|Roman Law and its influence on modern interpretations of law
non quia Romanum, sed quia ius ….
not as it is Roman, but as it is a law…
Roman Law had a considerable influence on the development of later legal systems, particularly in Europe. Originally, there was the common law, i.e. unwritten law, in the Roman Empire. Only later the law was written down in order to weaken the Patricians’ position as the guardians of the law. The first example of a written law is the Code of the Twelve Tables (450 BC), which attributed equality to all Roman citizens. Since it was open to the public, it was called ‘Ius civile’.
An important innovation in the legal system dates back to the Emperor Augustus. From this time onwards, precedents and important legal scholars’ comments, such as Gaius, Papinian, Julius Paulus and Ulpian, were referred to. In addition, the Emperor Augustus’s decrees were of great importance. However, within time this legal system reached its limits, as it became more and more complex. Under Emperor Justinian I it was therefore improved and henceforth it was called ‘Corpus Iuris Civilis’. As one of the most important compilations of Roman Law it consists of four parts:
This concept lies at the root of various legal systems, as for example the European one. In contrast to Roman Law, law is divided into civil law and public law nowadays.
This portfolio aims at presenting aspects of civil law, which consists of five parts:
Law of things
Law of obligation
Law of succession
Acquisition of possession and property
The terms ‘possession’ and ‘property’ are often used synonymously. Nevertheless, there is an important difference.
“Wer eine Sache in seiner Macht oder Gewahrsame hat, heißt ihr Inhaber. Hat der Inhaber einer Sache den Willen, sie als die eigene zu haben, so ist er ihr Besitzer.“ (ABGB, §309)
„Alles, was jemanden zugehört, alle seine körperlichen und unkörperlichen Sachen, heißen sein Eigentum.“ (ABGB, §353)
The term ‘property’ (dominium, proprietas) refers to the right to dispose of a thing, while the term ‘possession’ (possession) designates the actual power over a thing. As several famous Roman legal scholars, such as Ulpian (D41,2,12,1), already pointed out, distinguishing between these two terms is essential.
According to this distinction, a thief takes possession of a thing, but he can never become the owner of it. The person who had something stolen can demand his property back – this is also possible in front of a court.
Similarly, taking a loan means gaining possession of financial means. However, it does not imply becoming the owner of the money.
Possession can only be gained ‘corpore et animo’, that is, one, firstly, has to be willing to possess a thing and, secondly, be physically close to the thing.
Acquisition of possession (as well as property) of movable, that is, ‘living’ things works in a slightly different way. The owner of a plot of land also owns the animals on his land. He is allowed to hunt and fish as he likes and does not require a shooting or fishing license to do so. Furthermore, he can decide whether others are allowed to hunt and fish on his land. Trespassers may be prosecuted. However, by killing an animal trespassers gain possession of these animals, even though killing was prohibited in the first place. Enclosures and fish ponds constitute exceptions to this rule.
In the case of tame animals the property right does not apply anymore if the animals leave their owner and do not return.
In general, in order to gain possession of an animal, one has to seize the animal (occupatio).
The situation in the Austrian Law is very similar:
“Körperliche, bewegliche Sachen werden durch physische Ergreifung, Wegführung oder Verwahrung; unbewegliche aber durch Betretung, Verrainung, Einzäumung, Bezeichnung oder Bearbeitung in Besitz genommen.“ (ABGB, §312)
Law of damages -- „Lex Aquilia“
The „Lex Aquilia“ (Law of damages), is probably one of the most famous Roman laws. It was approximately created 290 BC and is said to have been enacted upon a petition made by Aquilius, a tribune of the people.
The “Lex Aquilia” primarily influenced the Code of the Twelve Tables, which at that time had been in force for 200 years. As a result of the Lex Aquilia, the Code of the Twelve Tables was supplemented and modified as there was no more insistence on special cases and the ensuing rigid payments of damages that quickly lost their validity. Rather, an effort was made to create a general law that could be applied in a variety of cases.
In Roman Times, damage was reimbursed in a number of ways.
If a person killed a slave belonging to another person, he was required to reimburse that person for the damage he caused. He had to pay the highest value for the slain slave that the latter had attained during the previous year.
If someone destroyed an object, he was required to reimburse the price after 30 days. The reason why a person did not have to pay until after 30 days was that it was only possible to tell after this period how great the loss of this object was and how significant it was for the person concerned.
Nowadays the situation is of course somehow different, primarily since there are no slaves today. The “Lex Auqilia” corresponds to two areas of modern-day law. A person must either be prosecuted (i.e. under criminal law) or be charged with an offense under civil law, and he must make restitution for the damage accordingly.
A criminal charge is always instituted by the government, as the following example illustrates. A man causes an accident in which people are injured. One person even dies from the accident. However, it turns out that this accident did not occur due to carelessness, but rather due to pure intent. For this reason, the state prosecutor can, in the name of the republic, prosecute the man who caused the accident. After the court case, the defendant can be taken into custody and he can also be fined, with the state receiving the money.
Civil proceedings are never instituted by the government – a civil action is always initiated by a private citizen. For example, two neighbours argue about the boundary between their properties. In order to resolve the dispute, the one neighbour who feels that he is in the right can bring a civil action against the other neighbour. After the court case, the defendant cannot be arrested, but he can be fined. The other party – the plaintiff – will receive the money.
The purchase (emptio venditio) is a contract which obliges one party (venditor) to provide a thing (a commodity) and the other party (emptor) to provide payment. It is a bilateral contract since both parties are creditors and debtors at the same time – the venditor owes the commodity and the emptor owes the money.
The mancipatio is the oldest type of Roman purchase: slaves were bought for copper.
In Roman Times, legal scholars started to distinguish two types of purchase, namely ‘commitment’ – the seller is obliged to provide the commodity – and ‘disposal’ – the buyer becomes the owner of the commodity.
Various rights, such as property rights, but also power to dispose of persons, can be transferred from one person to another. In Roman Times, land, slaves, pack animals and draught animals were considered things (commodities) and could therefore be purchased.
Informal consensus is sufficient for a valid obligatory contract.
If a debtor is not able to fulfil his part of the contract, he comes in default and may have to pay interest for delay. However, also a creditor may come in default if he does not accept the service the debtor provided according to the contract. Consequently, the debtor’s liability is limited.
The seller is always liable for defects of the commodities. For redhibitory defects, however, he is only liable if he kept them secret on purpose or if he guaranteed a faultless product.
The Romans considered only certain types of contracts to be obligatory. Today, freedom of contract applies in the contractual law of obligation, that is, the parties can also informally agree on a contract. The difference between the Roman system of contract types and today’s freedom of contract, however, is to be neglected.
The influence of Roman Law on modern-day legal systems
Roman Law has greatly influenced today’s civil law. This seems due to the fact that the Roman Law was regarded as ‘reason’ in written form.
Not only has Roman Law had an impact on law in Western and Central Europe, but it has also left its mark on the law in the United Kingdom and the United States of America. In the latter countries general rights do not find their expression in laws, but in traditional maxims and verdicts, to which people have adhered throughout the centuries. Since Spain and Portugal were part of the Roman Empire, law in Southern and Central America has been influenced by Roman Law, too. Furthermore, Dutch colonists brought ideas of Roman Law to South Africa and Sri Lanka. However, hardly any traces of Roman Law can be found in Islamic countries, China and Central Africa.
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