Roman legal cases

[ASCLEPIADES]

Salve, amici!

 

Here I intend to post some real legal cases (quoted on primary sources).

The original names may have been changed (obviously from my ignorance, not for their protection).

You are expected to give your expert advice based on your Roman law's knowledge.

 

Here's the first one:

 

"Servus meus titio mandavit, ut fundum ei emeret, eique manumisso titius possessionem tradidit: quaesitum est, an longa possessione caperet."

 

"My slave (Sticius) directed Titius to purchase a tract of land for him, and Titius transferred the possession of the same to the slave after his manumission.

The question arose whether he could obtain it by long possession."

 

Involved persons: Julianus (slave owner) Sticius (slave) Titius (freeborn = ingenuus).

 

This case was originally published by Julianus.

 

Have fun!

Edited September 17, 2007 by ASCLEPIADES

[Kosmo]

Yes. The possesion was transfered from Titius to Sticius. Julianus was the owner, but Sticius had possesion.

[G-Manicus]

Yes. The possesion was transfered from Titius to Sticius. Julianus was the owner, but Sticius had possesion.

 

I wonder in Rome if possession was IX / X'ths of the law?

[Publius Nonius Severus]

Interesting concept and case...this should be fun!

 

Edit: Below I have made distinctions between ownership and possession as they were distinct in ancient Rome. I assume the case is about ownership (and argued as such), but it may not be...it may only be about possession in which case my arguments would need to be adjusted.

 

I agree with Kosmo, the transfer is probaly legal and Sticius should be the rightful owner (based on the information we have)...but, I can see why Julianus brought forward the case.

 

While Sticius was the property of Julianus, he could acquire no ownership of any thing (but he could acquire things for his master) and anything he posseses is the property of Julianus. The only caveat to this is whether or not Sticius had any peculium (money or other things expressly granted by the master to the slave). While a slave, even though any peculium would be Sticius', it was still owned by Julianus. Once manumitted, the peculim would be Sticius wholely as long as that was stipulated in the manumission and any debts to the former master were settled in full.

 

So, what does all this have to do with the case before us? Well, I can see Julianus making claim that while Sticius was his slave when he directed Titius to purchase the land for Sticius, Sticius could not rightly own it and thus it belonged to Julianus. Yes, Sticius didn't transfer ownership until after Sticius was free, but what were the terms of the agreement between Sticius and Titius when Sticius "directed" him to acquire the land? Did he pay him for it or have an obligation to pay him? If he did, then it mostl likely belonged to Julianus. If he didn't then it is easy for Titius to claim that he owned the property and was under no obligation to sell it to Sticius AND only after Sticius was freed did he sell it to him.

 

I wonder in Rome if possession was IX / X'ths of the law?

 

Nope! Dominium was the right of ownership. Possessio was the right to possess something. Someone with dominium could have possessio but someone with possessio could not necessarily have dominium .

Edited September 17, 2007 by Publius Nonius Severus

[G-Manicus]

Nope! Dominium was the right of ownership. Possessio was the right to possess something. Someone with dominium could have possessio but someone with possessio could not necessarily have dominium .

Touche'!

 

I am going to weigh in on the underlying case and state that the deal hinges on whether any consideration passed from Sticius to Titus. If so, I think it's fair to say a contract has been entered into and that Sticius has illegally acquired an asset in the form of the option to purchase the tract of land in question. My ruling is that the option to purchase shall now pass to Julianus and that fifty lashes shall be administered to Sticius no later than the 4th day of Sextilis!

 

*bangs gavel*

Edited September 17, 2007 by G-Manicus

[ASCLEPIADES]

Salve, amici!

 

When this case was discussed by the Roman jurists (including the "Byzantine" ones), especially Julianus and Ulpianus, they had to determine the pertinence of the following legal actions:

 

I. actio de peculio.

 

II. actio mandati contraria.

 

III. actio de in rem verso.

 

IV. reivindicatio.

 

V. exceptio in factum.

 

[Publius Nonius Severus]

Salve, amici!

 

When this case was discussed by the Roman jurists (including the "Byzantine" ones), especially Julianus and Ulpianus, they had to determine the pertinence of the following legal actions:

 

I. actio de peculio.

 

II. actio mandati contraria.

 

III. actio de in rem verso.

 

IV. reivindicatio.

 

V. exceptio in factum.

 

 

Hmmm, I am far from a jurist but here goes:

 

I. actio de peculio. - Did the matter involve the Sticius's peculio?

 

II. actio mandati contraria. - Is there an obligation to demand reimbursement? (Julianus or Titius?)

 

III. actio de in rem verso. - Did Julianus derive andvantage from Sticius's actions since they were without his consent?

 

IV. reivindicatio. (should read rei vindicatio I think) Is a claim to the property by one with the right to own property) probably by Julianus

 

V. exceptio in factum. Is probably Sticius's reply to the the claim (his defense) but the in factum is used with findings, not law I think.

 

My head is spinning!

[ASCLEPIADES]

I think a couple of hints are in order.

 

The quid of this case is that slaves had no juridical personality or responsability; they depended entirely on their owners (domini), at least until they were manumitted. The servi were simply nstrementum genus vocale, ie talking tools.

 

The Roman Pater familias was the lawful owner of his slaves and of all the earnings of the members of the familia under his con

Edited September 17, 2007 by ASCLEPIADES

[ASCLEPIADES]

And some other explanations are also in order:

 

Actio is defined by Celsus (Dig. 44 tit. 7 s51) to be the right of pursuing by judicial means (judicio) what is a man's due.

There are four actions proposed by Ticius in this case:

 

I. actio de peculio.

It allows the plaintiff (Ticious) to demand the pater familias by the debt that contracts his filius familiasor his servus as a result of the administration of the peculium that has trusted to him.

 

II. actio mandati contraria.

A mandate is the equivalent to the power of attorney in common law systems, an authorization to act (for an agent, as Ticius) on someone else's behalf (Sticious) in a legal or business matter.

The contraria action means that Ticious is demanding Julianus a compensation for the mandate given to him by Sticius.

 

III. actio de in rem verso.

Enrichment without cause. Ticius is reclaiming to Julianus his enrichment (the land) via Sticius.

 

IV. reivindicatio.

Res vindicatio is a legal action by which the plaintiff (Ticius) demands that the defendant (Julianus) return a thing that belongs to the plaintiff.

 

Exceptio was the extraordinary part of the formula that unlike the ordinary ones used by the actor, served like means as defense the demanded one. When certain circumstances of factual character occurred that they could lead to the acquittal of the demanded one if it alleged this one to them (in this case, the slave condition of Sticius), it asked the judge who inserted in formula one exceptio.

 

Once again, the clue is the slave condition of Sticius.

Edited September 18, 2007 by ASCLEPIADES

[ASCLEPIADES]

This case was originally published on the Pandektes or Digest of Justinian I (VI Century AD), based in two commentaries:

the first one by Publius Salvius Iulianus (II Century AD) on Liber XLI, Ch. IV, sec. VII, line II:

") My slave directed Titius to purchase a tract of land for him, and Titius transferred the possession of the same to the slave after his manumission. The question arose whether he could obtain it by long possession.

The answer was, that if my slave had directed Titius to purchase the land, and Titius had delivered it to him after his manumission, whether he believed that the slave's peculium had been given to him, or did not know that it had not, the slave could, nevertheless, obtain the land by long-continued possession, because he either knew that his peculium had been given him, or he ought to have known it, and hence he resembles one who pretends to be a creditor."

 

and the other by Domitius Ulpianus (III Century AD). on Liber XXI, Ch. III, sec. I, line IV:

") If a slave purchases merchandise with money belonging to his peculium, and his master orders him to become free by his will before he obtains the ownership of the property, and bequeaths to him his peculium, and the vendor brings suit to recover the merchandise from the slave; an exception in factum can be pleaded, on the ground that he was a slave at the time he made the contract."

[ASCLEPIADES]

Then, the pragmatic conclusion is that the servus Sticius failed on his attempt to profit from his null legal status, mainly because he hadn't been manumitted yet.

 

Being the "granter" of the Power of Attorney a slave (he couldn't), there was no mandate. As Sticius had no peculium, the delivery of the land was considered as a "donation" from Ticius by the law. Not being proprietary, Ticius couldn't demand Res vindicatio.

 

So, the legal actions couldn't proceed against Sticius' owner, even less against the slave.

 

BUT, as Sticius was still a slave, he couldn't claim the exceptio in factum, nor could he obtain the land by long possession.

 

So, until proven otherwise, the tract of land goes to the slave-owner, as any other of the slave's possesions.