their definition of theft is: "The malicious taking of a thing for the purpose of gaining an advantage. Taking either the thing itself, or the use of the thing, or the possession of the thing." The theft of a thing is called furtum rei. Illegal use of someone else's thing - furtum usus. Theft of possession - furtum possessions - the owner steals his thing from the person to whom it was transferred as collateral. Responsibility for theft takes on a new look. From the XNUMXrd century BC e. the thief is not returned to the victim, but the monetary penalty increases, amounting in some cases to a quadruple value of the thing. However, corporal punishment of the thief was preserved. The punishment for theft entailed the dishonor (infamia) of the guilty person. The victim had the right to claim the thing or its value from the thief or his heirs. When theft became a public crime during the imperial period, the victim could, instead of filing a lawsuit against the thief, initiate criminal prosecution against him. Robbery (rapina) adjoins theft. In the 76st century BC e., more precisely in XNUMX BC. e., robbery is allocated to a special category of torts. There are cases when theft is combined with violence. This also includes: theft in case of fire, shipwreck, damage to property by several persons. Responsibility in case of robbery - compensation for four times the amount of damage caused or four times the value of the stolen thing. In addition, the guilty person is subjected to dishonor. For these sanctions to apply, a claim must be filed within a year. During the imperial period, robbery was unconditionally considered a public delict. Resentment (iniuria). This includes various assaults on a person: a) bodily injury; b) insult by word or deed (verbis aut re). Sanctions are also provided for the public utterance of offensive words by a group of persons (convicium), and later - offensive letters (famosi libelli). If the offense was caused by an insane person or a minor, then they were not subject to liability. But if someone offended them, then the offender was responsible. The husband had the right to initiate prosecution for an offense inflicted on his wife; father - for offending his daughter. If an offense was inflicted on a slave, then it was believed that his master was offended. An offense caused with the consent of the victim did not entail liability. Serious insults declared public were separated into a separate group: insult inflicted on a magistrate, parents, patron; inflicted publicly; expressed in the infliction of wounds. In the 300st century BC e. beatings and breaking into someone else's home became criminal offenses. During the late empire, the victim of an offense could in all cases initiate criminal prosecution. But the private law method of persecution persisted. This meant that the victim could act as lawyers said, civiliter or criminaliter. The former fixed sizes of fines imposed in case of offense (25 or XNUMX asses) disappear. At the end of the republic, a rule was established that in the event of a serious offense, the amount of the fine in each individual case was established by the praetor, who took into account the specific features of the case. The amount of the fine could be influenced, for example, by the severity of the offense, the social status of the offended, and other features. Resentment also entailed dishonor. The application of the law of Aquilia by the praetor and jurists expanded. Under it began to sum up all kinds of damage caused to someone else's property (damnum iniuria datum). According to this law, for example, the one who deprived another's slave of freedom, as a result of which the slave died of hunger, answered; one who secretly damaged other people's trees, who inflicted wounds on a free person. Liability under the law of Aquilia began to occur not only in cases of intentional infliction of harm, but also in case of any negligence (culpa), including the lightest fault (culpa levissima). The old rule was preserved: if the tortfeasor denied his guilt, then he answered in double the amount against the damage caused. Violence and threats (metus). In the XNUMXst century BC e. Praetor Octavius established the rule that a treaty made under the influence of violence and fear is not recognized as valid. The victim has the right to recover four times the value of the harm caused to him, in the event that the person who committed violence or resorted to threats does not immediately return the thing that came to him as a result of coercion. Deception (dolus malus). This delict was established in 66 BC. e. praetor Gallus Aquilius, a famous jurist. In the broad sense of the word, "dolus" is understood to mean any malicious action, i.e., malicious intent in the event of failure to fulfill an obligation. This means that the person, by his conscious actions, misled the other party, as a result of which the latter suffered damage. This refers to damage to property. The claim on the basis of deceit (actio doli) was intended to compensate for the damages caused in a single amount (though only if the person who caused the damage does not voluntarily make amends for the harm caused to him and only if the victim has no other claim against the defendant) . If an agreement is concluded as a result of fraud, then as a result of a claim for doli, this agreement is declared invalid. If the deceiver brings an action arising from the concluded contract, then the victim of the deceit may object to the claim by referring to the fact that he was deceived (exceptio doli). Condemnation for deceit entailed dishonor. Damage to creditors (fraus creditorum). It happened that the debtor, against whom the judgment was held, alienated his property before transferring it to creditors. Therefore, the praetor established that if the debtor alienated his property to the detriment of creditors, then they could demand that the debtor’s action that caused them damage be recognized as invalid and return to the old position (restitutio in integrum). For example, someone released slaves into the wild, which reduced the property of the releaser, and this caused damage to creditors. Consequently, a person who had already received freedom could be returned to a slave state and sold to satisfy the claims of creditors. A claim could be brought by creditors to the debtor and his accomplices - outsiders to whom the debtor transferred property free of charge (fictitious transfer). Noxal claims (actiones noxales). The head of the family (pater familias) had the right to extradite to the victim persons subject to him who had caused the damage. But due to the fact that the sons became more or less independent persons, the praetor ordered the victim, to whom the son was extradited, to release him after working out the amount of the fine, which would be due according to the general rules for the commission of an action by the son if the son himself answered. Disgrace (infamia). Some torts, as noted earlier, entailed dishonor. For the perpetrator of harm, dishonor had as its consequence a limitation of legal capacity. Such a restriction came either by virtue of the law, or by order of a higher magistrate. After the imposition of dishonor could follow: expulsion from the senate, loss of the right to be elected to the magistrate. The dishonor imposed by the censor for disapproving behavior entailed the same consequences. In less serious cases, when dishonor was imposed by the praetor, the guilty person was forbidden to conduct other people's legal affairs and appoint a judicial representative. During the period of the empire, the "infamous" could not hold certain positions. Obligations could also arise due to actions committed without intent, through negligence. In this case, one speaks of "obligations as if from offenses" (obligationes quasi ex dilicto). Here the person is liable by law or edict. The one who caused the harm through negligence is responsible. It means financial responsibility. These include: a) the responsibility of the judge to the litigants for the negligent performance of his duties, for the wrong decision, made, for example, due to inexperience, for an error in the conduct of the process. The size of the penalty could even reach the full price of the dispute; b) responsibility for what is thrown away and poured out (actio de effusis et deiectis). If something is thrown or poured out of the window of a room, dwelling, apartment into a place where the public walks or passes, onto a street or square, then the owner of the room, house, even if he was not direct, is responsible for the harm caused to passers-by. the culprit (damage could be caused by the inhabitants of the house, i.e. slaves, children, guests). Damage could be caused to the health of a free person or even lead to his death. In the latter case, the fine on the claim of any citizen could reach up to 50 sesterces. If a free person is injured, then according to the Digests "the judge calculates the payment to the doctor and other expenses caused by the treatment, as well as the earnings that the victim lost, but no assessment is made of scars from wounds and disfigurement, since the free body is not subject to assessment." Responsibility for what was placed and hung (actio de posititis et suspensis) meant that if something was placed or hung near the house so that it could fall, for example, a sign, and cause damage to someone, then anyone could sue the owner, although the thing would not fall. Consequently, the responsibility came for the very possibility of causing damage. A fine of up to 10 sesterces imposed on this claim went in favor of the plaintiff; c) close to this quasi-delict was the keeping of wild animals in a place where people could be. If an animal caused the death of a freeman, then a fine of up to 200 thousand sesterces was imposed. Causing bodily injury entailed compensation for all damages. Causing other damage entailed the recovery of damages in double size; d) the responsibility of the owners of ships (nautae), hotels (caupones), inns (stabularh). If something is stolen from a traveler on a ship, in a hotel, in an inn, then they answer: the captain of the ship (ship owner), the owner of the hotel, the owner of the inn. Responsibility came for damage to things. All these persons are liable in double measure for the deceit or theft committed by their servants in respect of the passers-by. This responsibility was based on the consideration that the master should be prudent in the choice of his servants (culpa in eligendo). 8 Theme Right of Inheritance 8.1. The main institutions of Roman inheritance law The concept and types of inheritance. Inheritance - the transfer of property, rights and obligations of the owner in connection with his death to one or more other persons by law or by will. The inheritance consisted of the property rights of the testator, and family and personal rights were not inherited. "Hereditas nihil aliud est, quam successio in universum jus quod defunctus habueril" - "Inheritance is nothing but continuity in the totality of the rights that the deceased had" (D. 50. 17. 62). This phrase expresses the idea of universal succession, but such a succession did not arise immediately, it was worked out in a long process of historical development. Inheritance arose after the emergence of the state and developed in parallel with the development of property rights, when property, rights and obligations began to accumulate in the hands of individual heads of the family, which had to be transferred to someone after their death. Types of inheritance: - inheritance by will; - Inheritance by law. Inheritance by will depended on the will of the testator, who had the right to dispose of all his property. The right to leave a will was recognized for legally capable and capable Roman citizens (persons sui iuris). The testators could not be persons in "alien "power", legal entities, Latins, slaves, privately owned. If the will did not mention the next of kin of the deceased, then they could petition for the annulment of the will and the redistribution of property. Roman inheritance law did not allow inheritance after the same person on two grounds: by will and by law. This means that it is not possible for part of the property to be bequeathed and the other to be legal: "Nemo pro parte testatus, pro parte intestatus decedere potest" - "Inheritance by will is incompatible with inheritance by law in the property of the same person" (D.50). In ancient times, there was only inheritance by law. After the death of the householder, all his property, rights and obligations were evenly divided among his agnatic relatives. Subsequently, already with the emergence of the Laws of the XII tables, inheritance was expanded, and not only agnatic, but also cognatic relatives (even already separated families) could inherit. The inheritance was opened immediately after the death of the testator, but the property at that moment had not yet passed to the heirs. After the heir expresses his will to accept the inheritance, only then does the process of entering into the inheritance take place. Therefore, they talk about two stages of receiving an inheritance: opening an inheritance and entering into an inheritance. The opening of the inheritance occurs at the time of the death of the testator (except in the case of a conditional will, in which the inheritance was opened after the occurrence or non-occurrence of the conditional event), however, the rights and obligations of the deceased pass to the heirs only after entering into the inheritance (expression of consent by the heir to accept the inheritance). Since ancient times, the concept of a mandatory share in the inheritance has appeared, that is, there were categories of relatives who inherited regardless of the will of the testator. Development of the institution of inheritance. The development of the institution of inheritance in Roman law went through the following stages: 1) civil inheritance, i.e. inheritance according to ancient civil law. According to the Laws of the XII tables, inheritance by law and inheritance by will were already distinguished. The laws of the XII tables also established the order of successors; 2) inheritance by praetor law became widespread after the appearance of private property. Civil inheritance was not abolished, but, for example, the procedure for making a will was simplified, cognatic relatives were granted the right to own property (only the right to own property, and only if the civil heir had no claims). Later, praetors began to recognize blood relatives as "more suitable" heirs, this was influenced by the development of bonitary (praetor) property; 3) inheritance under imperial legislation before Justinian generalized the praetor's legislation on inheritance. In the imperial period, the mother of the deceased stood in line to receive the inheritance before the agnates; 4) inheritance according to the novels of Justinian again changed the order of inheritance by law and finally approved the principles of inheritance by blood. 8.2. testamentary succession The concept of inheritance by will. Will - a unilateral formal civil law order of a person in the event of his death, containing the appointment of an heir. A will is a unilateral transaction in which the will of the testator was expressed to transfer property to other persons after his death. For the validity of the will, a number of conditions were required. First of all, it was necessary to observe the form of the will. According to civil law, the will of the testator must be expressed either in the assembly of the people, or by means of the rite of manipulation ("by means of copper and scales"), or before the formation of the army (the testament of a warrior before the battle). In the later period of the empire, new forms of testament began to be used, both public and private. Public wills were reduced to entering the will in the protocol of the court, or in the protocol of the magistrate, or to the transfer of a written will to the imperial office. Private wills were drawn up in the presence of seven witnesses. They could be both written and oral. There was a special form of will, drawn up by the blind. She required notarization. For a will to be valid, it was required that the testator had an active testamentary capacity (testamenti factio activa), and the heir had a passive testamentary capacity (testamenti factio passiva). Juveniles (females under 12 years of age and males under 14 years of age), mentally ill, squanderers, subordinates, slaves, persons convicted of certain state crimes, and deaf-mutes did not have an active testamentary ability. Women initially did not use active testamentary capacity. However, from the II century. n. e. they received the right to bequeath property with the consent of the guardian. After the termination of guardianship, women received the right to bequeath property. Peregrines, persons deprived of honor, slaves and legal entities did not use the passive testamentary capacity. Sons who possessed a peculium could dispose of half of the peculium. State slaves could dispose of half of their property. If a slave was freed from slavery by will, he could inherit property. During the period of the empire, individual legal entities represented by charitable colleges and institutions, urban communities, etc. were endowed with a testamentary capacity. The only exceptions were "business" corporations. So, in 169 BC. e. The Law of Viconia determined that persons with property of 100 sesterces or more cannot bequeath property to women. Civil law required that the heir be named in the will. In view of this, civil law at first did not provide for the inheritance of property by persons conceived during the life of the testator, but not yet born (postumi) at the time of his death. Later, these persons received the right to inherit property. Required inheritance. In ancient times, the testator enjoyed unlimited freedom to dispose of hereditary property. Over time, there is a restriction of testamentary freedom. The testator was not supposed to pass over in silence his directly subordinate persons. He had to either appoint them as heirs or disinherit them. In the latter case, no reasons were required. Sons were disinherited by name. Daughters and grandchildren could be excluded by a general phrase. Evasion of this formality under kvirite law in relation to sons made the will invalid and opened inheritance by law. By default in relation to other persons, they were called to inherit along with those who were indicated in the testamentary disposition. The subsequent development of inheritance law was associated with a further restriction of the freedom of testamentary dispositions. Already later in the Republican period, the testator was obliged to bequeath to the closest relatives an obligatory share (portio debita). Wills, in which the nearest heirs were excluded from inheritance, began to be recognized by the courts as invalid. The descendants and ascendants of the testator, as well as his brothers and sisters, were entitled to a compulsory share. The size of the compulsory share was initially determined by 1/[4] of what the person would have received by inheriting by law. In Justinian's legislation, the size of the compulsory share became equal to 1/2 of the share due to each heir by law, if this share was less than 1/4 of the total inheritance, and 1/[3] of the legal share, if it was more than 1/4 of the total inheritance. The deprivation of any of the heirs of the obligatory share was allowed only in cases specified in the law. These included the actions of the heirs that threatened the life of the father, the entry of the heirs into marriage against the will of the parents, etc. It was possible to appoint a second heir by will, if the first, due to death or other circumstances, does not enter into the inheritance. This was called "sub-appointment of the heir", or "substitution" (substitutio). Substitution also took place when the testator appointed an heir to his minor in the descending line, if he, before reaching the age of majority, dies due to illness. A will made in compliance with the requirements of the law could be declared invalid if the testator renounced it and made a new will, and also if the will was destroyed or became available to outsiders before the testator's death. During the period of empire, two new provisions appeared. By virtue of the first provision, the will became invalid if the inheritance was not opened within 10 years from the date of its compilation. Later, a rule appeared that 10 years after the will was drawn up, it could be changed in the presence of three witnesses. If the will was declared invalid or was absent, the succession by law took place. Contents of the will. The official language for making wills was Latin, but over time it became possible to make wills in Greek as well. The appointment of heirs was a necessary element of any will (institutio heredis). It was believed that this is "caput etfun-damentum totius testamenti" - "the beginning and foundation of the entire will." The heirs were designated at the very beginning of the will in solemn form ("let there be such and such an heir"), but with the development of praetor law, shorter and less solemn phrases began to be allowed. In the time of Augustus, it became possible to mention the heir in a special appendix ("codicillus") after the will was drawn up. The subappointment of heirs was allowed and could be carried out in the following ways: - the usual sub-appointment (substitution vulgaris) - the designation in the will of a "reserve" heir in case the main one dies or refuses the inheritance. Perhaps there was also the appointment of a third heir already in case of non-acceptance of the inheritance by the second heir. Initially, the second heir received only the property of the testator, and orders (for example, for the provision of legates) were retained by the first heir. However, the obligation of the sub-appointed heir to assume the obligations of the main heir was established by law; - subappointment to a minor (substitution pupillaris) - an indication of the next heir in case the minor who inherited the property dies without having time to make a will (that is, he dies before his majority). Such a person was called the "heir of a minor" and inherited not directly after the testator, but after the minor. The heirs were required to have passive testamentary capacity. It was allowed to indicate in the will not all the property of the testator, but only part of it. The testator could entrust the heir with the performance of some duties (the actual fulfillment of their heirs was provided only administratively: according to Roman rules, the one who became the heir remains the heir forever, the conditional cancellation of the heir or the establishment of the heir "for a period" or "after the expiration of a certain period" was not allowed, such conditions were considered unwritten). The instructions made in the will should not have been immoral or illegal. In this case, they were ignored. In the form of orders, guardians and trustees were appointed, instructions were given on the release of slaves after the death of the testator, etc. Will forms. According to Gai (gai. 2), there were two forms of testament in ancient law. Both forms were the expression of the will of the testator before the Roman people. However, the procedure for making these two types of will, as well as the conditions under which they were made, were different. 1. The public act of a public testament was made in the national assembly for the curia, which was convened for this twice a year. The testator verbally expressed his will, that is, first of all he appointed himself an heir, and in addition, he could order the issuance of legates by the heir, he could appoint a guardian to his wife and minor children, etc., and then turned to the people with a request, for example: so I transfer property, refuse, bequeath, and you quirites, testify to this. At a later time, this appeal to the people and the very participation of the people in making a will became a mere formality. 2. The second form of the most ancient testament was the testament in procinctu (according to Gaius, procinctus is an armed army ready for a campaign - expeditus et armatus exercitus) (Gai. 2. 101). Both ancient forms of wills had a number of shortcomings: firstly, both forms inevitably entailed the publicity of testamentary dispositions, which did not always correspond to the interests of the testator; secondly, a will comitiis calatis could only be made twice a year on certain days, and a will in procinctu was not available to persons who were not part of the army, in particular the elderly and the sick, that is, those who were especially interested in making wills. Practice has found a way to satisfy the relevant interests, using here, as in a number of other cases, mancipation. The testator handed over by means of mancipation all his property to a trustee (familiae emptor), who undertook to fulfill the orders made immediately by the testator. Holding an ingot of metal in his hands, in the presence of five witnesses, the treasurer and a trustee, he pronounced the mancipation formula adapted for this case. After that, he handed over the ingot to the testator, and then the testator stated his orders and addressed the witnesses with a request similar to that with which the testator addressed the people in the people's assembly. Oral orders of the testator constituted a solemn promise and joined the mancipation. This form of will could be used at any time. But, like the most ancient forms of will, she made it public. To avoid this shortcoming, a written form of the will was introduced: after the mancipation, the testator handed over to the trustee waxed tablets (tabulae testamenti), on which the will of the testator was stated, and said: "As it is written in these waxed tablets, so I dispose." Following this, the tablets were tied with a cord and sealed with the seals and signatures of both the testator and all seven persons present at the commission of the act: a trustee, five witnesses and a treasurer. Along with the described forms of a private will, public forms of a will appeared during the period of dominance: a will declared before a court (testamentum apud acta conditum) and a will deposited with the emperor (testamentum principi oblatum). In addition to the general ones, there were also special forms of wills, complex for some special cases and simplified for others. So, for example, the wills of the blind were made only with the participation of a notary. During the epidemic, deviations from the rule (unitas actus) were allowed, in particular, with regard to the simultaneous presence of all persons participating in the making of the will. The will, which contained only the distribution of property among the children of the testator, did not require the signatures of witnesses. Finally, due to "extreme inexperience" in business, the will of soldiers (testamentum militis) was completely free from forms. Testamentary capacity. Testamentary capacity is the ability to make wills, as well as the ability to act as an heir in a will. Testamentary capacity was active and passive. Active testamentary capacity is the ability to make wills. It assumed, as a general rule, the existence of a general legal capacity in the field of property relations. However, state slaves had the right to dispose of half of their property by will. At the same time, the very forms of wills made them inaccessible to all those who did not take part in public meetings or did not perform military service: for minors, for women, etc. But for women, a special rule was established: women, even legally capable, were until the XNUMXnd century. n. e. completely deprived of the right to make wills. In the II century. they were given the right to make wills with the consent of the guardian. With the disappearance of guardianship over women, they acquired full active testamentary legal capacity. Passive testamentary legal capacity is the ability to be an heir, legatee, guardian under a will. Passive testamentary legal capacity also did not coincide with the general one. First of all, it was possible to make a will in favor of a slave, one's own or someone else's. If a slave was appointed heir in the will of the master, then such an appointment had to be accompanied, and later it was supposed to be inextricably linked with the release of the slave, who at the same time did not have the right not to accept the inheritance. He became a necessary heir (heres necessarius). If the slave was alienated by the master before the opening of the inheritance, he accepted the inheritance by order of the new owner, who became the acquirer of this inheritance. If a slave was freed from slavery by the time the inheritance was opened, he was an heir in the proper sense of the word and had the right to accept the inheritance or renounce it. Thus, the passive testamentary legal capacity of the slaves served primarily the interests of the slave owners: in some cases, it gave the master the necessary heir, that is, the person who was obliged to assume responsibility for the debts of the testator, in other cases it put the master in the same position, as if he himself had been appointed heir. The only case in which passive testamentary capacity directly served the interests of the slave was the case when the slave was freed from slavery before the opening of the inheritance: in this case he remained the heir and had the right to accept the inheritance or renounce it at his own discretion. According to the lex Voconia plebiscite (169 BC), the appointment of women, except for the vestals, as heirs of citizens entered in the qualification as owners of property worth 100 thousand sesterces and more was forbidden. It was a measure against the extravagance on the part of women of the highest social strata. With the disappearance of the qualification, this measure lost its practical significance. Of significant importance was the long-standing prohibition to appoint as heirs not quite certain persons (incertae personae), which was associated with the prohibition to appoint as heirs persons who had not yet been conceived at the time of the will (postumi). However, civil law also allowed in the future the appointment of all the children of the testator that could be born (sui postumi) as heirs, and the praetor's law recognized the appointment of the younger, who was not related, as legitimate. For the same reasons, it was not allowed to appoint as heirs those associations that in Rome were the beginnings of legal entities, for which passive testamentary legal capacity was recognized only in individual cases. 8.3. Inheritance by law Inheritance by law occurred if the deceased did not leave behind a will, in the event of the invalidity of the will, or in the event of the refusal of the heirs under the will to accept the inheritance. The condition for opening an inheritance for inheritance by law was the final clarification of the issue that inheritance by will would not occur. Therefore, inheritance by law was not opened until the heir called by will decided whether he would accept the inheritance or not. When it turned out that inheritance by testament would not occur, then the nearest heir by law was called to inherit, who is considered to be the one who is in first place in the order established by law of heirs by law at the time of opening the inheritance. If the nearest heir by law does not accept the inheritance, then the inheritance was opened to the successor following him in order by law. The order in which legal heirs were to be called differed in different epochs in the development of Roman law. This is due to the general gradual restructuring of the family and kinship, with the gradual evolution from the old agnatic principle to the cognatic one. Inheritance under the Laws of the XII Tables. In ancient Rome, the order of succession according to the law was based on agnatic kinship. A will, although possible to draw up, was rarely drawn up. The laws of the XII tables determined the order of inheritance as follows: "si intestate moritur moritur cui sum heres nee ascit, agnatus proximus familiam habeto. si agnatus nee escit, gentilies familiam habendo" - "If someone dies without a will and in the absence of heirs of the rank of sui , let the nearest agnate accept the inheritance. If there are no agnates, the inheritance goes to members of the clan "(Laws of the XII tables, 5th table). Thus, inheritance by law was carried out according to the degrees of kinship: 1st line of inheritance under the law - subordinates, who lived with the head of the family, who at the time of his death from persons in "alien" power became legally capable persons (children, grandchildren from deceased children, etc.); 2nd turn (in the absence of the first turn) - the closest agnatic relatives; 3rd turn - members of the same genus with the successor (gentiles). Non-acceptance of the inheritance by the very first of the available queues immediately made the inheritance "lying" (if the inheritance of the 1st stage was refused, the 2nd one did not receive anything). Inheritance by praetor law. Praetor law changed the order of succession due to the fact that by the end of the republic, Roman society had outgrown the patriarchal agnatic mode of inheritance. Significant new changes were required in the regulation of hereditary relations. The problem that arose was solved by the praetor's fiction (bonorum possessio), according to which if the praetor called for the inheritance of persons who were not heirs by civil law, and granted them the right to own the property of the testator, then they were recognized as heirs. The main changes compared to civil law were as follows: 1) the praetor established that in case of non-acceptance of the inheritance by the next heir, according to the law, it should be opened to the next one in order; 2) the praetor for the first time attached importance to inheritance, along with agnatic kinship and cognatic, as well as the institution of marriage. During the imperial time, legislation increasingly expanded the meaning of cognatic kinship in inheritance. The order of succession becomes: 1st turn (unde liberi). This category included the children of the testator, both legitimate and adopted, as well as those given to them for adoption, if by the time of the testator's death they were released from the authority of the adoptive parent. Persons freed from the power of the head of the family during his lifetime inherited according to the rules of collatio bonorum emancipati (emancipated children were obliged to contribute all their property to the inheritance mass, which was distributed among all heirs as part of the inheritance mass); 2nd turn (unde legitimi). If none of the 1st line of heirs expressed their will to inherit, then the agnatic relatives of the testator (unde legitimi) inherited next; 3rd turn (unde cognati). Blood relatives up to the sixth degree inclusive as an exception and up to the seventh degree of kinship inherited after the two previous stages. It is in this order that the children inherit after the mother and the mother after the children. Thus, for the first time, the role of consanguinity is recognized in inheritance, although the agnathic one remains preferable; 4th turn (unde vir et uxor). The surviving spouse (husband after wife, wife after husband) inherited the latter. The inheritance became "lying" only in the absence or refusal of the inheritance of all queues. Inheritance by Justinian. The legislation of the period of the empire continued the tendencies of praetor law: the gradual displacement of agnatic kinship by cognatic kinship as the basis of inheritance. A number of Senate resolutions turned into a civilized inheritance previously provided by the praetor to the mother after the children and children after the mother. The rights of children to inherit after relatives on the maternal side are also expanding. Despite the fact that agnathic kinship was of less and less importance, the system of succession by law was extremely confused. Justinian decided to simplify the system of inheritance, finally establishing the cognatic relationship of inheritance by law. This principle was consolidated by the short story 118 (543) and the short story 127 (548) that changed it. According to the established system of Justinian, cognatic relatives were called to inherit without distinction of sex in the order of their proximity to the deceased. There were four categories of heirs: 1) the first category - everything was divided equally between the closest relatives in the descending line: sons and daughters, grandchildren from previously deceased children, etc. The death of an heir before entering into the inheritance entails the distribution of his share already between his legal heirs within a year from the date when the deceased became aware of the death of the first heir; 2) the second category was represented by ascendants and full brothers and sisters. The heirs of this category share the inheritance equally, but the children of siblings who have previously died receive a share that would have been due to their deceased parent. If only relatives in the ascendant line inherit, then the inheritance is divided as follows: one half goes to relatives in the ascendant line from the paternal side, the other - from the maternal side (in lineas); 3) the third category, called for inheritance in the absence of the first two, are half-blooded brothers and sisters, i.e., descending from the same father with the deceased, but from different mothers or from the same mother, but from different fathers, as well as children of half-brothers and sisters who receive a share that would be due to their parent; 4) if there is none of the listed relatives, the rest of the lateral relatives receive the inheritance in order of proximity of degrees without any restriction to infinity. The nearest degree eliminates the next; all those who are called share the inheritance without exception (in capita). The novels do not mention the inheritance of the spouses. It is assumed that it continued to be regulated by the rules of praetor law. Under the system introduced by Justinian, this meant that the surviving spouse inherited only in the absence of any, even the most distant, lateral relatives. But for a poor widow (uxor indotata), Justinian established a rule: a widow who had neither a dowry nor property that was not part of the dowry, inherited simultaneously with any of the heirs, receiving 1/4 of the inheritance, and in any case not more than 100 pounds of gold . Inheriting together with her children from the marriage with the deceased, she received her share in the usufruct due to her. In the absence of any heirs, the property of the deceased was recognized as escheated. The escheated property went to the fiscus, and sometimes to monasteries, churches, etc. 8.4. Acceptance of inheritance and its consequences Acceptance of an inheritance. Inheritance is succession in the property rights and obligations of the testator, except for those that (like usufruct, punitive damages from torts and some others) are considered inextricably linked with the person for whom they arose. The moment when the succession was recognized as established, and the procedure for this establishment were not the same in Roman law for different categories of heirs. For successors and testamentary slaves of the testator, the moment of the opening of the inheritance (delatio hereditatis) was also the moment of the emergence of the succession. Moreover, according to civil law, neither successors nor slaves had the right to refuse the inheritance opened to them. They were essential heirs. This was explained by the fact that, as already indicated, they did not so much inherit, in the opinion of the Romans, as they entered into the management of their property. For slaves, this was a consequence of their general legal status: the appointment of an heir meant the release of a slave, but the release with the assignment to the slave, by the will of the master, of the position of heir. It is clear that such compulsory inheritance was very burdensome for the heir in cases where the inheritance was overburdened with debts, for which the heir, by virtue of the Roman concept of universal succession, was liable not only with the property of the hereditary mass, but also with his own property. In view of this, the praetor granted the successors the so-called right to refrain from inheritance, by virtue of which he refused a claim against civil heirs who did not actually exercise their right to inherit, and offered bonorum possessio to the category of heirs following them, and if there were no willing ones, he announced a competition over property testator to satisfy his creditors. All the rest belonged to voluntary (foreign) heirs (heredes voluntarii). For them, the opening of the inheritance meant only the emergence of the right to accept the inheritance. The acceptance of the inheritance took place during the implementation of an oral solemn act, which was called cretio. There was a fairly formalized form of the cretio, in which the established phrases were pronounced, for example, "I enter and accept." Gradually, the form became simpler, and there was enough informal expression of will to accept or actually enter into the inheritance. This process became known as pro herede gestio. Civil law did not set a time limit for accepting an inheritance. But the creditors of the testator, interested in the speedy satisfaction of their claims, could demand from the heir an answer (an heres sit), that is, whether he accepts the inheritance. After that, at his request, the heir could be appointed by the court to resolve the issue of accepting the inheritance (spatium deliberandi), after which the heir who did not give an answer was considered: before Justinian - refused, and in the right of Justinian - accepted the inheritance. It is clear that the rules on the automatic acquisition of inheritance by some of the civil heirs were inapplicable to praetor law; it had to be requested, and, moreover, within the prescribed period: relatives in the descending and ascending lines were given a period of one year from the date of opening the inheritance, the rest of the heirs - one hundred days. If this period was missed by the heir called at the time of the opening of the inheritance, the praetor law proposed that the inheritance be accepted by the next heir in the order of succession between the heirs. "Lying" inheritance. "Lying" inheritance (hereditas iacens) arose in the absence of heirs by will and by law. This could happen if the heirs have not yet announced or if the heirs have refused the inheritance (the next existing turn was not recognized by the heirs if everyone in the previous turn refused it): - in ancient Rome, in the absence of heirs, property could be seized by anyone. It was believed that the "lying" inheritance does not belong to anyone; - in the classical period, the "lying" inheritance was considered to belong to the deceased ("keeps the identity of the deceased") without the right to encroach on it; - during the period of the principate, such an inheritance goes to the state; - in the postclassical period, the "lying" inheritance goes to the state, but the municipal senate, church, monastery and others have an advantage over it if the testator was their member (participant). In that period, while the inheritance was considered "lying", taking possession of it was not allowed. However, it was possible to acquire it by means of prescription as an heir (usucapio pro herede). Such an acquisition consisted in the fact that the one who owned one thing from the "lying" inheritance for one year acquired ownership not only of it, but of the entire inheritance (i.e., acquired the status of the heir to the entire property). Such an acquisition did not comply with the statute of limitations and did not take into account the good will of the person. Therefore, in the classical period, such an acquisition was considered unworthy. Only the thing seized into possession began to flow into property. The rule of one year was preserved for both movable and immovable things until the era of Justinian, when the usual periods of limitation began to apply. hereditary transmission. Hereditary transmission (transmissio delationis) is the transfer of the right to accept an inheritance to the heirs of a person who did not have time to accept the inheritance assigned to him due to his death. According to ancient civil law, hereditary transmission was impossible: if the heir called to inherit did not accept the inheritance by law, it was recognized as ownerless. Under praetor law, it was proposed to accept the inheritance in this case to further heirs. If the heir by will did not accept the inheritance before his death, then inheritance was opened according to the law. Thus, the right to accept the inheritance was considered as a personal right of the heir, not passing to his heirs. From this general position, however, gradually began to introduce exceptions. The praetor admitted that if the heir died without having time to accept the inheritance without his fault, then after the investigation of the case (cognita causa), his heirs, in the order of restitutio in integrum (restoration to their original position), may be granted the right to accept the inheritance. In the law of Justinian, this rule is generalized: if the death of the heir followed within a year from the day when he learned about the opening of the inheritance for him, or during the time he requested for reflection, then the right to accept the inheritance is considered to have passed to his heirs, who can carry it out. the right during the period still remaining by virtue of the general rules to accept the inheritance. In those cases when, as a result of death before accepting the inheritance or as a result of renunciation of the inheritance, one of several heirs fell away and if there was no transmission, the share of the fallen heir was added to the shares of the rest, distributed among them equally. So, if one of the two heirs under the will died without accepting the inheritance and leaving no heirs himself, then his share did not pass to the heirs of the testator under the law, but to another heir under the will. Similarly, in the event of falling away after the opening of the inheritance of one of the heirs by law. Legal consequences of acceptance of inheritance. With the acceptance of the inheritance, all the rights and obligations of the heir were transferred to the heir, with the exception of personal rights and obligations. In addition, all inherited property was attached to the property of the heir. Merging beneficium separationis ("separation benefits") was disadvantageous to different persons. If the heir was burdened with debts, then the merger was unprofitable for the testator's creditors, who had to endure the competition of the heir's creditors when satisfying their claims. In view of this, the praetor began to provide creditors with a special benefit (beneficium separationis), by virtue of which the estate was merged with the property of the heir only after the claims of the testator's creditors were covered from it. If the inheritance was burdened with debts, then the merger could be disadvantageous for the heir's creditors. However, the praetor did not give them such a privilege, for the debtor is not generally forbidden to make new debts and thereby worsen the position of creditors. The need to answer with their property for the debts of the testator could be disadvantageous for the heir. For him, after a series of previous events, Justinian also introduced a privilege (beneficium inventarii), thanks to which the heir, who began, within 30 days from the date of opening of the inheritance in the presence of a notary and witnesses, the compilation of an inventory of hereditary property and completed its compilation in the next 60 days, answered for the debts of the testator only within the described inheritance (intra vires hereditatis). With a plurality of heirs, they became the owners of things that belonged to the testator by right of ownership, each in the amount of his hereditary share. Claims and debts, the subject of which was divisible, were divided into corresponding shares. Indivisible claims and debts created joint and several rights and joint and several liability of heirs. The plurality of heirs in some cases also determined the obligation to add certain types of property of the heirs themselves (collatio bonorum) to the estate. The same obligation is established in relation to the dowry received by the daughter, who then inherited the father's property together with her brothers and sisters (collatio dotis). During the period of the empire, a number of laws established the general obligation of descendant relatives, when inheriting after ascending relatives, to contribute to the inheritance mass all property received from the testator in the form of a dowry, donation due to marriage or for independent arrangement, obtaining a position, etc. This was the so-called duty of descendants. 8.5. Legates and Fideicommissi Legates (testamentary refusals) are such orders in the will, according to which any benefits were provided to other people at the expense of inheritance. These people began to be called legataries. The legatee could only count on a part of the assets of the inheritance, and not on any share of the inheritance. The legatee demanded the right to a specific thing with a vindication claim, or he filed a separate claim for the execution of the will of the testator and demanded something from the heir. If the legatee dies without receiving a legate, then he passes to the heirs of the legatee. Legacy types: - legatum per vindicationem established the property of the legatee on a certain thing as part of the hereditary mass. This legacy was defended by a vindication suit; - legatum per praeceptionem is most often considered a variety of wines of dication legat. According to it, only the property of the testator could be denied; - legatum per damnationem obliged the heir to transfer a certain thing to the legatee, but he did not have any real rights to the received thing. The thing could be claimed by the legatee with the help of an actio ex testamento; - a variation of this legate was legatum sinendi modo, the subject of which could be the things of both the testator and the heir, and even third parties. The acquisition of the legate took place in two stages: 1) at the time of the death of the testator, the legate was assigned to the legatee; 2) from the moment the heir entered into inheritance rights, the legatee could demand the receipt of the thing specified in the will through a vindication (proprietary) claim and a claim for the execution of his right to claim. The legate could be revoked both as a result of the revocation of the will, and as a result of the revocation of the legate himself (ademptio legati). Initially (according to civil law), it was believed that the recall should take place formally, by means of an oral statement about the recall, later informal recall also began to be recognized (for example, the alienation by the testator of a thing, which is incompatible with its subsequent leaving to the legatee). The legate was recognized as null and void by the Cato rule (regula Catoniana), according to which the legate was considered null and void if he was such at the time of the will, even if the cause of nullity no longer exists by the opening of the inheritance. Restrictions on legates were introduced already during the period of the principate, before that there were no restrictions. In order to protect heirs from legates, at the beginning a sum limit of 250 sesterces was introduced, and later the heir, in the presence of legates, kept a quarter of the inherited property (falcidian quarter). Fideicommissi (translated as "entrusted to conscience") are oral or written requests or recommendations for the fulfillment of any assignment or the provision of a part of the inheritance to any person, with which the testator addressed the heir. Such requests were often made in an ill-formed will, or in an ordinary will, but addressed to legal heirs. It should be noted that, in contrast to the usual legate, according to which a certain thing was transferred, a part of the inheritance was transferred according to the fideicommissum. During the republican period, there was no protection of the fideikomisses, and the heir himself decided to transfer or not to transfer part of the inheritance. The legal defense of the fideikomisses appeared only during the period of the principate, they began to look like legates. At the same time, a universal fideicommissum arose. Sometimes it happened that the jideikomiss received most of the inheritance, and all debts and part of the property remained with the heir. To avoid such injustice, a rule was introduced according to which the heir kept a quarter of the inheritance for himself, and the fideicommissum received a share of the inheritance along with part of the debts. Thus arose the order of "universal" succession under the shared fideicommissum. Under Justinian, singular fideicommissi were equated with legates. Donation in the event of death (donatio mortis causa) is a special type of contract concluded between the donor and the donee. It consisted in the fact that the donor gave some thing, but if he remained alive after some event or outlived the donee, he could take it back. Such a donation was usually made before a war, a battle, a journey by sea, that is, in cases where the danger of not staying alive was significant. Justinian's law united fideicommissum, legate, and donation in the event of death. Dictionary of Latin terms and expressions Aab vintage - since ancient times ab inestato - transfer of property by inheritance by law (without a will) acceptilatio - acceptance, repayment of debt by stipulation acceptum - admission, acceptance accessio - belonging of a minor thing to the main one accessio possessions - increment of ownership by prescription action - lawsuit Actio aestimatoria - claim for reduction of the purchase price actio confessoria - claim for the protection of the rights of title holders of easements actio contraria - counterclaim actio de peculio - claim for the protection of creditors in transactions concluded during the management of peculi actio doli - an action brought against a party who persuaded a contract to be entered into by fraud actio ex stipulate - claim based on stipulation actio ex testamento - testamentary claim actio honoraria - praetor action actio hypothecaria - mortgage claim action in person - personal claim action in rent - real action actio iudicati - claim for execution of judgment actio negatoria - negative claim actio noxalis - noxal claim, i.e. a claim against the householder for compensation for damage caused by a slave or subject actio perpetua - eternal lawsuit actio poenalis - penalty claim actio quanti minoris - claim for a reduction in the purchase price due to the discovery of defects in the thing actio quanti minoris - a claim for a reduction in the price of goods of inadequate quality action redhibitoria - claim for termination of the contract of sale actio stricti iuris - claim under civil (strict) law actiotemporalis - temporary claim actio tutelae - custody claim actio tutelae contraria - counterclaim for guardianship ademptio legati - legate review adfinitas - property adiudicatio - award adoption - adoption admissio - guarantee adpromissor - guarantor, guarantor adtemtata pudicitia - moral damage aequitas - justice aes rude - unwrought copper, used as a measure of value aetas - the age of the person on which his legal and legal capacity depended affinitas - relationship by marriage agnatio - agnatic kinship belonging to the same familia alieni iuris - a person under the authority of his pater familias (in "foreign" authority) appeal - appeal aquaeductus - aqueduct, the right to conduct water arrha - deposit arrha confirmatoria - a deposit that secures the purchase and sale В beneficium cedendarum actionum - exemption for assignment of claims Beneficium divisionis - privilege for the division of responsibility of guarantors (guarantors) bona - property bona fides - good faith (transactions of "good conscience") bona materna - property received from the mother bonorum emptio - acquisition of property at auction bonorum possessio - inheritance by praetor law bonorum possessio contra tabulas - inheritance by praetor law contrary to will С barrel - rent in the emphytheusis agreement capitus deminutio - derogation of civic capacity caput - personality, capacity casus maiores - occurrence of force majeure circumstances cause - basis, purpose of the contract cautio - a document confirming the fact of stipulation cautio damni infection - Warranty in case of impending damage cautio indicatum solvi - guarantee of payment of the amount awarded certum - a certain value cessatio - evasion of duties cession - transfer of obligations, replacement of subjects cessium bonorum - provision of property to the creditor (full or partial) chinographa - chirographs - a form of a literal contract concluded in the first person without witnesses cives - Roman citizens civitas romana - Roman citizenship, Roman state codex accepti et expensi - income and expense book cognition - blood relations cognition servilis - blood relationship between slaves cognitions extra ordinem - extraordinary process snack - clubbing collatio bonorum - adding property of heirs to the estate collatio dotis - adding a dowry to the estate commentariis - comments, interpretations of the law in force by lawyers Commercium - business turnover commodatum - loan compromise - an agreement between counterparties on the transfer of their dispute to an arbitration court condemnatio - condemnation (in the claim formula) condition - condition condictio ex causa furtiva - a claim for the return of property received as a result of theft condictio indebiti - a claim for the return of unpaid condictio ob rent date - an action for the return of a grant, the purpose of which has not been realized condominium - joint property conductor - employer, customer in the service contract confarreatio - ritual way of marriage confused - merge constitutum debt - an informal agreement under which one party undertakes to pay the other party its previous debt constitutum debiti alieni - recognition of someone else's debt constitutum debitiproprii - recognition of own debt constitutum possessorium - establishment of ownership contractus - deal, deal, contract contradiction - respondent's objection contuberium - cohabitation of a slave and a slave or a slave and a free man convention - agreement (divided into pacts and treaties) convindum - scolding, personal insult crime - a crime guilt - guilt guilt can - serious offense culpa levis in abstracto - abstract guilt, i.e. guilt compared with an abstract position about how a zealous, "kind" owner of a thing would behave culpa levis in concrete - specific guilt, compared with how the debtor behaves in his own affairs care - guardianship D damnum iniuria datum - damage to someone else's property give - to give, to hand over decree - decisions of the emperor in controversial cases delicta private - private torts delicta publica - public torts delicta, maleficia - torts dementia - insanity demonstration - description (part of the claim) security deposit - storage, luggage depositum irregulars - "unusual" (irregular) luggage depositum miserable - "woeful" baggage this - day, term dies a quo - start time die ad quern - deadline Digest - Digests (collections of law, part of Justinian's codification) divortium - divorce Dolus - fraud, dishonesty, intent dolus malus - evil intent domain - ownership donatio ante nuptias - prenuptial gift of - dowry E edictum - edict emancipatio - emancipation emptio venditio - purchase and sale emptor - buyer error - misleading, error in the conclusion of the contract error in case - an error in the basis of the transaction error in negotiation - an error in the nature and nature of the transaction when concluding the contract error in person - an error in the identity of the counterparty when concluding the contract error in re, error in body - error, misunderstanding in the subject of the transaction when concluding the contract error iuris - an error in the prescription of the law error substance - an error in the essence of the subject evocatio - summoning the defendant to court exception - objection, remedy exception - procedural clause in favor of the defendant exceptio doli - a counterclaim submitted to the defendant against the claim of the plaintiff who deceived him exceptio rei judicatae - an objection based on a court decision; objection to the thing awarded expensilatio - the oldest type of literal contract, in which the obligation was fixed by entering it into the income and expense book F facere - do, perform fas - religious norms, ritual prescriptions of a religious nature fideipromissio - an ancient form of concluding a contract of guarantee, guarantee fideiussio - the form of conclusion of the contract of guarantee, guarantee confidence - the oldest form of storage agreement formula - a formula in a lawsuit expressing the praetor's instruction to the judge what is and how to conduct a certain litigation forum - the main square in Rome, where public actions took place, - a state body for resolving certain issues fructus - fruits fruits - get fruits fury - rabies furtum - theft furtum conceptum - discovery of stolen goods in the presence of witnesses furtum lance et lido - discovery of a stolen item in a ritual way furtum manifestum - catching a thief at the time of theft, red-handed furtum possessions - theft of possession furtum prohibitum - "forbidden theft", a term that defines a situation where a person did not allow his home to be searched furtum rei - theft of property (things) furtum usus - unauthorized use of someone else's thing Fraus creditorum - fraudulent alienation of property G gens, genus - genus gentle - relatives graduated - relation degree H to the news - to have, to possess habitat - accommodation habitat - tenant heres - heir homo - man honor - job title hypotheca - mortgage I ignoratia - delusion imperium - government infants - persons under the age of majority interdictum - means of extrajudicial protection of personal rights impensae - expenses institutions - "institutions" (manuals of law) intercessio - taking on other people's debts iudex - referee ims - right impuberes infantia majores - immature or "young children who have come out of childhood" infamnia - dishonor infants - completely disabled babies iniuria - insult, encroachment on the personal and bodily integrity of a person ius civile Quiritium - qvirite (civilian) civil law ius connubii - the right to enter into a legal marriage ius gentium - law of peoples ius scriptum - unwritten law iusprivatum - private right iuspublicum - public law ius public respondent - the right of Roman jurists to give official advice on behalf of the emperor ius romanum - Roman law ims scriptum - written law iusiurandum - the oath iustae nuptiae - legal marriage L Latin - latin latin veteres - primordial "old" or "ancient" Latins Leges XII tabularum - Laws of the XII tables legis actio - lawsuit leges perfectae - laws that declared void actions that violated them leges plus quam perfectae - laws providing for the recovery in favor of the victim leges minus quam perfectae - laws, the violation of which entails punishment, but the violation remains legally valid leges imperfectae - laws that have no sanction for the person who violates them leges speciales - laws governing the relations of certain groups of persons Leges privilegia - laws that improve (or worsen) the situation of individuals lex - law libellum famosum - libel writing liber - free man libertus - freedman libripens - weigher (for mancipation and other transactions) lis - litigation litis aestimatio - assessment of litigation litis contestatio - evidence of litigation literis - in writing locatio conductio - hiring locatio-conductio operarum - employment contract locatio-conductio opens - work agreement locatio conductio rei - renting things lessor - contractor in the service contract М manciyard - mancipation, an ancient form of transferring ownership of a thing Flow - orders, instructions to imperial officials on administrative and judicial issues mandans - the trustee in the contract of agency Mandate - commission agreement manumissio - manummission manual censu - manummission by qualification manual testamento - testamentary manumission manual vindicta - manummission with vindicta mater family - mother of the family mex - product years - the threat mutuum - loan N negotiorum gestio - handling other people's affairs without instructions nexus - the oldest form of a pledge agreement nuncupatio - nuncupation, a solemn oral command that complements the rite per aes et libram nuptiae - marriage nomen - generic name nudum ius - bare right noxae deditio - extradition of the guilty О ordering - oblige obligatio - commitment obligationsesbonafidei - obligations under which judges took into account trust and fairness ("good conscience") occupation - method of acquiring property offidum - duty, duty by law - by virtue of law operae - work force opus business, work, work P pacta adiecta - additional agreements pacta legitima - imperial pacts pacta praetoria - praetor agreements pactum - pacts pactum donationis - informal donation agreement pactum dotis - an informal agreement by which a dowry was established per legis actions - Legislation process per formulas actions - formulary process pilgrimage - peregrines, foreigners permutation - mena plebiscita - legislative acts of the plebeians praescriptio - introductory part of the law pretium - price pretium certum - fixed price pretium iustum - fair price pretium verum - actual price prodigus - spender puberes - sexually mature pubertas - puberty Q qualities - quality quasi ex delicto - quasi-delicts ("as if torts") R rapina - robbery receptum arbitrii - agreement on the performance of the role of arbitrator receptum argentaria - an agreement between the banker and the client, on the basis of which the bankers canceled the client's debt receptum nautarum - agreement with the owner of the ship, hotel regulae - "Regulations" (collections of legal rules) remission - removal of the ban rs - thing remission - removal of the ban scripta - Emperor's responses to legal inquiries from private individuals and officials responsibility - answer, conclusion, consultation res nullus - nothing thing res mancipi - manipulative things res nes mancipi - unmanipulable things res humani iuris - things of human rights resfurtiva - stolen item res sacrae - sacred things res university - communal things restitutio in integrum - restore to original position restitutio in integrum propter aetatem - restoration to the original position due to age restitutio in integrum propter dolum - restoration to the original position due to deception restitutio in integrum propter metum - restoration to its original position due to a threat rogatio - the content of the law S sanctio - legal sanction sequestrum - sequestration - a special type of storage agreement senatusconsulta - senatusconsultants servitus - easement servitus pascendi - right to graze livestock servitus pecoris ad aquam adpulsus - the right to bring animals to water servitudes in rem - real easements servitutes personarum - personal easements Hello - slave simulation - simulation sine tabulus - without a will companies - partnership agreement society - partners (participants of the partnership agreement) sponsalia - betrothal, betrothal status civitatis - state (status) of citizenship status family - marital status (status) status libertaris - state (status) of freedom prescribedio - stipulation stipulation iuris gentium - stipulation according to the law of peoples stipulation poenae - penalty clause substitutio pupillaris - appointment of an heir stipulations of caution - extrajudicial stipulations stipulationes comunes - provisions to ensure the smooth conduct of the trial stipulationes judiciales - provisions to regulate the conduct of litigation in court successio in ius - universal succession successio in singulas res - succession in separate legal relations successio in universum ius - succession in full suo nomine - in one's own name surfaces - superficies syngraphae - sinographs - a form of a literal contract concluded from a third party with witnesses T tabulae testamenti - tablets on which the text of the will was written time - time, term cute - responds to a lawsuit testamentum - testament testamentum in procinctu - testament before the battle testicles - witness tradite - transfer of ownership transaction - waiver of claims translation leguti - legate translation ugly - unworthy protection - guardianship tutor - guardian U usucapio - purchase by prescription usurae - interest usurae conventionales - interest on the contract usurae legalis - legal interest usurae moratoriae - late payment interest usurpatio - interruption of the statute of limitations you use - advantage, advantage V vendor - salesman screw - violence vis absolute - absolute violence, when a person cannot refuse a deal because he is afraid for his own life vis major - natural events that a person cannot resist vis private - private violence vis publica - public violence affecting the public life of a person vindex - guarantor volunteers - will, intention verbs - in oral form vessel - guarantor vetustas - immemorial time Literature
Authors: Pashaeva O.M., Vasilyeva T.G.
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