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Lecture notes, cheat sheets
Roman law. Cheat sheet: briefly, the most important
Directory / Lecture notes, cheat sheets Table of contents
1. The concept of Roman law. The difference between private law and public law. Major systems of Roman law The term "Roman law" refers to the law of ancient slave-owning Rome, as well as its heir - the Byzantine Empire (up to Justinian). In the Roman tradition (beginning with Ulpian) it is customary to divide law into public and private. Ulpian wrote: "Public law is that law that refers to the status of the Roman state, and private law is that which has in mind the benefits and interests of individuals." For private law, a dispositive method of regulation is characteristic, and for public law, an imperative one. The scope of private law in Rome was very wide and included the following main legal institutions: the right to property; other property rights; contracts and other obligations; family relations; inheritance; claim protection of rights. Unlike public Roman private law was widely accepted (received) by European medieval legal systems and underlies the modern civil law of the countries of the Romano-Germanic legal family. Highlighted national law - jus civile and the so-called law of peoples - ius gentium. civil law extended only to legal relations, both participants of which were Roman citizens (quirites). However, over time, when Rome became a world empire, there was a need for a legal system that regulates the relations of Roman citizens with persons who do not have the status of citizenship and the latter among themselves. Thus arose the law of nations (ius gentium). A key role in its creation was played by the praetor peregrini (this Roman magistracy was established in 242 BC). law of peoples was largely based on borrowing legal structures from other nations (Phoenicians, Greeks, Egyptians, etc.). At the same time, one must understand that the law of peoples - not international law, but Roman law - extended, of course, not to all non-Romans, but to those who were under the jurisdiction of Rome (Roman subjects). The ius gentium was more progressive than the ius civile, it was imbued with a commercial spirit. Then these legal systems began to converge. The distinction between quirite law lost its meaning in 212, when the emperor Caracalla granted the rights of citizenship and the right of peoples to all free Roman subjects. The perception by civil law of the main content of the law of peoples resulted in the emergence of a universal legal system - Roman classical law, which absorbed all the norms that most corresponded to the functioning of a society of developed commodity production and turnover. 2. The historical significance of Roman law. The Significance of Roman Law for Modern Jurisprudence After the fall of the Western Roman Empire, Roman law was no longer applied even in Rome, but it continued to be used in the Eastern Roman Empire (Byzantium). Barbarian Western European kingdoms borrowed only certain norms of Roman public law. However, as economic relations developed, Roman law was again in demand (by the XNUMXth century), it began to be studied at northern Italian universities (the school of glossators), applied in Italy, Germany, southern France, even Moldova. The glossators were engaged in commenting and interpreting the norms of Roman law, often changing them in connection with the changed situation. In addition, it cannot be said that all the norms of Roman law were borrowed (in particular, the institution of slavery was not accepted). In order to overcome the fragmentation and heterogeneity of legal proceedings, the norms of Roman law (glossed) began to be applied in the courts of Western European countries. Over time, the norms of Roman law began to be systematized into textbooks, collections and codes. The crowning achievement of this process was the drafting of the Napoleonic Civil Code of France in 1804 and the German Civil Code of 1896 (which entered into force in 1900). Roman law (the system of its presentation) underlies modern codes (especially civil ones). The entire modern conceptual apparatus of civil law is rooted in Roman law, many institutions of Roman law are received by modern law with virtually no changes (for example, the structure of property rights). The theory of state and law borrowed the methods of Roman law in the construction of theoretical structures. The modern system of presentation of law is borrowed from Roman law. 3. The composition of the sources of Roman law by the beginning of the XNUMXst century AD. Among the sources of Roman law The following can be distinguished: 1. Legislation - acts (usually written, although the people's assembly also approved oral ones) issued by the supreme legislative power. During the monarchy, this was done by the kings, under the republic, by the popular assembly (the comitia issued the lex) and certain magistrates (for example, praetor edicts), during the principate, by the senate and princeps, under the dominate, by the emperor (he issued constitutions, edicts, mandates, decrees ). Laws had to be published in order to take effect. Separately allocated codes, which appeared in the postclassical period of the development of Roman law (under the emperors Theodosius and Justinian). The application of the law by analogy was envisaged. The oldest law was Laws of the XII tables XNUMXth century BC. - an unsystematic casual record of ancient Roman customs, the main source of civil (quirite) law, in fact - the first monument of written Roman law. The adoption of the Laws of the XII Tables meant the weakening of the former positions of the pontiffs (clerical ancient Roman lawyers of the previous period), who for a long time retained the right to keep and interpret unwritten customs and laws, develop forms of lawsuits and abused this right. Although the Laws of the XII Tables provided for the use of oaths and the performance of other ritual actions, the law was already separated from religious norms and acquired a secular character. The laws of the XII tables were executed on 12 copper boards, exhibited for public viewing at the forum - the center of the political life of republican Rome. Knowledge of these laws was mandatory. They were presented in the form of brief imperative judgments and prohibitions, some of which bore the stamp of religious rituals. 2. Customs came out of the bowels of pre-legal society, were formed against the will of the legislator through the constant and prolonged repetition of certain norms of behavior, the creator of the custom is essentially the people. In the republican period, laws and customs had the same legal force; in the imperial period, the legal significance of customs decreased significantly. 3. Views of lawyers. The activities of lawyers have long had a significant impact on the development of Roman law, in the classical period (in the era of the principate), its law-making nature was also formally recognized by the supreme authority. The emperor (from the time of Tiberius) granted a narrow circle of prominent jurists (later, fragments from their works and sayings were included in the Digests), i.e. their resolution of controversial legal situations became sources of legal norms. In 426, by edict of the emperor Valentinian III, the writings of such jurists as Gaius, Papinian, Paul, Ulpian and Modestinus were generally given the force of law. 4. Judicial practice. The ancient Romans did not know the case law. The most important precedents were simply included in the praetor's edict, which was the law. The legal custom of the trial played a subordinate role. 4. Civil and praetor law. Roman magistrates In the structure of Roman private law, two main systems are distinguished - civil law (ius civile) and praetor law (ius honorarium). civil law - historically the first system of Roman law, the main sources of which are the laws (starting with the Laws of the XII tables) and the senatus-consultations of the republican period. The norms of civil law, created in the conditions of the patriarchal subsistence economy of the early period of ancient Roman history, eventually turned out to be not adapted to the developing commodity turnover, clearly showed their gaps and inapplicability. To rectify this situation, and was called upon praetor law. The position of city praetor was established in 367 BC. He had powers in court cases, in which Roman citizens were participants, he had the right to imperium (that is, in particular, he had the right to issue universally binding edicts and interdicts). In addition to the current praetor issued an edict for a year (i.e. for the entire term of his office). Usually the new praetor retained the norms of such a permanent edict of the previous praetor, corresponding to living conditions, supplementing them with something of his own. Over time, a certain legal array was formed, passing from edict to edict. In the II century. the jurist Julian (on behalf of the Emperor Hadrian) worked out the version of the "permanent praetor edict" (edictum perpetuum), which subsequently did not change and went down in history as the Julian edict. At the same time, praetor law did not abolish civil law. The latter simply ceased to operate in practice, became "dead", this manifested dualism of Roman law. For example, along with the institution of quirite property (according to civil law), there was the institution of bonitar property (according to praetor law). 5. Activity of lawyers. Forms of their activity At the initial stage of its development, jurisprudence wore a religious form (lawyers were priests-pontiffs). According to legend, a certain scribe Gnaeus Flavius \u304b\uXNUMXbin XNUMX BC. stole and made public the secret documents of the priests, since then jurisprudence in Rome has ceased to be the monopoly and secret of the priests and has become available to secular persons. For a long time, lawyers and other representatives of the parties were not allowed to the court session itself; the parties had to present their positions on their own. Also, lawyers were not formally hired for money (this was considered unworthy), their fees were considered gifts. The main forms of activity of lawyers in ancient Rome: 1. Agere - giving advice in the conduct of the trial. 2. Cabere - drawing up contracts (according to certain formulas). 3. Respondere - answers to citizens' questions. 4. Scribere - drawing up petitions, statements and other written documents. Lawyers occupied a high position in society, over time, with their actual activities, they began to create legal norms. Later, law education began to be carried out in private schools. Such works of Roman jurists as the "Institutions" of Gaius and "Sentences" of Paul became classics. Justinian's codification was carried out by the most prominent lawyers (under the leadership of Tribonian) in 528-534. at the direction of the most famous Byzantine emperor. The Code of Justinian (much later called Corpus iuris civilis) included the following components: 1. Institutions - a textbook on Roman law, containing its main provisions, divided into 4 parts: about persons, about things, about obligations, about claims. The Institutions of Justinian relied heavily on the Institutions drawn up in the XNUMXnd century BC. Roman jurist Gaius. Justinian said that the Institutions were created for the "education of the youth." 2. Pandects (Digests) - sayings of famous Roman lawyers (Papinian, Paul, Gaius, Ulpian, Modestin), containing essentially the rules of law, divided into 50 books. 3. Code (there were 2 editions) - a collection of more than 3000 imperial constitutions, divided into books and titles. 4. Novels - constitutions of Justinian himself, published after the famous codification. 6. Forms of civil procedure: legal action process The Romans did not formulate a single concept of a claim. Only separate claims arising from specific situations, based on specific obligations, were singled out. Sometimes Roman law is even called the "system of claims", because the Romans believed that without a claim there is no law. A claim as a means of satisfying a claim by a court decision is implemented in a civil process. In ancient Rome, there were no permanent specialized state judicial bodies. At first, judicial functions, among others, were carried out by certain magistrates; in the imperial period, these powers were assigned to certain officials. Arbitration was widely practiced. For a long time, the process existed as a personal one (that is, it required the direct participation of the parties in legal proceedings) and oral, it was full of formalities. The history of Roman law knows three different forms of civil procedure, consecutively replacing each other: legisaction, formulary, extraordinary. Both legisaction and formulary processes are divided into stages in ius and in iudicio, in contrast to the extraordinary process. Legislation process (from legis actio - act according to the law) - the oldest form of Roman civil process, provided for by the Laws of the XII tables. It was purely formal and solemn. The process was divided into 2 stages: in ius and in iudicio. At the in ius stage judicial functions were carried out by the magistrate (in ancient times the consul, later the praetor). The defendant already at this stage could recognize the claim, in which case the process automatically ended with the victory of the plaintiff. If the claim was not recognized, the magistrate called on witnesses to confirm the fact of the dispute (litis contestatio), after which the process became irreversible and had to end with a decision on the case. From that moment on, the rule began to operate: you cannot file a second claim on the same issue. After that, the magistrate formulated preliminary legal conclusions on the merits of the case for the judge to whom it was referred. At the stage in iudicio the case was heard by a judge (arbitrator) elected by the parties. He considered the evidence in the case and made a decision. The legisaction process did not imply an appeal against the adopted court decision. A claim in the legal action process could be filed only according to one of the following specific formulas: 1) using an oath (if the subject of the claim is a thing); 2) by requesting the appointment of a judge - by stipulation; 3) by claiming enrichment (if the subject of the claim is money); 4) by the laying on of hands. In such a case, if the plaintiff won, the defendant could be taken into bondage; 5) by taking over the debt. In this case, the plaintiff took possession of the defendant's thing and used it as a pledge (a form of securing a claim). This litigation formula was used only for the most important claims (for example, about sacred things). Legislation Roman civil process is a fairly pure example of an adversarial (accusatory) process. 7. The concept of formulary and extraordinary processes Legislation Roman civil process was a fairly pure example of an adversarial (accusatory) process. Over time, the praetor gained freedom in formulating the essence of the dispute ("formula") before the judge, which made it possible to provide all new categories of legal relations with legal protection. The judge was thus bound by the praetorian formula, which became the basis for the formation formulary process. He studied the facts of the case, but could not change his legal qualification, already given by the praetor in the formula. The transition from legal action to formulary process corresponded to the transition from civil law to praetor law. Praetor Formula - a key concept in the formulary process. The formula began with the appointment of a judge. The remaining parts of the formula were divided into mandatory and optional. Mandatory parts of the formula: 1. Intentio - the essence of the requirements and objections of the parties. 2. Condemnatio - legal qualification of the case. Optional parts of the formula: 1. Demonsratio - an additional explanation of the wishes of the parties (in complex cases). 2. Adiudicatio - provision by the praetor to the judge of additional legal opportunities (eg, division of the inheritance). 3. Exceptio - in this section, the Praetor notes the objections that the defendant could make against the claim (eg, exceptio doli - a reference to the intent of the plaintiff when concluding the contract). 4. Prescriptio - a clause that the price of the claim is not exactly set. Extraordinary Process (cognitive production) arose as the territory of the Roman Empire expanded. Judicial functions at that time began to be carried out not by elected magistrates, but by appointed imperial officials and military leaders - procurators of the provinces, prefects of cities, the head of the Roman police, and finally, the emperor himself. The judge conducted the process alone, heard the parties, examined the evidence, made a decision, carried out its execution; could reduce the claims (which is unusual for legalization and formulary processes). The main procedural act at that time was the eternal praetor (Yulian) edict. Over time, the extraordinary process from oral turned into written, acquired other features of the inquisitorial ™. In an extraordinary process, it was allowed to appeal against the adopted judicial decisions, while the highest court was, of course, the emperor. 8. The concept and types of claims. Limitation of actions Suit - the claim of the plaintiff to the defendant, filed through the established judicial procedure and subject to enforcement if satisfied. Every lawsuit contains material and procedural aspects. Claims are classified on the following grounds: 1. Personal (in rem - refer to the identity of the defendant) and real (in personam - aimed at claiming things, for example, vindication and negator claims). 2. Claims under civil law and suits under praetor law. 3. According to the distribution of the burden of proof: direct (everyone proves his claim); claims in which the plaintiff is exempt from proof; claims based on fiction (legal recognition of facts that did not actually exist); lawsuits by analogy (served as one of the means for lawmaking without changing the letter of the law). 4. By the nature of the claim: restorative (for satisfaction, that is, for the restoration of the violated state of property rights, such claims were also called repersecutory); penalties (on the collection of a fine); mixed (reipersecutory + free kick). Popular lawsuits (action popularis) were singled out separately. Such claims could be filed by any citizen, not only the one whose right was violated (for example, a claim about spilled or thrown away). Classical Roman law knew only something similar to what is now called statute of limitations, namely, the legal time limits for filing claims. The difference between the legal period and the limitation period is that the expiration of the legal period in itself, without any exception, terminates the right to claim, while the limitation period has an effect only due to the inaction of the plaintiff. For example, if there is no reason to immediately bring a claim (say, the plaintiff receives confirmation of his debt from the defendant), the limitation period is interrupted and the limitation period begins anew; the course of the legal period is not interrupted under any circumstances. The limitation period in the modern sense appeared in Roman law only in the 30th century, its term was set at XNUMX years. The beginning of this period is determined by the moment the claim arises. The statute of limitations may be suspended for as long as there are valid obstacles to bringing an action (eg absence on public business). After the removal of such an obstacle, the course of prescription continues. The limitation period may be interrupted (in particular, by the recognition of a claim by the obligated person, by filing a claim), in this case the elapsed time (before the interruption) is not taken into account, i.e. after that, only the course of a new prescription can begin. 9. Subjects of private law. The concept of an individual and legal capacity Subjects of Roman private law - persons who have legal capacity, i.e. the ability to have rights and bear responsibilities. There are individuals and legal entities. According to Roman law, an individual was recognized as fully capable if he possessed all three statuses. Full legal capacity in the field of private law consisted of the following main elements: ius conubii (the right to enter into a legal Roman marriage); ius commercii (the right to act as the subject of real and legal relations of obligations); testamenti factio (the right to bequeath and inherit property). Legal capacity arose from an individual from the moment of birth (however, a conceived, but not yet born fetus - a postum - could, under certain circumstances, be recognized as an heir). Birth was considered the separation of the born fetus from the mother, while the child must be born full-term and alive and remain so for a certain time (that is, a miscarriage was not recognized as legally capable), have a human appearance. According to Roman law, 3 statuses were established for an individual: 1. The status of freedom: those who possessed it were considered free, the rest were slaves. 2. Citizenship status: persons possessing it were considered Roman citizens, the rest - non-citizens. Non-citizens were divided into Latins (residents of Italian cities who received the rights of Roman citizenship after an allied war in the 212st century BC) and peregrines (foreigners who received Roman citizenship by edict of the emperor Caracalla in XNUMX). Latins and Peregrines had civil legal capacity within the framework of praetor law and the law of peoples. 3. Family status: persons with it were considered householders, the rest - subject. Derogation of civil legal capacity is expressed in the loss of one or more statuses of a person: marital status (for example, upon adoption); status of citizenship (automatically also family status, if it was), for example, when a Roman citizen was expelled from Rome (and, accordingly, deprived of his citizenship); the status of freedom (automatically also the status of citizenship and family status, if they were), - means the complete cessation of legal capacity. Other forms of derogation of legal capacity: 1. Infamia (diminution of civic honour) was appointed in the order of liability for certain offenses (for example, bad faith guardianship), was awarded for some claims (for example, from contracts of agency and partnership), was applied in case of violation of certain norms of marriage and family law (for example, , bigamy). A person subjected to infamia could not perform a number of public functions (for example, be a guardian). 2. Intestabilitas were subjected to persons who refused to confirm the validity of a civil transaction if they participated in it as witnesses or weighers. The consequences are similar to those of infamia. 10. Legal status of Roman citizens. legal capacity Only persons with citizenship status, i.e. Roman citizens were subject to civil law. Citizenship was acquired by virtue of birth (from a Roman marriage), by virtue of liberation from slavery (if the master was a citizen, the rule was that the freedman received the same status as his master had), by virtue of the adoption of a foreigner by a Roman citizen, by virtue of granting a person citizenship by the Roman state. Citizenship was lost due to voluntary refusal when moving from Rome (as well as during expulsion), when a person was turned into a slave. In addition to legal capacity, legal capacity is distinguished, i.e. the ability to exercise rights and fulfill obligations through one's actions. Persons under the age of 6 were absolutely incompetent. At the age of 6-14 years (6-12 years for girls) a person could make only those transactions that entail the enrichment of a minor. Upon reaching the age of 14 (12 years for girls), a person was recognized as fully capable. At the same time, guardianship could be established over persons under the age of 25; according to their transactions, they could request restitution from the praetor. Roman law also limited the legal capacity of the mentally ill and spendthrifts, as well as women. guardianship and guardianship - legal constructions, with the help of which the lack of legal capacity of persons for one reason or another was replenished. In this case, a person was appointed to assist incapacitated persons and persons with limited legal capacity in the implementation of transactions and the protection of their rights and legitimate interests. Sometimes guardianship and guardianship were also appointed in relation to capable persons, but with incomplete legal capacity (for example, in relation to adult domestic subjects). Guardianship (fufe/a) was established over minor children and women. Guardianship (whitefish) could be established over persons from the age of majority until they reached the age of 25, as well as over squanderers and the mentally ill. The guardian himself performed legal actions for the ward or gave consent to their commission by the ward immediately at the time of their commission. The trustee could give consent to the ward for the commission of a legal act both before and after its commission. Guardianship (guardianship) could be appointed either by will or by law (by the decision of the praetor, approved by the court). The guardian (custodian) must act in the interests of the ward. He is responsible for this, secured by appropriate claims (for example, from the side of the ward released from custody). If the guardian (custodian) was appointed by the state (magistrate), it retained the right to control his activities to protect the interests of the ward in a certain order. 11. Legal status of slaves Slaves did not have legal capacity, they were not subjects, but objects of law, things. However, there were still certain glimpses of the recognition of the human personality of a slave as a right (in particular, the burial place of a slave, like any person, was considered sacred). The position of slaves during the period of the late republic and early empire was especially difficult. For example, in the 9th year, a senatus-consultant was adopted, establishing that when the master was killed, all slaves who were with the master and did not come to his aid were subject to the death penalty. At the same time, a slave could represent the interests of a citizen (his master) in civil circulation, but only if the transactions were made for the benefit of the master. Until a certain time, the master was not responsible for transactions made by his slaves (that is, the slaves entered into obligations in kind that were not protected by claims, because there was absolutely nothing to ask from the slave himself). Later, praetor law still recognized the responsibility of the master for the actions of slaves on his behalf, the obligations entered into by the slaves (for example, managers, ship captains) on behalf of the master began to enjoy claim protection. In the classical period of the development of Roman law, the masters began to allocate separate property to their slaves for independent management - peculia. The responsibility of the master for the obligations entered into by the slave was limited to the size of the peculia of this slave (if the master did not acquire anything directly from this obligation), for this the praetor gave a special action de peculio. After the death of a slave, the peculium was usually returned to the possession of the slave owner, when the slave was freed, the peculium was often left to him, although the general rule remained that the peculium was part of the property of the owner of the slave to whom the peculia was given. Slavery was established by birth (from a slave mother) or by acquisition. In the latter case, captives who fell into debt bondage (at an early stage in the development of Roman law), who evaded conscription into the army, as well as thieves caught red-handed, and criminals sentenced to death or indefinite work in mines, became slaves. In addition, a woman could be enslaved for having sex with a slave. Slavery ended mainly in connection with the death of a slave. However, manummission (i.e. granting a slave the status of freedom) was also possible. Manummission could be carried out both according to civil and praetor law. At the same time, even after the manumission, the freedman retained a certain legal relationship with his former master (patronage), under certain conditions (disrespect for the patron, interpreted very broadly), he could even be enslaved again. In addition, slaves were sometimes freed on the basis of a decision of the competent state authorities (for example, by edict of the emperor). 12. Legal entities The term "legal entity" itself did not exist in Roman law; it was formulated only by medieval glossators. As participants in private legal relations, Roman sources often mention organizations (for example, colleges, usually formed on a professional basis). All norms about colleges proceed from the fact that this organization acts like a natural person, i.e. is a full-fledged subject of private law. Members of the board may change, which, however, does not change the personality of the board. Some Roman colleges have existed for centuries. Thus, a legal entity does not depend on those individuals who participate in its activities. The collegium has its own membership, certain rules formulated in the statutory documents, as representatives of the collegium in civil circulation, its authorized governing bodies act. The college has its own separate property, formed from the contributions of its members. The Board could make transactions and, accordingly, was responsible for them. The Romans laid the foundations for the division of legal entities into types. The most ancient were legal entities of a corporate type, based on membership: collegiums, workshops, municipalities. Boards (for example, priestly) were the oldest of them, they were created for various non-commercial (social) purposes, i.e., in modern legal language, they had the status of public associations. Workshops - professional non-profit associations of persons engaged in any one specific type of fishing. Municipalities were formed during the republican period and at the beginning of the principate in the cities, which were granted the special status of a self-governing territorial corporation. In this case, the members of the municipality were all the inhabitants of the city. Corporate legal entities were based on the democratic principle: the activities of the corporation are determined by its members, who, in particular, adopt the charter and form the governing bodies. For commercial activities, the relevant agreement created partnership, which is not a legal entity. The personal composition of the partnership remained unchanged and was determined by the partnership agreement; if its personal composition changed, the agreement should also be changed. A variable composition without changing the contract was possible only in a partnership of tax-farmers. In addition to corporations, there were also institutions based on the separation by one person of a part of his property, managed by an official appointed by the owner. Historically, the first institution was the imperial treasury (fisk), which was managed by a person specially appointed by the princeps for this purpose. The activity of the fiscus was regulated not by public, but by private law, i.e. it was precisely not a state body, but a legal entity - an institution (in this case, the founder was the emperor, because formally the fisk was considered to belong to the princeps as an individual and a Roman citizen). 13. Ancient Roman family. Agnatic and cognatic kinship Initially, in ancient Rome, kinship was also determined by subordination to the householder (paterfamilias). All who were subject to the authority of one head of the family, regardless of the presence of blood ties between them, were considered relatives. Such kinship was called agnatic, and relatives who were in such a relationship - agnates. Therefore, a daughter who married and came under the authority of a new householder ceased to be an agnatic relative of her father, brothers, and vice versa, an outsider, adopted by a householder, became his agnat. The withdrawal from the power of the paterfamilias terminated all legal ties between the person concerned and his former family, since in ancient times the fact of blood descent had no legal significance if it was not combined with being under the authority of the father-household. With the development of economic relations and the weakening of patriarchal foundations, the so-called cognate kinship (cognatio) - consanguinity based on common origin, which in the end completely replaced the agnatic relationship. With regard to cognate kinship, lines and degrees are distinguished. A direct line of kinship connects persons descending sequentially from each other, for example, father, son, grandson. The lateral line unites persons who have a common ancestor (brother and sister, uncle and nephew). A straight line could be ascending and descending, depending on whether it was drawn from descendants to an ancestor or from an ancestor to descendants. The degree of relationship was determined by the number of births by which the compared persons are separated from each other. Births were counted from a common ancestor. For example, brother and sister are related to each other in the second degree. At the same time, full-blooded ones are distinguished among brothers and sisters, i.e. descended from common parents, and half-blooded, who could have a common father (half-blooded) or a common mother (half-blooded). Property was distinguished from kinship as a relationship between the husband and the wife's relatives, between the wife and the husband's relatives, or between the relatives of both spouses. Property, like kinship, was differentiated by degrees corresponding to the degree of kinship between the spouse and his relative, the degree of property with which was determined. Degrees of relationship mattered in inheritance and marriage, since marriage between close relatives was not allowed. This prohibition also extended to close degrees of property. 14. The concept and essence of marriage, its types The family is formed through marriage. The classical jurist Modestin defined Roman marriage as "the union of a man and a woman, the union of all life, the community of divine and human law." This idealistic interpretation of marriage did not correspond to the real state of affairs: even in the classical period, a woman was far from being an equal partner of her husband. According to some researchers, this general understanding reflected the subordination of the regulation of marriage and family ties to legal norms of twofold origin: as a manifestation of the requirements of "human law" the marriage union is subject to the establishment of civil law, as a manifestation of the requirements of "divine law" the marriage union must meet the highest prescriptive requirements of moral and of a religious nature, presupposed by human law. Until Justinian, Roman family law distinguished between matrimonium iustum, a legal Roman marriage between persons with ius conubii, and matrimonium iuris gentium between persons without such a right. In pre-Justinian law, they distinguished two types of marriage. first view there was a marriage cum manu mariti, i.e. marriage with husband's authority, by virtue of which the wife came either under the authority of the husband, or under the authority of the householder, if the husband himself was a subject. Entering into such a marriage inevitably meant the capitis deminutio minima of the wife: if before marriage the wife was persona sui iuris (in her own power), then after marriage sit tapi (in someone else's power) she became persona alieni iuris. If before marriage she was under the authority (in potestate) of her father, then, having entered into this type of marriage, she fell under the authority of her husband or his paterfamilias, if the husband was under the authority of the father, and became the agnat of the husband's family. Second type of marriage - sine manu mariti, in which the wife remained subject to the former householder or was an independent person. Outwardly, this type of marriage is similar to concubinage, but unlike the latter, it had a special intention - to found a Roman family, to have and raise children. Marriage sine manu had to be renewed annually. Having lived for a year in her husband's house, the wife automatically fell under his authority - by prescription. By the laws of the XII Tables, it was determined that a woman who did not want her husband to establish power over herself by the fact of long-term cohabitation had to leave her house for three nights every year and thus interrupt her year-long long-term possession. Creating a different system of relations between husband and wife, the sit tapi marriage and the sine manu marriage differed sharply from each other in the order of conclusion and termination. The marriage of the Sit Tapi required the observance of certain rites, it was a formal act. Marriage sine manu was an informal act. This type of marriage was considered as some actual state. At the same time, certain legal consequences were associated with it. 15. Conclusion and termination of marriage. concubinage Legal prerequisite for marriage there was a supposed ius conubii (the right to enter into a legal Roman marriage) in the person who entered into it. Prior to Justinian, on this basis, certain categories of foreigners (persons who did not have the rights of Roman citizenship) could not enter into a legal Roman marriage. According to the legislation of Justinian, when almost all subjects of the Roman state had the rights of Roman citizenship, the absence of a conubium could be the result of a close relationship or property between persons wishing to marry. The actual marriage breaks up into two separate events in their legal meaning: the betrothal and the subsequent marriage ceremony. In ancient times, the betrothal of subjects (alieni iuris) was performed by their paterfamilias without the participation of the physicians. Later, the betrothal was performed by the bride and groom with the consent of the paterfamilias of both. In the later period, a unilateral refusal to marry after the betrothal gave the other party the right to demand compensation for the damage caused. The main moment of the actual conclusion of marriage, which created all the consequences of a personal and property nature provided for by law, was recognized as taking the wife to her husband's house; all other ritual procedures only symbolized marriage, but were not considered formal conditions for the onset of marriage. With the development of law in ancient Rome, there was a process of withering away or weakening the role of old forms of marriage. Parallel to this was the adoption of informal marriage through a simple agreement between a man and a woman to live together. Procedure termination of marriages sine tapi and sit tapi were different. The first could be terminated not only by agreement of the spouses, but also by the free will of one of the parties. Divorce during the marriage of Sit Tapi could occur only at the initiative of the husband. Marriage is to be distinguished concubinage, those. legally permitted permanent (and not accidental) cohabitation of a man and a woman, which, however, does not meet the requirements of legal marriage. Concubin did not share the social position of her husband, and children from such cohabitation did not fall under his patria potestas (paternal authority). Despite the fact that, in general, the Roman family was monogamous, a man in the Republican era could be legally married to one woman and simultaneously in concubinage with another. 16. Fatherly power Paternal power (patria potestas), initially unlimited, gradually softened with the development of ancient Roman society. The main reason for this was the disintegration of the former peasant family (in connection with the development of slave-owning farms), the development of crafts in the cities: the sons are increasingly leading independent households. Along with this, sons acquire an independent position in the standing army and in the state apparatus, and even before they reach old age. Ways to establish paternal authority: 1. The birth of a child from these parents who are legally married. 2. Legalization (a father legitimizes his son born out of wedlock): 1) subsequent marriage of the parents of an illegitimate child; 2) by obtaining an appropriate imperial rescript; 3) by enrolling an illegitimate son as a member of the municipal senate, marriage of an illegitimate daughter to a member of the municipal senate. 3. Adoption. It was possible to adopt a person who was under the authority of another householder, or a person who was not subject. In the field of property relations subservient children were early admitted to transactions on their own behalf. But all rights from such transactions arose for the householder. In case of committing a delict by the subject, the victim was given a noxal claim. In republican law the subjects did not have their own property: everything belonged to the owner. In the classical period, subject children began, like slaves, to allocate peculium (peculium). In addition to the peculia received from the father, the institute of military peculia appeared, i.e. property received by the son in military service or in connection with it (salary, military booty). Later, the legal status of the peculia was extended to all kinds of acquisitions of the son, made in the state, court, spiritual and other service. During the period of absolute monarchy, the subject was also recognized as the right of ownership of property acquired from the maternal side. Grounds for the termination of paternal power: 1. Death of the householder or subject. 2. Loss of liberty or citizenship (capitis deminutio maxima or capitis deminutio media) by a householder or subject. 3. Depriving the householder of the rights of paternal authority (for example, if he leaves the subject without help). 4. Acquisition of an honorary title (eg, consul, bishop) by subordinates. 5. Emancipate, i.e. the release of the subject from the power of the householder (in the form of a civil law mancipation or using the judicial powers of the praetor). Emancipation could be canceled in case of ingratitude of the former subject. In Justinian law, emancipation was accomplished: 1) by receiving an imperial rescript, which was recorded in the minutes of the court; 2) the application of the householder, entered in the minutes of the court; 3) the actual provision for a long time of an independent position to the subordinate. 17. The concept and types of property rights. Emphyteusis and superficies Such a right is called real, which provides its bearer with the opportunity to directly influence the thing, in other words, the subject (object) of such a right is a thing. Property rights are absolute (enjoy absolute protection), i.e. is protected by a lawsuit against any violator of the right, no matter who it turns out to be (action in rem). Property rights are characterized by the following properties (the property right follows the thing) and advantages (over the law of obligations, for example, the right of claim provided with a pledge is subject to preferential satisfaction). Types of rights in rem The classification of property rights into real and liability rights is not mentioned by the Roman lawyers themselves. At the same time, they distinguished between real claims (actiones in rem, arising from rights in rem) and personal claims (actiones in personam, arising from rights of obligations). Property rights include the right to property and rights to other people's things. The last group includes: 1. Easement law (servitude). 2. Pledge right (right of pledge). 3. emphyteusis - the real right of long-term, alienable, hereditary use of someone else's agricultural land for a fee. This legal institution was borrowed by the Romans from ancient Greek law, and was used to lease land in the Roman provinces. Emphyteusis could be inherited, it could be alienated in a different way. The owner of emphyteusis (emphyteut) had possessive protection, was obliged to monitor the fertility of the soil. The owner of such a land plot received an annual payment (canon) for it, had the opportunity to return the specified land plot to his possession, but not arbitrarily, but only if the emphyteut violated the conditions for using the land plot (worsened it or did not pay the canon) or he himself waived his right . When selling a plot, the emphyteut was obliged to notify the owner of the land, who could exercise his right of first refusal within two months. 4. superficies - real right of long-term, alienable, hereditary use of a building on someone else's urban land plot for a fee. This is an original ancient Roman legal institution concerning the right to develop an urban land plot (primarily the construction of a residential building on it). The owner of the superficies (superficiaries) did not become the owner of the house he built on someone else's land, but he had the right to own, use and limitedly dispose (with the permission of the owner of the land) the said house. In general, the legal status of superficies is similar to the legal status of emphyteusis (this applies, in particular, to its compensation). 18. Classification of things The division of things into mancipable (res mancipi) and non-mancipatory (res pes mancipi). Mancipated in the republican period included the most agriculturally valuable things (Italian lands, working cattle, slaves, land servitudes), when they were alienated, such a special institution of civil law as mancipation was used. All other things were unmancipated. Depending on turnover things are subdivided into those in civil circulation (in commissio) and those withdrawn from civil circulation (for example, roads, flowing reservoirs). Things bodily (res corporalis) and incorporeal (res incorporate, for example, easements and claims). The division of things into movable (res mobiles) and immovable (res immobiles) replaced the division into mancipable and non-mancipated. Individually defined things (species) have signs enshrined in law, with the help of which they can be distinguished from among all other things, they are legally irreplaceable, their death terminates the obligation on their behalf. Things defined by generic characteristics (genus), are defined through a generic attribute (grain, wine, oil) and are described by number, weight or measure. Such things are legally replaceable, their death does not terminate the obligation in respect of them. Items Consumed die as a result of one act of using a thing (food), are "consumables". They cannot be rented out. Things that are not consumed can be used several times with the preservation of the original substance (land). Things are simple and complex. First of all, stand out divisible and indivisible things. A part of a divisible thing does not change its substance (for example, wine, the cup of which has the same substance as the jug). A part of an indivisible thing does not have the qualities of a whole (for example, a slave, if cut into pieces, will obviously be good for nothing). If an indivisible thing was in the common ownership of several persons (for example, as a result of inheritance), it was awarded to one of the persons, who paid to the other (others) the shares of its value due to him. Simple things do not have parts (that is, they are indivisible; for example, the same slave). Complicated things in principle, they consist of various parts, but the parts in themselves have no such value as the whole thing taken together (for example, some kind of complex mechanism). subordinate thing (belonging) serves as the main thing, which, in turn, cannot be adequately used without the subordinate (eg, the main thing is a lock, belonging is a key). public (res publica, e.g. public roads and amphitheatres), tied (res nullius, e.g. fish in the water, wild animals in the wild, mushrooms in the forest) and public (res communia omnium, e.g. flowing water, air, sunlight) things. 19. The concept and content of property rights. Types of property Property rights - the most complete dominance over a thing (plena in re potestas), the broadest real right, according to the general rule for the Romans, this dominance was unlimited. The right of ownership is considered as an absolute, real and perpetual (eternal, as long as the corresponding thing exists) right. For the first time, the concept of property rights was formulated by the Romans in the Laws of the XII Tables, and the Roman construction of this legal institution is still largely used today. At first, the personal element prevailed in the right of ownership (it was designated as dominium), then the real nature of this right (proprietas) was emphasized. In the modern construction, the right of ownership includes the following elements: possession, use and disposal. The Romans developed the concept of the elasticity of property rights. This means that if it was limited (for example, by a servitude or usufruct), then due to the disappearance of the basis for restriction (for example, the death of the usufructuary), it is restored to its original absolute limits. Types of property under Roman law: 1. By legal basis: kvirite (according to the Laws of the XII tables), bonitary (according to praetor law), provincial (according to local laws and customs). 2. Depending on the number of owners per thing: individual, common. It is also possible to single out the property of the Latins (residents of Italian cities received the rights of Roman citizenship after the allied war in the 212st century BC) and peregrines (foreigners who received the rights of Roman citizenship by edict of the emperor Caracalla in XNUMX). Latins and Peregrines had civil legal capacity within the framework of praetor law and the law of peoples. In case of common ownership, a single ownership right to a thing simultaneously belongs in certain shares to several persons (co-owners). Usually, common property arose as a result of the inheritance of an indivisible thing (for example, a slave) by several heirs. Another basis for the emergence of common shared ownership is the mixing of homogeneous loose items (for example, grain belonging to different persons was poured into one warehouse). Classical Roman law assumed that each of the co-owners could freely dispose of the common property, however, in the postclassical period, this right was significantly adjusted: each of the co-owners could only dispose of the common thing within the limits of their share. 20. Possession Ownership - actual (contact with the thing) or economic (the ability to always get the actual) domination of the person (owner) over the thing. The legal category of possession (posessio) made it possible to externally record the belonging of a thing to a specific person at a specific point in time. The Romans viewed ownership as both a right and a fact. Ownership and holding. In addition to dominance over a thing (corpus posessionis), possession also requires the will (intention) of a person to own a thing for himself (animus posessionis). If there is no such will, then we are talking only about holding. According to Roman law, holders were tenants, custodians and other persons who possessed a thing, but who had no intention of owning a thing for themselves (on their own behalf). Dependent holders did not enjoy possessory protection; only the owner of the given thing had this right. Thus, possession and holding, which do not differ in fact, were significantly distinguished in the legal sense. Types of possession: legal and illegal possession, good faith and bad faith 1. Legal (titular) and illegal (no title), the latter could be conscientious and unfair. In good faith, titleless possession in Roman law is recognized in cases where the owner does not know and should not know that he does not have the right to own the thing (for example, a person who acquired the thing from an owner in bad faith who did not know about his bad faith). An example of an unscrupulous owner is a thief. Only a conscientious owner could acquire the right of ownership by prescription, his liability was mitigated in the event of a claim by the owner of the thing. 2. Civilized possession, praetorian possession, sometimes also allocate possession by the law of peoples (ius gentium). Characteristic features of the process of possession of a thing. Difference between possessorium and petitorium. Praetor Interdicts. Fair Possession Protections The possession of a thing was protected with the help of a petitor or possessory (interdict) process. In the petitor process, it was necessary to prove the right to own the thing, which often turned out to be difficult. In the possessory process, in fact, not a claim was filed, but an interdict. In this case, it was necessary to prove only the fact of possession of the thing and the violation of this possession by the defendant. The possessory process was a simplified procedure for possessory protection, which was based on the presumption of the legality of previous possession, which in practice turned out to be true in the vast majority of cases. Types of possessory interdicts (interdict): 1. By purpose: aimed at retaining possession and aimed at returning possession. 2. According to the method of the alleged return of the thing: aimed at forcibly taking away the thing (if the offender himself took the thing by force) and aimed at voluntary return of the thing (if the thing was with the offender not as a result of the use of violence, for example, on a lost ground). 21. Initial ways of acquiring ownership Initial Ways (legal grounds) for acquiring ownership: 1. Making new things (using your own materials). 2. Getting fruits and income from their things. 3. Occupatio - occupation (capture of nobody's things), a treasure is allocated separately (later a rule was established that in this case half should be given to the owner of the land). 4. Connection (mixing) of things. As a general rule, if the connected things cannot be separated without damage to them, the owner of the main thing becomes the owner of the secondary thing (for example, the owner of a land plot acquires the right of ownership of a tree planted on his plot). When loose bodies are mixed, common property arises. 5. Specificatio - specification (processing) of a thing. In the legislation of Justinian, it was established that if a manufactured thing can be returned to its original state without much damage, then it belongs to the owner of the material. Otherwise, it becomes the property of the processor, who is obliged to reimburse the owner of the material for its cost. 6. Alluvium. 7. Acquisitive prescription (usucapio) - the original way of acquiring the right of ownership, which boils down to recognizing the owner of the person who actually took possession of the thing in good faith within the period established by law and under certain conditions. According to the Laws of the XII Tables, the acquisitive prescription was set at 2 years, and for other things - only a year. The only additional condition for acquiring ownership by prescription was that the thing acquired in this way should not be stolen. By the time of Justinian, the following conditions for acquiring ownership by prescription were fixed: 1. Actual possession of the acquired thing. 2. Good faith ownership. 3. Legal basis for possession. 4. The statute of limitations for movables is 3 years, for real property 10 years (if the acquiring by prescription and the person threatened by the statute of limitations live in the same province) and 20 years (if the said persons live in different provinces). 5. The ability of a thing to acquire by prescription, in particular, it was impossible to acquire by prescription (as well as in other ways) things stolen and withdrawn from civil circulation. 22. Acquisition of property rights under a contract, protection and termination of property rights Acquisition of property rights under a contractMancipation (mancipatio) - a solemn rite of transfer of a mancipated thing. Mancipation assumed the presence of a transferred thing or its symbol (for example, a clod of earth from a transferred land plot) and consisted in pronouncing special formulas in the presence of five witnesses and a weigher, weighing metal (copper) on the scales and other formal procedures of ancient origin. Rights to manipulable things could also be assigned by means of sham trial (in iure cessio). By the time of the absolute monarchy, the division of things into manipulable and non-manipulable had lost its meaning, and tradition (traditio) became the main way of transferring property rights by contract. Tradition - a method of acquiring ownership, which consists in the transfer by one person to another of the actual possession of a thing in order to transfer ownership of this thing. Tradition as a way of acquiring property rights assumed the following items1) transfer of ownership of the thing to the acquirer at the will of the alienator; 2) legitimation for the transfer, i.e. the person transferring the thing must have the right to alienate it (usually such a right belongs to the owner, but it may also be, for example, the pledgee); 3) agreement of the parties that the possession of the thing is transferred in order to transfer the right of ownership to the transferred thing (and, for example, not for holding when concluding a storage contract); 4) there should be no legal prohibition for the transferor of the thing to alienate it (for example, the husband was not entitled to alienate the property he received as a dowry for his wife). Protection of property rights. To protect property rights, vindication and negator claims were developed. Vindication claim is a claim by the owner for the return of possession of the thing. In this lawsuit, the owner proves his right to the thing. If the claim is satisfied, the owner must return the disputed thing to the owner, with all the fruits and income from it. The defendant is liable for the deterioration of the property, but may demand compensation from the owner for his necessary expenses for the maintenance of the property while it was with him. negatory lawsuit associated with encroachments on the right to use and the right to dispose of a thing belonging to the owner. It was applied in all cases of difficulty in using and disposing of a thing owned by a person acting as a plaintiff in a negatory claim. In order to protect the acquirers of the right of property by tradition, they were given a Publician suit (with the fiction that the right of such an acquirer was based on the prescription of possession, even if the corresponding period had not yet been reached). Termination of ownership. The loss of the right of ownership could be in the event of the death of a thing (for example, when withdrawing it from civil circulation), the owner’s refusal of this right, or in the event of deprivation of the right of ownership without the will of the owner himself during the confiscation of the thing, the establishment of the right of ownership by the prescription of possession by another person, in some other cases. 23. The concept, types, meaning and content of easements Servitude - limited right to use someone else's thing. The owner of a thing encumbered with an easement is obliged to tolerate the use of his thing by another person (other persons). Servitude relations connect the owner of the thing and the user under the servitude indirectly, through the thing burdened with the servitude (serving thing). As a general rule, an easement is supposed to be free, but the owner could demand reimbursement of his expenses related to its provision. A servitude cannot consist in the commission by the owner of a serving thing of any positive (active) actions, he must only passively endure the actions of the owner of the servitude right. In the event of a conflict between the servitude and the right of ownership, the latter is inferior to the servitude. personal easement given to a particular person, terminates with the death of the person to whom it belongs. Inheritance of a personal easement (as well as any other disposal of it) is not allowed. Types of personal easement: 1. Usufruct - the right to use (for life or urgent) with the extraction of fruits (usually parents had usufruct on the property of children), while preserving the substance (essence) of the thing intact. The person using the usufruct was called the usufructuary. The usufructuary had the right to sublease the object of the usufruct to third parties. The usufructuary was obliged to take good care of the thing, to compensate for the damage caused to it, in case of bringing the thing into disrepair or when using his right in excess of the permitted, to reimburse the costs of the thing. The usufructuary was forbidden to alienate and transfer the usufruct by inheritance; with the death of the usufructuary, the usufruct ceased and the thing passed to the owner. 2. Usus - the right to use (for life or urgent) without extracting the fruits (the fruits could be used, like a thing, to the extent of one's own needs, but not disposed of), also with the preservation of the original substance. The person using the usus was called the usuary. The usuary was bound and limited in the same way as the usufructuary. 3. habitation - the right to live in someone else's house (or a specific part of it). 4. The right to use labor force another's slave or animal (without extracting the fruit). Land (predial) easement does not depend on the personalities of the owners of things that dominate and serve in the servitude of things. Depending on the nature of things, among the land servitudes, urban and rural servitudes are distinguished. A land servitude was usually established in order to correct the natural shortcomings of a dominant thing at the expense of an employee (for example, there is no water on the dominant plot, so it is drawn from a neighboring plot of land serving under the easement), usually between adjacent land plots, to ensure the constant need of the dominant plot. Some city servitudes dealt with issues of interaction between buildings (for example, the right to lean the wall of one's building on a neighboring building). Rural servitudes concerned, for example, the right to pass or drive livestock through a neighboring land plot, to conduct water to one’s own plot, etc. 24. Pledge and its forms Bail - one of the ways to secure obligations, in which a certain thing is allocated from the pledgor's property, on which the right of pledge of the pledgee is established. If the debtor fails to fulfill the obligation to secure which the pledged thing was transferred by him, the pledgee (secured creditor) shall have the right not only to use the pledged thing, but also to dispose of it. The pledge right always belongs to the creditor of a particular debtor (the pledgee). Third parties could also give things as collateral for the debtor. The right of pledge and the right to claim the performance of an obligation belong to one person - the creditor under the obligation (the pledgee under the right of pledge). fiduciary sale - the debtor or a third party sells the thing to the creditor for ownership so that, provided that the debtor fails to fulfill his obligation, the thing remains in the ownership of the creditor. If the debtor fulfilled his debt, the creditor sold the thing back to the pledgor. Manual mortgage - the pledged thing was transferred to the pledgee not in ownership, but only in possession, as a general rule, without the right to use it. In other words, the pledged thing was no longer sold to the pledgee, but transferred to him for safekeeping. A manual pledge can be effectively used if the pledged thing does not need to be used (maintained), because the pledgee is not obliged to make any efforts to maintain the thing in proper condition, to make any expenses for this (for example, he may simply not feed the thing transferred to pledge a pet, and then return only its corpse). In addition, neither the pledger nor the pledgee had the right to use the thing. Mortgage - pledge with leaving the pledged property with the pledgor (pure pledge). The pledge right of the pledgee consists only in his ability to dispose (within limited limits, in the event of default by the debtor of the obligation) of the pledged thing. Mortgages made it possible to freely pledge almost any thing without any particular economic difficulties for the mortgagor. At the same time, in the case of a mortgage, certain claims opportunities arise for the pledgee, as well as for third parties entering into private law relations with the pledger regarding the pledged thing, who are unaware of its encumbrance, i.e. the thing could be re-pledged if the pledgor was in bad faith. Therefore, the principle of seniority of pledge was introduced - priority was given to the satisfaction of the pledgee, whose right to the pledged thing arose earlier. In order to avoid multiple mortgages resulting from the abuses of unscrupulous mortgagors, the Romans came close to the institution obligatory state registration of pledge rights to things. In some large cities, such registration even existed, but only on an optional basis, while the registered lien was considered older than the unregistered one, even if it arose later. 25. The concept, elements and grounds for the emergence and termination of obligations By virtue of an obligation (obligation), the debtor (obliged person) must perform certain actions in favor of the creditor. The active nature of these actions makes it possible to distinguish an obligation from a property right. There are two sides to an obligation: the creditor has the right to claim, and the debtor has the obligation to fulfill the lawful demands of the first. Any obligation must be secured by a claim. The above does not apply to natural obligations (for example, on transactions of slaves and subjects at the initial stage of the development of Roman law). The fact of the existence of a natural obligation could be used in the defense of a claim, but the claim does not follow directly from a natural obligation. At the same time, a natural obligation contains all other essential features of other obligations. Elements of a commitment - sides, content, subject. Parties to the obligation - creditor and debtor. Content of the obligation - the right of claim regarding the subject of the obligation from the creditor and the corresponding obligation of the debtor. Subject of obligation is the thing about which the obligation arises. A commitment can contain multiple items. For example, in an obligation from a contract of sale (as in all obligations from onerous contracts) there are two subjects: a commodity and a purchase price. Grounds for the emergence of obligations: 1. Contract, i.e. agreement between persons. 2. Tort, i.e. offense. 3. Like a contract - unlike a contract in the proper sense of the word, there is no agreed expression of the will of the parties, it is implied (for example, conducting other people's affairs without an order). 4. Quasi-delict - unlike a delict, in a quasi-delict the identity of the offender is not clear (for example, a quasi-delict about poured or thrown away, according to which the owner of the house from which they poured or thrown out can be held liable, even if he is not guilty). With the normal development of civil law obligation terminated its execution. In addition to proper performance, an obligation under Roman law was also terminated by novation and offset. innovation An agreement was called by which an obligation existing between the parties was terminated by establishing a new one instead, while the novation changes any element of the terminated obligation. RџSЂRё offset the obligation is terminated by repayment by a counter claim. Initially, the right to set off was granted only to bankers to set off the mutual claims of their clients. A set-off of mutual claims from the same contract was also applied. In Justinian law, there were the following conditions for terminating the obligation by offsetting. Claims to be credited must be: counter, valid, homogeneous, mature (i.e. comparable in terms of established deadlines), clear. 26. Classification of obligations in Roman law The main classification of obligations in Roman law was carried out precisely on the basis of their occurrence; contractual, tort obligations, as well as obligations from, as it were, contracts and quasi-delicts were singled out respectively. Transactions are unilateral and bilateral. Contracts and pacts There are unilateral transactions (one party has only a right, the other has only an obligation, for example, a loan agreement) and bilateral (for example, a sale and purchase agreement). The second group includes contracts - the most common basis for the emergence of an obligation in practice, is an agreement (coordination of the will) of equal and independent subjects of law, based on the fundamental principles of freedom of contract and equality of the parties (contracting subjects). Treaties are also called multilateral transactions. In Roman law, contracts (verbal, literal, real and consensual) and pacts stand out among the contracts. Contracts. - contracts recognized as civil law (first of all, provided for by the Laws of the XII tables), suitably provided with a claim protection. In accordance with Guy's classical classification, there are the following types of contracts: 1. Verbal (oral), for example, extremely formal stipulation, an archaic basis for the emergence of a unilateral obligation. 2. Literal (written), before the classical period, oral agreements were drawn up with their help, the corresponding entries (for example, on the occurrence or repayment of a debt) were simultaneously entered into the income and expense books of the creditor and the debtor. Later, literal contracts were issued as promissory notes in the third person (syngraphs) or in the first person (chirographs). 3. Real - the obligation arises as a result of the actual transfer of the thing. 4. Consensual - an obligation arises due to the achievement by the parties of a certain agreement, regardless of the fact of the transfer of the thing or the absence of it. pacts were informal agreements and therefore were not initially enforceable under civil law. In the Praetor Edicts, the party to the pact had the right not to bring a claim, but only to refer to the pact as an objection. Subsequently, some pacts also received claim protection, so there was a division of pacts into "dressed" (provided with claim protection) and "naked" (without claim protection). 27. The evolution of Roman contract law, its service role The evolution of Roman contract law, as it developed and the social relations regulated by it became more complex, was carried out in two main directions. Firstly, new types of contracts appeared (the so-called "nameless contracts" that were not included in Guy's classification), and secondly, the number of pacts equipped with claim protection ("clothed" claims) increased. Unnamed contracts appear in the XNUMXst - XNUMXth centuries. due to economic necessity. An unnamed contract acquired legal force after one of the parties had already fulfilled the obligation assumed under such a "non-standard contract". A separate type of nameless contract was the "evaluation contract": a thing defined by generic characteristics was transferred to the other party in a certain assessment for subsequent sale in the amount of the assessment or return. The pacts received legal protection in the following ways: 1) protection by a claim of the main contract to which the pact was attached; 2) granting an action to the pact on the basis of a praetor's edict (for example, the praetor granted action to an arbitrator agreement); 3) granting the pact of claim protection by imperial legislation (for example, a donation agreement "in order to show generosity"). Service role of Roman contract law. Unilateral and synnalagmatic treaties If the ancient formal strict law contracts were unilateral (i.e., the contract authorizes one and obliges another counterparty, as a result of which the first acts only as a creditor, and the second only as a debtor), then all new informal contracts (with the exception of a loan) were bilateral, or synnalagmatic (that is, each participant, acquiring both rights and obligations, acted simultaneously as a debtor and creditor). Within the framework of bilateral agreements, perfect and imperfect synnalagma are distinguished. A perfect synalagma is characteristic of contracts that acquire bilateral effect from the moment they are concluded. This is explained by the fact that an exchange of mutual obligations is established that are equally valuable for the transaction (for example, a contract of sale, employment, partnership). Imperfect synnalagma is characteristic of contracts that at first manifest themselves only in unilateral action, and then acquire a mutual orientation. In these agreements, there is a main obligation for the implementation of the purpose of the transaction and a secondary one, which is of secondary importance (for example, a deposit agreement, instructions). Bilateral agreements that mediate the counter actions of their counterparties are more suitable for servicing the commodity-money turnover than unilateral agreements, in the process of execution of which there is no counteraction of the actions performed. Therefore, the formation of synnalagmatic contracts dates back to a later time, when serious shifts that occurred in the economy of Rome brought it out of the natural-patriarchal state, and their mass distribution replaced individual commodity transactions. 28. Subject of the contract. Representation. Invalidity of the contract The essential (necessary) parts of the contract are: - agreement of the parties; - the subject of their agreement - the object to which the obligation arising from the contract applies; - base (causa) - the immediate material goal that led the parties to conclude an agreement. Representation cases To cede the right to claim, the praetor began to use the institution of delegation (i.e., procedural representation). The new creditor, collecting the debt from the debtor, acted as if the representative of the old creditor. Such a legal fiction also contained certain inconveniences: for example, upon the death of the old creditor (who formally remained a party to the obligation), the new creditor could no longer claim the debt from the debtor, since the representation terminates with the death of the represented. Invalidity of the contract (transaction). Treaties illegal and contrary to "good morals". Vices of the will An invalid transaction could not be the basis for any legal consequences whatsoever. If an invalid transaction was executed, the consequences of such an execution were subject to elimination, and the parties returned to their original personal and property state (restitution was carried out). The transaction was declared invalid if at least one of the following conditions was met: 1. Defect in the content of the transaction (eg, the uncertainty of the content of the transaction). 2. A defect in the will of the participants in the transaction (eg, the transaction was made by a person who does not have the appropriate legal status). 3. A defect in the will of the participants in the transaction (eg, the transaction is made by force, under the threat of violence, by deceit). The one who used violence in order to compel him to commit violence, in addition to restitution, was obliged to compensate the victim for damage in double size. A person who used fraud in making a deal was subjected to dishonor (infamia). 29. Parties to an obligation. Face swap In the simplest (in terms of the number of parties) obligation relationship, two persons participate - creditor (creditor - reus stipulandi), which has a subjective right, and debtor (debitor - reus promittendi), who is entrusted with a legal obligation correlating with the right of the creditor. But there were also obligations relations that were more complex in composition and number of participants - with several debtors (passive plurality of parties), with several creditors (active), with several debtors and creditors (mixed). Over time, the replacement of persons in the obligation was allowed: in the case of a replacement of the creditor, there is an assignment of the right to claim; in the case of replacing the debtor, they talk about transferring the debt to another person. At first, the assignment of the right to claim in an obligation was carried out by novation, i.e. renegotiation of obligations with a new person. Through innovation, it was also possible to change the content (i.e. type) of the obligation. However, the innovation presupposes the consent of the debtor to re-conclude the obligation (which follows from the fundamental freedom of the contract), which was not always possible to achieve in practice. Assignment. Debt transfer. The Romans, with the development of active civil circulation, moved to freedom of assignment of the right to claim under an obligation - the institution of cession arose. The assignor (the old creditor) and the assignee (the new creditor) participate in the cession, while the consent of the debtor is not required (he only needed to be notified of the successful cession). Not all rights could be transferred by cession, in particular, personal obligations (eg maintenance obligations, obligations from an insult as a private tort) were not subject to cession. The cession, considered as a specific transaction, could be both gratuitous and compensated. Much earlier than the appearance of the cession, the institute of debt transfer was formed, which developed from the stipulation, while the third party simply declared that he was ready to meet the obligation (satisfy the requirements of the creditor) instead of the debtor. However, it was possible to replace the debtor only with the consent of the creditor. Liabilities with multiple creditors or debtors If the subject of the obligation is divisible, then the obligation was divided among several participants. "According to the Laws of the XII tables, inheritance debts are automatically divided into shares." Obligations with a plurality of persons could be of two types: 1. Shared obligation (debt, right of claim) is divided into shares of each co-debtor (co-creditor). An obligation with a plurality of persons is an equity obligation as a general rule. 2. Correal (joint and several) obligation. A solidary obligation could only be passive. In this case, one co-debtor paid for all, and then other co-debtors paid off with him. In this case, the loss by the creditor of a claim against one co-debtor deprived him of the right to claim from the rest of the co-debtors. 30. Performance of an obligation Execution (solution) of an obligation - the main goal pursued by the parties entering into legal obligations. The fulfillment of an obligation terminates it, is the usual and most common way of terminating an obligation. In the ancient republican period (according to civil law, originating from the Laws of the XII tables), there was a strict rule: the obligation must be terminated in the same way that it arose. Over time, the formal requirements for the performance of an obligation became more and more simplified. As a result, the fulfillment of the obligation should simply correspond to its content, i.e. be the proper fulfillment of an obligation: 1. Performance must be made by a person capable of managing his property, personal performance was required only in obligations of a strictly personal nature. 2. Performance must be made to a person capable of accepting it (the creditor or the person specified by the creditor). 3. The performance must strictly correspond to the content of the obligation, the subject of the obligation can be replaced with the consent of the parties, while in the period of Justinian (the post-classical period of the development of Roman law), the replacement of monetary performance by the transfer of land was allowed even without the consent of the creditor. 4. The obligation must be performed in the proper place (the common place for the performance of all obligations under Roman law is Rome or the place where a claim under Roman law can be brought). 5. The obligation must be performed in due time (based on the contract or the nature of the obligation), while early performance was allowed only if this did not violate the interests of the creditor. The obligation may be performed not only by the debtor, but also by any other person in favor of the debtor. Execution is carried out to the creditor or to another person at the direction of the latter (for example, his guardian, trustee, attorney, heir, slave manager). As a general rule, performance must exactly comply with the terms of the obligation. With the consent of the creditor, the subject of performance can be replaced by another, in practice this most often happened in payment with a thing (for example, a land plot) instead of money. The time of fulfillment of the obligation was determined on the basis of its content. If an indication of this was not contained in the obligation, then the obligation had to be fulfilled within a reasonable time, which in each specific case was determined by the circumstances of the case. If there were no reasonable circumstances postponing the term for fulfilling the obligation, then it was subject to immediate fulfillment. The place of performance of the obligation was also determined from the content of the obligation or was located where it was possible to bring a claim (usually this was the place of residence of the debtor). Rome was considered the universal place of fulfillment of the obligation, as the universal fatherland of all Roman citizens. 31. Consequences of default In case of violation of the time, place, procedure for the fulfillment of the obligation, a delay in the fulfillment of the obligation arose, which entailed the "perpetuation" of the obligation. The party that has delayed the performance of the obligation is liable for subsequent risks (eg the risk of accidental destruction of things that should have been transferred to the obligee on time). In addition, the debtor is obliged to compensate for the losses associated with the delay in fulfilling the obligation, which were determined by the highest price of the subject of the obligation in the period between the occurrence of the obligation and its actual fulfillment, and to pay interest on the debt. Liability was limited depending on the type of contract underlying the obligation. Under certain agreements (for example, the partnership agreement), the liability of the debtor was limited to cases of non-observance of the degree of diligence that he applies to his own affairs. The liability of the debtor for non-performance (improper performance) of an obligation was expressed in ancient Rome mainly in the obligation to compensate for all losses incurred (damnum praestare). Sometimes liability was applied objectively, in fact, i.e. regardless of the fault of the violator (increased liability based on objective imputation). Such, for example, is the liability of a guarantor who compensates for losses that have occurred through the fault of the debtor. In case of delay in performance of the obligation, the creditor may unilaterally withdraw from the contract. The creditor's delay was exempted from liability for the debtor's delay. In addition, the creditor (if the time for the performance of the obligation was not clearly defined in himself) had to remind the debtor of the need to fulfill the obligation, otherwise the delay did not occur. Conditions for imposing liability on the debtor for failure to fulfill an obligation: 1. The fact of a civil offense. 2. Presence of losses. 3. Causal relationship between the offense and losses. The debtor is liable in case of non-fulfillment or improper fulfillment of an obligation, as a rule, in the presence of guilt, which was understood as non-compliance with the behavior required by law: "There is no guilt if everything that was required is observed." At the same time, it stood out two types of guilt: 1. Intention (dolus) - the guilty person foresees the consequences of his actions (inaction), wishes for their occurrence. Responsibility in this case comes always without any exceptions. 2. Negligence (culpa in the narrow sense of the word) - the perpetrator did not foresee the consequences of his actions (inaction), although he should have foreseen them ("there is guilt if it was not foreseen that the caring could foresee"). gross negligence - that measure of care that can be demanded of everyone is not shown ("gross guilt is extreme negligence, i.e. a lack of understanding of what everyone understands"). Light negligence - that measure of care and prudence, which a good owner, a caring head of the family should show, is not manifested. 32. Verbal and literal contracts. Stipulation Verbal contracts (contracts), like literal ones, are among the most ancient and formal in the history of Roman private law. Verbal contracts were those established by the oral pronunciation of certain words, formulas or phrases. The verbal contracts included the promise of a dowry, the freedman's oath (of allegiance to the patron, i.e. the former master). The most obvious example of a verbal contract is stipulation - a one-sided promise, used mainly in the markets. Stipulation is concluded by means of a question of the future creditor and a response coinciding with the question on the part of the person agreeing to be the debtor. Stipulation required the simultaneous presence in one place of the parties to the emerging obligation (representation was not allowed), as well as witnesses called to certify the transaction. Over time (especially in the postclassical period), the formalities of stipulation were no longer given importance. An obligation based on stipulation is purely unilateral: the creditor had only the right to demand the performance of the obligation, while the debtor had an absolute obligation to fulfill the creditor's demand. The obligation from stipulation was of an abstract nature, therefore it was a very convenient form of contractual relations, primarily at the dawn of the development of civil circulation in ancient Roman society. In the form of stipu- lation, virtually any contract could be concluded (from purchase and sale to guarantee). Stipulation was often used for the purpose of innovation, i. A stipulation was concluded in order to terminate an already existing obligation, putting in its place a new one arising from the stipulation. In addition, in the form of additional stipulation, a guarantee was established on the side of the debtor in Rome. Literal contracts are based on a record that further testifies to the existence of such a contract. Written contracts were not widely used in ancient Rome, since writing was available to a very narrow circle of the population. The most ancient form of literal contracts were entries in the income and expense books, based on a preliminary agreement between the parties to this obligation. Pre-existing contracts of sale and lease could also be put into written form. A literal contract in the form of an entry in the income and expense books did not exclude the possibility of abuse by the creditor, therefore, in the classical period, this form of contract gradually loses its significance, giving way to simpler and more accessible forms of literal contracts. Over time, the Romans began to use IOUs borrowed in ancient Greek practice - syngraphs and chirographs. Syngraphs were stated in the third person, certified by the signatures of witnesses, used when issuing loans by usurers. The chirographs were stated by the debtor in the first person and signed by him. 33. Real contracts. Storage agreement The emergence of a civil (private law) obligation from a real contract (real contract) is determined not only by the conclusion of an agreement between the parties to the obligation, but also by the transfer of the thing that is the subject of the obligation. Typical real contracts in classical Roman private law were loan, loan and storage. Storage (depositium) is an agreement under which one party transfers another thing for a while to ensure its inviolability. Storage is a real, almost one-sided, gratuitous contract. The parties to the obligation arising from the contract of storage, are the bailor and the custodian. The bailor does not have to be the owner of the thing. According to the general rule subject of storage is an individually defined thing (although in principle this is not necessary), necessarily corporeal (existing in nature). The keeper, as a general rule, does not have the right to use the thing transferred to him for storage, he is obliged to ensure its safety and return it to the bailor upon request (together with the fruits and income) in the condition in which he received, taking into account natural aging. The bailor is obliged to compensate the bailee for the necessary expenses related to the guarding of the transferred thing. The bailor could have an obligation to compensate the bailee for the damage caused by the transfer for storage of a defective thing that caused damage to the bailee. The keeper answered only within the limits of gross negligence (after all, the storage agreement was gratuitous). The only exception was the sad (woeful) load, i.e. luggage in severe emergency circumstances, when a person is forced to transfer a thing for storage to the first person he meets, in this case the keeper is responsible for any fault, and if such a keeper refused to return the thing transferred for storage at all (or could not ensure the safety of the thing), then he reimbursed the cost of the thing twice as much, and also subjected to dishonor (infamia). The bailor was granted a direct claim against the keeper under a storage agreement - the right to reclaim his thing. The custodian could only have a counterclaim under a storage agreement: in case of damage to him by the transfer of a defective thing. Sequestration was a special type of storage agreement. In this case, the item shall be confiscated for storage, if there is a lawsuit regarding its ownership. During sequestration, it is not clear which of the litigants is the bailor (the owner of the thing transferred for storage in the sequestration order), therefore, the holder under this agreement is endowed as an exception (as in the case of a pledge) with the means of possessory protection, being, as it were, the acting owner. 34. Loan and loan Loan (mutuum) is an agreement under which one party transfers to the ownership of the other party a sum of money or a certain amount of other things defined by generic characteristics, with the obligation of the borrower to return after the expiration of the period specified in the agreement (or on demand) the same amount of money or the same the number of things of the same kind that were received. A loan is a real, unilateral, reimbursable (although it could be gratuitous if no additional agreement on interest was concluded) contract. The normal rate of interest was 1% per month in the classical period, 6% (8% for merchants) in the Justinian period; compound interest (interest on interest) was not allowed. Parties to the agreement are the lender and the borrower. The subject are a sum of money or a certain amount of other things, defined by generic characteristics (currency of the loan). Responsibility of the parties is based on general rules and a special agreement of the parties on this matter. The borrower was obliged to return the same number of things, of the same kind and quality, which he received from the lender. Usually, by an additional agreement, the borrower was also obliged to pay interest to the lender (which made the loan agreement compensatory). The document providing proof of the transfer of the loan currency was usually a special promissory note. (chirograph), in this case, the borrower was obligated from the moment he signed the chirograph. In order to exercise the right of claim arising from the loan agreement, the lender was provided with a claim. Over time, the debtor began to be given a special exception with reference to the fact that the borrower did not actually receive the loan currency from the lender, the debtor had to prove this. Only in the III century. The burden of proof for this exception was shifted to the lender: he had to prove that the loan currency had indeed been transferred to the borrower. Loan (commodatum) is an agreement under which one party transfers an individually defined thing to the other party for free temporary use. The loan agreement is a real, practically one-sided, gratuitous contract. By the parties are the lender and the borrower. The subject is an individually defined and non-consumable thing (for example, a specific piece of land). The borrower is obliged to return the loaned thing to the lender within the time period (specified in the contract or at the first request of the lender). The borrower is not obliged to carry out restorative repairs of the thing, if the thing has not worn out beyond the usual and has been used by him in the usual way. The lender could have only one obligation - to compensate the borrower for the damage caused by the transfer of a defective thing (for example, a sick animal that infected the borrower's herd). The lender retains the right of ownership to the thing loaned as long as it is in the possession and use of the borrower. The borrower is liable for any fault, including slight negligence. 35. Contract of sale. eviction Purchase and sale (emptio-venditio) is a contract under which one party undertakes to transfer the property to the other, and the other, in turn, undertakes to pay the purchase price. The contract of sale is a consensual, bilateral, onerous contract. By the parties contracts are the seller and the buyer. Items contracts are the thing to be transferred by the seller to the buyer (goods), as well as the amount of money to be transferred by the buyer to the seller (purchase price). It was allowed to sell things that did not yet exist or were not owned by the seller at the time of the conclusion of the contract (sale, for example, of a crop that has yet to be harvested, under a suspensive condition). Naturally, when selling, the contract of sale was not subject to immediate execution. Moreover, the sale of someone else's thing was allowed, while the seller was obliged to redeem the thing from its current owner, in case of failure to fulfill this obligation, the seller compensated the buyer for all losses caused by the failed main sale and purchase transaction. The seller is obliged transfer the goods to the buyer and transfer title to it. The buyer is obliged pay the agreed purchase price for the goods. The purchase price in the sale and purchase must be expressed precisely in money, otherwise an exchange agreement arises. The purchase price must be specified, but need not be expressed in a specific amount. Prices were generally determined by free agreement of the parties. Risk of accidental death of the item being sold passes to the buyer from the moment the contract of sale is concluded (and not from the moment the seller actually transfers the item). Together with the risks, all random increments and improvements to the goods are transferred to the buyer at the conclusion of the contract. The seller is responsible for the quality of the transferred item. According to the Laws of the XII Tables, the seller was responsible only for those promises about the quality of the goods (except for the usual empty praise for the market), which he actually made, the responsibility for the hidden defects of the goods was not provided. The Romans usually exempted the seller from liability for obvious defects in the thing, which the seller could easily detect. According to the rules of praetor law (more correctly, these rules were formulated by the curule aediles, special magistrates who controlled market trade), the seller also became responsible for the hidden defects of the thing, even if they were not known to the seller himself. At the same time, the principle of responsibility was preserved only in the presence of guilt, i.e. the seller was not responsible for the shortcomings, which he did not know about, but should not and could not know. The seller was also responsible (in the amount of double the price of the goods) for eviction, those. reclaiming the sold thing by a third party due to the fact that the seller was not entitled to alienate the thing to the buyer. The seller was released from such liability if, in a lawsuit with a third party, the buyer did not resort to the seller's testimony as evidence of his rights to the thing. 36. Contract of employment Hiring stuff (locatio-conductio rerum) is a contract under which one party gives a thing to the other for temporary use for compensation. The contract of hiring a thing is consensual, bilateral, paid. Parties to the contract - landlord and tenant. subject of a contract - an individually defined non-consumable thing. The landlord is obliged transfer the thing for use to the lessee, ensure the latter the peaceful use of the transferred thing (for example, if necessary, help with possessory protection, because the lessee was only the holder of the transferred thing). The employer is obliged pay rent, return the thing at the end of the contract in good condition (taking into account natural wear and tear). The lessee has the right to use the transferred thing, but is not obliged to do so. The improvements which he makes to the transferred thing remain his property only if they can be separated. The change of ownership of the thing terminated the contract. The landlord is liable for all forms of fault. The lessee shall be liable for any fault in the event of non-payment of the rent and deterioration in the quality of the leased item. Sublease was acceptable, in which case the responsibility to the landlord was retained by the first tenant (on the principle "for everyone as for himself"). Service hiring (locatio-conductio operawm) is an agreement under which one party undertakes to perform certain services for the benefit of the other party for an agreed monetary reward. Contract of hiring services - consensual, bilateral, reimbursable. Parties to the contract - employed and employer. subject of a contract - performance by hired individual services at the direction of the employer. The hirer undertakes to personally perform the services specified in the contract in favor of the employer. The employer undertakes to pay the hirer an appropriate remuneration. If the hired person could not, due to illness or any other reason, perform the agreed services, he was also not entitled to remuneration. If the hired person was ready to provide the agreed services (and at that time did not work anywhere on the side), but the employer did not use them for reasons beyond the control of the hired person, the latter retained the right to remuneration determined by the contract. The contract could be concluded either for a precisely defined period, or without a period. In the latter case, each party could at any time declare its withdrawal from the contract. Typically, a service contract was concluded for the performance of everyday household chores that did not require special knowledge and skills, while it is essential that only personal performance of the service contract was allowed. The parties to the agreement were liable for their obligations in full. In fact, the position of the hired person in relation to the employer was close to that of the slave in his relation to the master. If such dependence was unacceptable, then a contract of agency was used (for example, in the provision of legal or consulting services). 37. Work contract If the purpose of the contract was to transfer the finished result of the work to the customer, then it was not a contract for hiring services, but work agreement (location-conductio opens). This is an agreement under which one party undertakes to perform certain work for the benefit of the other party for an agreed monetary reward. The contractor's agreement is a consensual, bilateral, onerous contract. Parties to the agreement contract are the customer and the contractor. The subject of the contract is a certain finished material result (opus), which the contractor must achieve in the interests of the customer, using his special knowledge and skills. At the same time, the process of achieving this result is determined independently by the contractor. The contractor is obliged to perform the work in accordance with the requirements of the customer. The customer must accept the work actually done by the contractor (if it meets predetermined requirements) and pay the contractor a fee. The customer provides the contractor with the necessary material (in any case, at least half of it, otherwise there will be a sale). If in the process of performing the work it became clear that it was impossible to complete the work for the agreed price, the customer can either agree to an increase in remuneration or withdraw from the contract without any remuneration to the contractor. If the customer arbitrarily refuses to accept work from the contractor, he is not released from the obligation to pay remuneration. If the customer interrupted the work ahead of time and the contractor managed to use the freed time for another job, his earnings from this second job are counted against the remuneration due to him from the first customer. The contractor performs the work at his own peril and risk, is responsible for accidental loss or damage to the work before it is handed over to the customer (this requirement does not apply to materials provided by the customer). The contractor is even responsible for the fault of those persons whose services he used in the performance of the work. In case of failure to fulfill their obligations, the parties are liable for any fault. Each party to the contract was granted an independent claim (acf / o locati and actio conducti). 38. Contract of agency The commission (mandatum) is an agreement under which one party entrusted the other with the performance of any action. Contract of agency - consensual, bilateral, gratuitous. Parties to the contract - Mandant (principal) and mandate holder (attorney). subject of a contract - legal actions (transactions, performance of some procedural actions), actual services (for example, gratuitous repair of the house). The mandate holder is obliged to accurately, carefully and carefully fulfill the mandate of the mandate holder (to perform the actions specified in the contract of mandate) in full accordance with its content. If it turned out to be impossible to fulfill the mandate of the mandate as accurately as possible, the mandate holder had to ask for additional instructions from the mandate; if it is practically impossible to do so, the mandate holder must act in such a way that his decision is consistent with the general meaning of the assignment. The mandate holder must not necessarily execute the mandate of the mandate personally (unless otherwise specified in the contract of mandate). Upon the execution of the mandate, the mandate holder was obliged to report to the mandate (in particular, to hand over to him all the documents related to the mandate). The mandate holder is obliged to accept the execution of the mandate by the mandate holder. The mandate holder was obliged to compensate the material losses of the mandate holder related to the execution of the assignment, regardless of the result achieved through the costs incurred, provided that the mandate holder spent the funds conscientiously and reasonably. The mandate holder was obliged to compensate the mandate holder for losses incurred by the latter through the fault of the client, as well as those directly related to the execution of the mandate. The assignment was regarded as an honorable duty (albeit gratuitous, in any case, according to the general rule), therefore, the mandate holder was liable (if there was any fault) to the mandate in full and was obliged to compensate the mandate for all losses. If the mandate holder could not fulfill the order, he was obliged to notify the mandate holder so that he could replace the mandate holder, otherwise he was liable to the mandate holder for the damage caused. The mandate holder was responsible to the mandate holder for the careful and careful selection of assistants and deputies (substitutes) in the execution of the assignment, if he was allowed to execute the assignment not personally. If he had to carry out the assignment personally, but nevertheless used the help of substitutes, then he was responsible for their actions before the mandate. In order to exercise the rights of the mandate, corresponding to the duties of the mandate holder, the mandate was given an action, the award of this action, among other things, entailed dishonor. The mandate holder had a counterclaim related, in particular, to claiming compensation from the mandate holder for the expenses of the mandate holder related to the execution of the mandate. The contract was terminated by the unilateral refusal of the contract by one or another party, as far in advance as possible (if this did not cause damage to the other party), as well as by the death of one of the parties (this was how the purely personal nature of this contract was emphasized). 39. Partnership agreement Partnership (soc/efas) is a contract whereby two or more persons come together to achieve a certain common legitimate business purpose. Partnership agreement - consensual, gratuitous, bilateral (or multilateral). Parties (participants) of the agreement - comrades. subject of a contract - joint economic activity of the partnership. Comrades (from their property) created a certain property community. Equality of contributions was not necessary, but was assumed as a general rule. This property could be both in the mode of common ownership of comrades, and remain in the ownership of individual comrades, but in common use for the purposes of the partnership. Under societas quaestus (this form of partnership existed as a general rule), the common property of the comrades included acquisitions received in the course of the general economic activity of the partnership. The comrades also participated in the partnership through their personal activities. The subjects of the rights to common property (and, in general, all rights and obligations in a partnership) were precisely the comrades united for joint economic activity, and not the partnership as such, therefore the latter (unlike, in particular, from the collegium) was not a legal entity. The term in the contract is not an essential condition. With the indefinite duration of the partnership, each of the comrades was recognized the right to unilaterally, subject to certain conditions, renounce the contract. Each of the comrades had to treat the common cause with care and attention, as if it were his own, his responsibility came with such a form of guilt as culpa in concreto. Each of the comrades was obliged not to appropriate the things received in the conduct of a common business, but, in accordance with the partnership agreement, to a common account for distribution among all comrades. Each partner had the right to demand from other partners that both the costs incurred by him and the obligations that he had to enter into in the conduct of a common business should not remain on him alone, but should also be distributed among all partners in accordance with the partnership agreement. The risk of accidental loss of things made by comrades as contributions under a partnership agreement fell on all comrades: in relation to individual things - from the moment the contract was concluded, and in relation to things defined by generic characteristics - from the moment they were transferred. Similarly, the risk of accidental losses and damages caused by the conduct of a comradely business was borne by all comrades jointly. The contract was terminated upon withdrawal from the partnership (death, insolvency) of at least one participant; accordingly, if it was necessary to include a new comrade, a new contract was concluded. In addition, the contract was terminated: at the end of its validity; due to the achievement of the goal or clarification of the impossibility of achieving it; as a result of the scattered actions of comrades; by court decision. 40. Unnamed contracts The system of an exhaustive list of contracts that existed in Roman law, in which each contract had its own economic significance and was protected by its own lawsuit, did not satisfy the economic needs of imperial Rome. So, if two persons agreed on some property grants to each other, but the concluded agreement was not included in the closed list of contracts, then it was not provided with special claim protection, while the Romans noted: "no claim - no right." Only an unjust enrichment claim was given for the party whose rights were violated. To protect developing economic relations, Roman lawyers introduced new types of contracts into circulation, provided with special claim protection, but emerging from the general system of civil contracts. The very term "nameless contracts" for contracts of this type was introduced by medieval glossators. An anonymous contract must have a real condition, it must be compensatory and fall under the formula "I give (do) so that you give (do) - do (facto) ut des (facias)". Examples of unnamed contracts are an exchange agreement, an appraisal agreement. In the contract of exchange (permutatto), it is not money, but another commodity, that acts as the price of the transferred goods, but otherwise, both in economic and legal aspects, it resembles a contract of sale. An appraisal agreement (contractus aestimatorius) is an analogue of a modern commission agreement. Under this agreement, one party transfers a certain thing to the other for sale at a predetermined price, after the sale of the thing to its former owner, the direct seller gives the estimated value. However, the appraiser could return the thing to the owner without selling it. Unnamed contracts in the postclassic period began to be protected by claims (action praescriptis verbis). The party that fulfilled its obligation under an unnamed contract and did not receive satisfaction from the other party was recognized to have the right, instead of filing a lawsuit to compel the counterparty to provide counter-provision, to file a conditional claim for the return of what was performed by the first party as unjust enrichment. 41. Covenants pacts (pacta) were informal (i.e., not subject to contracting rules) agreements, so they were not enforceable. The praetor's recognition of the pacts did not at first take the form of an action in his defence, but of the possibility for the litigating party to invoke the pact by way of objection. Over time, nevertheless, some categories of pacts, as an exception, received legal protection. The pacts were less significant agreements that supplemented the system of contracts. The most common division of pacts: enforceable ("dressed pacts"); unenforceable (“naked pacts”). stood out the following types of covenants that have received protection from action: 1. Attached to the contract. Pacts of this kind were supplementary agreements to any treaty (contract) protected by a lawsuit; they were intended to introduce any modifications into the legal consequences of the main agreement (for example, to impose an additional obligation on one of the parties). 2. Praetor. Such pacts were enforceable by the Praetorian Edict. Types of praetor pacts: 2.1. Debt verification. By concluding this pact, it was possible to change the content of the contract (for example, to specify the payment term). 2.2. Receptum: 1) agreement with the arbitrator. The parties, transferring their court case to an arbitrator (arbitrator), entered into a pact with him, according to which he undertook to consider the assigned case; 2) an agreement with the owner of the ship, hotel, inn about the safety of things of travelers. The owner was responsible for the loss (causing other harm) of the things of the traveler transferred for storage, and the presence of guilt was not necessary (increased liability), i.e. the principle of objective imputation was in effect (only the onset of a natural disaster exempted from liability); 3) an agreement with a banker to pay a certain amount to a third party for the counterparty of the banker who entered into the pact. 3. Imperial, i.e. who have received protection in the imperial legislation, including: 3.1. An agreement between persons between whom there is a dispute regarding the right to submit this dispute for resolution by an arbitrator. To ensure the implementation of the arbitrator's decision, the disputed thing (or a sum of money) was usually transferred to the latter, or stipulation was made for this. For failure to comply with the decision of the arbitrator, a fine was imposed on the guilty party. 3.2. donation agreement. Since the donor does not gain anything from the act of donation, but on the contrary loses, his responsibility for the eviction of the donated thing, for the shortcomings found in it, was limited only to cases where the donor allowed dolus and culpa lata. Unilateral cancellation of the donation by the donor was allowed (for example, in case of ingratitude of the gifted). 42. Obligations as if from a contract. Conducting other people's affairs without instructions. Obligations from unjust enrichment Obligations as if from a contract (quasi ex contractu) - obligations arising in the absence of an agreement between the parties, but similar in nature and content to obligations arising from contracts. In this case, the basis for the emergence of an obligation is either unilateral transactions, or other facts that are not similar in nature to either contracts or torts. The main types of obligations, as it were, from contracts: the conduct of other people's affairs without instructions and obligations arising from unjust enrichment. Conducting other people's affairs without instructions (negotiorum gestio) - an analogue of the contract of agency. In this case, one person (gestor) conducted the business of another person (domimius), managed his property, performed other factual and legal actions, without being ordered to do so and without being obliged to do so in any other way, bearing in mind that the relevant expenses will be charged to the gestor (however, without claiming a reward), such actions in the interests of the gestor must be economically expedient (utiliter). Gestor was responsible for any fault in the conduct of someone else's business without instructions, he was obliged to report to the domimius on the actions taken in his interests. The latter was obliged to reimburse the Gestor for the actual costs incurred by him. The Praetor Edict protected these legal relations in the same way as those arising from the contract of agency. Obligations from unjust enrichment arise as a result of the receipt of things in the property of one person or their preservation in this property at the expense of the property of another person without a proper legal basis. To claim unjust enrichment, the person concerned was given conditional action (condictio). Its subject could be: a sum of money, a certain thing, other unjust enrichment. Condition types: 1. Claim for the return of unpaid money. 2. An action for the return of a grant, the purpose of which has not been realized. 3. Claim for the return of what was received as a result of theft. Could be used by the owner of the stolen item against the thief instead of a vindication claim. This one differed from other cases of obligations from unjust enrichment in that it assumed the bad faith of the debtor (the thief). 4. General claim for the return of unjust enrichment. This claim is granted by virtue of the mere fact of unjust enrichment at someone else's expense without the closest definition of the terms of the claim. It was given in case of impossibility of presenting a vindication claim for the recovery of things (for example, a mixture of individually indeterminate things). Also, this claim was given if the things came into the possession of a person on a legal basis, but then this basis disappeared. 43. Tort. The nature and scope of responsibility. Obligations as if from torts Tort (private offense, delictum privatum) - such an offense that was considered as a violation mainly of the rights and interests of individual individuals (and not the rights and interests of the state as a whole, as a crime), giving rise to the obligation of the person who committed the tort to pay the victim a fine or, according to at least recover the damages. Many offenses considered by the Romans as private torts are now crimes (this applies, in particular, to theft). The list of torts under Roman private law was limited, exhaustive, and there was no abstract legal concept of a general tort. A private tort assumed the obligatory presence of the following three elements: objective harm caused by the illegal action of one person to another; the guilt of the person who committed the illegal act (in the form of intent or negligence); recognition by law of this action as unlawful. If there were several offenders, then the punitive liability in the tort obligation was assigned to each of the perpetrators, moreover, according to the principle of cumulation (multiplication of the penalty). Susceptibility under Roman law did not always coincide with legal capacity. For example, minors (over 12 years old for girls and 14 years old for boys) were not able to enter into contracts (and be liable for them) without the participation of a guardian, but were liable for any tort. In the field of delicts of dependent children and slaves (especially in the early period), noxal responsibility developed: the householder of the guilty person could either compensate the victim for losses from the delict of the subject person; or extradite the latter for personal work off of the debt in the household of the victim. The main torts are offense, theft, unlawful destruction or damage to other people's things, threat, fraud. Obligations as if from torts (quasi ex delicto) arise from the unlawful behavior of a person, however, in such circumstances when there is not one of the torts provided for by the rules of law. 44. Personal insult. Theft. Wrongful damage to property Term injuria (resentment) was used by the Romans both in the general sense of an illegal action, and in the special sense of personal insult. Separate types of personal offense (according to the Laws of the XII tables): damage to the limbs of the human body, punishable according to the general rule on the basis of the talion principle; damage to the inner bone and other personal offenses by action, punishable by a fine. Later, injuria was no longer limited to insulting action, but embraced any insulting, disdainful attitude towards someone else's personality. In addition, the intention of the perpetrator to offend the victim began to be recognized as the basis for responsibility for this tort. The fine began to be determined by the court depending on the circumstances of the case (accordingly, the claim out of insult acquired the character of an appraisal). Due to its deeply personal nature, a tort obligation did not pass on to the heirs of the guilty person in the order of succession. К furtum (theft) any unlawful mercenary encroachment on someone else's thing. Furtum was not limited to stealing things; mercenary illegal intentional use of a thing and theft of possession were distinguished, for example, a debtor takes away from a creditor a thing pledged to him, in which case it turns out that he steals his own thing. A thief whose thing was discovered after the theft as a result of a search was punishable by scourging, after which he was surrendered to the power of the victim; in the case of a night or armed theft, the thief was even allowed to be killed on the spot. A thief who was not caught red-handed was punishable by a fine of double the value of the stolen item. Later, self-punishment of a thief was prohibited. The injured owner was given both vindication and conditional claims (the latter was easier in terms of proof, it allowed the thief to claim the value of the stolen thing from the thief if he had already managed to sell it from his hands). The victim had the opportunity to file a penalty claim against the thief (a thief caught red-handed was awarded a fine in the amount of 4 times the value of the stolen; otherwise, double the amount). Unlawful destruction or damage to another's property The laws of the XII tables were known only in some particular cases of property damage (for example, arson of a house). The general delict of destruction (damage) of other people's things appeared around the XNUMXrd century. BC. with the issuance of the Law of Aquilia. The Law of Aquilia established, upon the destruction of someone else's thing, the payment by the guilty of its highest value during the previous year, and in the event of damage to someone else's thing, the payment of its highest value during the last month. At first, the Law affected only cases of causing harm by bodily influence on a bodily thing, later the scope of its application was expanded (for example, in the case of starvation of another's slave). A necessary condition for the application of the law of Aquilia was the unlawful infliction of harm, the presence of guilt (at least in the form of the slightest negligence). 45. The concept and types of inheritance Inheritance - this is the transfer of the rights and obligations of a deceased individual to other persons. Inheritance is carried out in the order of universal succession, i.e. the heir, accepting the inheritance, acquires all the rights and obligations of the testator (or a certain inheritance share, if there are two or more heirs). Universal succession differs from the so-called singular succession, which grants the successor certain rights without being burdened with obligations. In the process of inheritance, two stages were distinguished: the opening of the inheritance (the death of the testator) and the acceptance of the inheritance. The right of ownership of the heir to the inherited property arose only after the acceptance of the inheritance. The right to accept the inheritance depended on the discretion of the heir, with the exception of the heirs of the first stage according to the Laws of the XII tables, who were "necessary heirs" and were obliged to accept the inheritance opened in their favor, regardless of their will; refusal to accept the inheritance in such a case was not allowed. Also, a slave released by the testator to freedom and appointed heir by will was recognized as a necessary heir. Inheritance in ancient Rome was possible by will or according to law (if the will was not drawn up or invalidated, or the heir specified in the will did not accept the inheritance). A characteristic feature of Roman inheritance law was the inadmissibility of combining the two named grounds when inheriting after the same person, i.e. it was unacceptable for one part of the inheritance to pass to the heir(s) by will, and the other part of the same inheritance to the heir(s) by law. Inheritance by will, which in the early period required the observance of a number of formalities, later became noticeably simpler (the praetor began to recognize and provide enforceable protection even wills drawn up in a simpler form than theoretically required). In the future, the two systems of inheritance according to Roman law - civil and praetor - began to gradually converge. Finally, the new principles of inheritance were established only by the short stories of the famous Byzantine emperor Justinian. 46. Inheritance by law Laws of the XII tables established three lines of succession. The primary heirs were the direct subjects of the testator (children, grandchildren from previously deceased children who had not left the power of the householder by the time of the latter's death). They received the inheritance regardless of the will to accept it, i.e. were "necessary heirs". If after the testator there were no "necessary heirs", the closest agnatic relative of the deceased was called to the inheritance. He could not accept the inheritance, in which case the inherited property became escheated, the succession of the powers of the heir was not allowed. Only if there were no agnatic relatives left at all, members of the same clan with him were called to inherit, i.e. cognate relatives (who were only heirs of the third stage). As the patriarchal family disintegrated, the system of inheritance based on agnatic kinship lost its relevance and significance. Praetor Edict first of all, heirs were placed by the children of the testator, among them were also included the emancipated children of the deceased. The second line consisted of the agnatic relatives of the testator. The third line was formed by blood (cognate) relatives of the testator, up to the sixth generation. Only in the fourth line of inheritance was the spouse. If the heirs of the first stage did not accept the inheritance, then it was opened for the heirs of the second stage, and did not automatically become escheated, as before. The last change in the conditions of Roman succession by law refers to Justinian law and is contained in short stories by Justinian. The first line of heirs were descendants of the testator (sons and daughters, grandchildren, etc.). Between descendants of the same degree of kinship (for example, between all the sons and daughters of the testator), the inheritance was divided equally when inherited by law. Descending relatives of a kinship closer to the testator were called to inherit as a matter of priority (for example, if the testator had children and they did not refuse the inheritance, grandchildren were no longer called to inherit). These rules were extended also at inheritance by heirs of other lines of inheritance. The second line of inheritance consisted of ascending relatives of the testator (parents of the testator, his grandparents, etc.). The third line consisted of brothers and sisters of the testator. The fourth line was formed by all other blood (cognate) relatives of the testator (without taking into account the degree of kinship). As before, the surviving spouse was called to inherit only last. However, at the same time, the widow who survived her husband received the right to the necessary inheritance in the amount of one quarter of the inheritance; if there were more than three heirs, then the widow's inheritance share was equal to their shares. 47. Inheritance by will Testament (testamentum) in Roman law, the order of an individual in the event of his death was called, without fail containing the appointment of an heir. The will could contain legates, the appointment of a guardian to the minor heirs of the testator. A will is a one-sided transaction made at the discretion of the testator. Acceptance of an inheritance is a separate legal act from making a will. To make a will, a special quality of an individual was required - an active testamentary capacity, which was not possessed by incapacitated persons, persons convicted of discrediting crimes, and some other categories. To appoint a person as an heir, the latter had to have a passive testamentary capacity. The children of state criminals, the postums, i.e., did not have such a quality. children already conceived but not yet born at the time of the testator's death. The form of the will, which was extremely cumbersome in ancient times, was gradually simplified (the presence of 7 witnesses was required, the written form was not a prerequisite for making a will). Along with private wills made in this way in ancient Rome, there were also public wills with the participation of state bodies: 1) by making a will in the minutes of a court or a designated magistrate; 2) by transferring a written will to the Imperial Chancellery for safekeeping. In ancient times, the will of the testator was not limited by anything, but in the future, restrictions on the testamentary freedom of a person gradually began to appear. According to civil law, the testator could not pass over his subjects in silence: in the will he was obliged to appoint them as heirs or directly deprive them of their inheritance, and without justifying the reasons for such a decision. The subject sons of the testator, in case of refusal to inherit, should have been listed by name; in this case, daughters could not be called separately by name. Violation of this procedure in relation to the son, who is a potential heir, entailed the nullity of the relevant will and the opening of the inheritance according to the law. If these rules were not observed in relation to other subjects of the testator, the will remained in force, but the persons incorrectly silenced in the will participated in the inheritance along with the heirs appointed by the testator in the will. Over time, the text of the will established a mandatory minimum share in the inheritance for the next of kin of the testator. The praetor also recognized the right to an obligatory share in the inheritance for the emancipated children of the testator. In the classical period, this right was also extended to the descendant and ascendant relatives of the testator in an unconditional manner, as well as to his brothers and sisters, provided that a disgraced person was appointed heir by will. Initially, postums, legal entities, could not be among the heirs. In the imperial period, the appointment in the will of the heirs of both was allowed. 48. Legates and Fideicommissi Legate (testamentary refusal) - the order of the testator, contained in the will, granting a certain person (legate) the right or other benefit at the expense of hereditary property. The legate by its nature bears a singular character of succession, i.e. the legatee (the person in whose favor the legate is appointed) is the successor of the testator only in a separate right, and not in a certain share of the inheritance, respectively, the legatee, as a general rule, is not liable for the obligations of the testator. Since a legate could only be left in a will, legates could not be conferred on statutory heirs. According to their legal status, legates were divided into legates per vindicationem and legates per damnationem. With the help of a legate per vindicationem, the legatee received the right of ownership of a specific thing of the testator (his right was fully ensured by a vindication claim). The legate per damnationem was appointed in the form "let the heir be obliged to transfer so-and-so to such-and-such." The legatee was granted only the right of obligation to demand the execution of the will of the testator in terms of granting this legate. In the process of acquiring the legatee of his rights, two points stood out: the time of the death of the testator or the occurrence of other conditions, specified in the legate (if the legatee outlived it, then his right to receive a legate itself became capable of being inherited, to the heirs of the legatee); and moment of inheritance an heir under a will to whom a legate was granted (the legatee received the right to demand the exercise of his right to a legate). In the interests of the heirs, Roman law established certain restrictions on legates. Initially, their size was limited to 1000 asses, in addition, it was established that no legatee could receive more than the heir. These measures were not enough, so the law of Falcidia (I century BC) established new restrictions in the field of granting legates: more than three-quarters of the entire inheritance (total hereditary mass) could not be issued to heirs as legates. A quarter of the inheritance (remaining after the repayment of the testator's debts) was in any case to become the property of the heir by will (the so-called Falcidian quarter). Fideicommissum - an order given by the testator in case of death without observing the form of a civil will (an order in case of death that does not contain the appointment of an heir or is directed to the heir by law). Since in the preclassical period such orders of individuals were not provided with legal protection, their execution depended only on the conscience of the heir, the fideicommissum itself was more of a moral than a legal institution; hence the very name fideikomissa, translated from Latin as "entrusted to conscience." Later, the fideicommissi, provided with legal protection, in fact merged with the legates in their legal status, which was finally fixed by Justinian's short stories. 49. Opening and acceptance of inheritance. Consequences of acceptance. Inheritance lawsuits The opening of the inheritance occurs at the time of the death of the testator. After the opening of the inheritance, the circle of persons called to inherit is determined. In the archaic period, legally, the position of an open but not accepted inheritance ("lying inheritance") was equated with the position of ownerless property. And although the rule on the admissibility of the free seizure of ownerless things was not applied to him, any person, having seized a thing from an open inheritance and having taken possession of it for one year, became its owner. In the classical period, the lying inheritance, before it was accepted by the heir, nevertheless began to be counted as if for the deceased. Such a construction using legal fiction, in contrast to understanding the lying inheritance only as ownerless property, made it possible to deal with various encroachments on the lying inheritance. The heir entered into the inheritance either by a direct expression of his will, strictly formal according to the norms of civil law, or not so formal in pre-torian and later Justinian law, or by his behavior as an heir (for example, paying the debts of the testator). When accepting an inheritance, the heir, due to the universal nature of hereditary succession, accepted not only the assets of the testator, but also all his debts and other obligations (except for obligations of a purely personal nature that ceased with the death of the testator). At the same time, the heir is fully responsible for the obligations of the testator, it is possible to avoid this responsibility only by renouncing the inheritance as a whole. In Justinian law, a special privilege was established, according to which the heir was liable for the debts of the testator only in the amount of the assets of the inheritance. To use this benefit, an inventory and assessment (with the participation of interested parties, a notary and an appraiser) of the inheritance must be drawn up within 3 months from the moment the heir learned about the opening of the inheritance in his favor. The entry into the inheritance automatically extinguished the mutual obligations of the heir and the testator. If any of the testator's debtors did not recognize the rights passing by inheritance, the heir had the right to the same claims as the testator himself. If the right of the heir was not recognized, he was granted a special civil claim for the recovery of the inheritance, similar in its consequences to the vindication claim of the owner of the thing. The praetorian heir received a special interdict for his legal protection, with his help he could obtain possession of inherited things. If the inheritance is not accepted by any heir, it becomes escheated. In ancient law, such property was considered no one's, ownerless, i.e. could be freely captured (occupied) by any person. From the time of the principate, such property began to be transferred to the state. During the period of the absolute monarchy of the church, the municipal senates were given the priority right to receive the escheat inheritance of persons belonging to them (in particular, the church after the clergy).
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