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350 Appendix.

D. Tutores cessicii. This kind is fully explained in the text, and requires the less comment as it went out of use very soon after Gaius' time.

E. Tutora dativi:—■

I. Praetorii, given by the praetor for various reasons (§§ 176—184), and when given, supplanting for the time the authority of the tutor of one of the preceding classes,—deputy-tutors, in fact, for a longer or shorter time.

II. Atiliam, tutors appointed by the magistrate in cases where a minor or woman has no tutor at all.

(D). On Acquisition.

The various modes of acquisition recognized by the Roman Law are divided into two classes, (1) Natural, (2) Civil; the former existing in the jurisprudence of all nations, the latter peculiar to the Roman legal system.

These and their subdivisions may be thus tabulated.

See Halifax's Analysis of the Civil Law.

I. Natural modes of acquisition.

(a) Occupancy.

(1) Of animals. II.66,67,68.

(2) Of property of the enemy. II. 69.

(3) Of things found. Just. Inst. II. 1. 18 and 39.

(b) Accession.

(1) Natural.

(a) The young of animals. Just Inst. II. 1. 19 and 37.

(jS) Alluvion. II. 70.

(7) Islands rising in the sea or a river. II. 72.

(J) Channels deserted by a river. Just. Inst. II. 1. 23.

(2) Industrial.

(a) Specification. 11. 79.

(j3) Conjunction of solids. Just. Inst. 11. 1. 26.

(7) Confusion of liquids. Ibid. II. 1. 27.

(8) Commixtion of solids. Ibid. II. I. 28.
(«) Buildings. II. 73.

(# Writing. II. 77.
{■>)) Painting. II. 78.

(3) Mixed.

(a) Planting. II. 74.

(/3) Sowing. II. 75.

(7) Perceptio fructuum. Just. Inst. II. 1. 35, 36.

(e) Tradition (delivery). II. 65.

(1) On sale. Just. Inst. II. 1. 41.

(2) On gift. Ibid.

On Acquisition. 351

(3) On loan (mutuum, for the same thing has not to be restored). III. 90.

II. Civil Modes of acquisition.

(A) Universal.

(a) Succession on death.

(1) By testament (hereditas). II. 98.

(2) By law (hereditas). II. 98.

(3) By the edict (bonorum possessio). II. 98.

(4) By fidekommissum. II. 248.

(b) Arrogation. II. 98, III. 83.

(c) Conventio in manum. II. 98, III. 83.

(d) Bankruptcy. II. 98, III. 77.

(1) Voluntary (cessio bonorum). m. 78.

(2) Involuntary (sectio bcnorum).

(e) Addictio bonorum libertatum servandarum causa.

Just. Inst. III. 11. pr.

(f) Cessio in jure hereditatis. III. 85.

(B) Singular.

(a) Mancipaiio. II. 22.

(b) Cessio in jure. II.22.

(c) Usucapio. II. 41.

(d) Donatio propria. Just. Inst. II. 7. 2.

(e) Donatio impropria.

(1) Propter nuptias. Just. Inst. II. 7. 3.

(2) Mortis causa. Ibid. II. 7. I.

(f) Succession on death.

(1) Legacy. II. 97, 191.

(2) Fideicommissum singulare. II. 260.

(E). On the causes rendering a Testament invalid.

When a testament would not stand, it might be either,
Injustum, )

Non jure factum, > owing to some original defect:
Imperfectum: )

'if a child be omitted or disinherited without cause: if the testator have not testamentifiactio: or if the heir have it not: Ruptum: by an agnation or quasi-agnation; by a subsequent testa

ment: by revocation or destruction: Inritum or irritum: through a capitis diminutio of the testator, or

through no heir appearing under it: Destitutum: also when no heir appears under it: Rescissum: when a querela inofficiosi is sustained. See Just. Inst. II. 18.

Nuttius momenti,

352 Appendix.

(F). On the Decurionatus.

The decuriones were the members of the senate of a municipium, i. e. of a town which was allowed to manage its own internal affairs. Originally the municipes or burgesses, convened in their general assembly, seem to have held the sovereign power: they elected the magistrates (see Cic. pro Cluentio, 8) and they enacted the laws (Cic. deLeg. III. 16): but the power of the assembly gradually declined, and the senate usurped its functions, directly administering all business, instead of adopting and passing the matters sent up to it by the municipes. The senate and its members are denoted by different names at different periods of Roman history, originally ordo decurionum (for instance, in Macrobius, Sat. II. 3. 11, where there is an anecdote that Caesar found it more difficult to get a decurionatus at Pompeii than at Rome), then ordo simply, finally curia, and the members curiales or decuriones. During this last period the magistrates of a municipium were nominated by the decuriones, and the functions of government apportioned between the two. The first infringement on the rights of the municipes as a body may be referred to the time of Augustus, who ordered that the right of suffrage at elections should be confined to the decuriones: and from that time the name of municipes, originally applied to all the inhabitants, is confined by writers on the subject to the members of the senate or curia.

As the decuriones were thus invested with so large an amount of power and' influence, it may be asked why in later times it was difficult to find men willing to become members of the corporation, and why had devices to be invented to keep up the numbers of the curia; for instance that of allowing legitimation to be effected by enrolment of an illegitimate son as a member of the curia (per oblationem curiae). The answer is that the absorption of all power by the emperors in later times rendered the office one of intolerable responsibility, and further that heavy fees attended the enrolment of a new member.

(G). On Caduca and the Lex Papia Poppaea.

The Lex Papia Poppaea introduced important alterations into the law of accruals and lapses. Let us first consider the old law on the subject.

Previous to the Lex, legacies which utterly failed from the death or incapacity of the legatee, or from any original invalidity of the bequest lapsed to the inheritance, and so benefited the heir. But this rule did not immediately apply to co-legacies: these only lapsed if both or all the co-legatees were unable to take.

Hence if some of the co-legatees were able to take, there might be accrual instead of lapse. Thus

(1) If the joint-legacy had been given disjunctim (in which case the co-legatees were styled re conjuncti), there was no accrual, for each legatee had from the beginning a title to the whole thing:

(2) If it had been given conjunctim, (in which case the co-legatees were termed re et verbis conjuncti), accrual was generally allowed, i. e. the surviving legatee or legatees took the share of their deceased associate, the only exception being in a legacy by damnation, where there was a lapse (II. 205):

(3) If the joint legacy had been given with a specification of the shares to be enjoyed by each legatee, (in which case the co-legatees were said to be

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verbis conjunct!,) there was no accrual, but a lapse, on account of the separation of the interests ab initio.

The Lex Papia Poppaea swept away all these regulations and left the law thus: all inheritances and legacies to unmarried and childless persons were void and were termed caduca, (but caelibes by marrying within one hundred days could avoid the forfeiture; and in the case of orbi only one half the bequest was caducum, Ulp. xVII. I, Gaius II. 286):

Legacies which would have lapsed or accrued by the civil law were put under the same rules and said to be in causa cadnci. These rules were that caduca should go;

(1) to co-legatees joined re et verbis or verbis and having children. (As we said above those joined re would of course get the full legacy from the universality of their original title and therefore wanted no help from the law): failing these, they went

(1) to the heirs who had children: failing these again

(3) to legatees generally (not conjuncti) who had children.

All the^e rules were again abolished by Justinian, (see Code vi. 51. 11,) and the old regulations were restored almost exactly, but the exceptional law as to legacies by damnation was not re-enacted.

Caracalla had previously abrogated the Lex Papia Poppaea and made caduca go to thefiscus.

(H). On the Classification of Legacies.

The following table exhibits the resemblances and differences of the various forms of legacy:—


Per Vindica-

Per Damna- Sinendi modo.

Per Praecep-


Process for recovery.


Direct bequest Simple charge Charge upon
to the legatee, upon the heir, the heir in a
peculiar form.

Vindicatio. Condictio.


Direct bequest to one of several joint-heirs.

Judicium familiae erciscundae.

Property ex Anything Property of Property of

jure Quiritium whatever, whe- the testator or the testator, of the testator, ther belonging the heir.

to the testator,

the heir, or a

stranger; in

existence or


354 Appendix.

Per Vindica- Per Damna- Sinendi modo. Per Praeceptionem. tionem. tionem.

Conjoint Shared equal- Shared equal- Shared equal- Shared equal

Legacy, ly: accrual al- ly: no accrual ly: accrual al- ly: accrual al

lowed, allowed, but lowed. lowed,

lapse to the

Disjoint Shared equal- Paid in full to Paid in full to Shared equal

Legacy, ly. each legatee, first claimant: ly1.

whether to se-
cond also a dis-
puted point.

(I). On the Classification of Obligations.

Obligations according to the Roman law are divided into (A) Natural and (B) CiviL

A. Natural obligations again are divided into (a) those which the civil law absolutely reprobates (see Warnkoenig's Commentaries, Vol. II. p. 158), and (b) those on which an action cannot be grounded but which can be used as an exception or ground of defence: nuda pacta.

B. Civil obligations are also subdivided into (a) civil obligations in the strictest sense, i. e. obligations furnished with an action by the civil law, (/J) praetorian obligations, which are enforced by an action granted by the later legislation of the Praetor's edict.

(o). Of these civil obligations in the strictest sense there are two subdivisions, viz. (I) those which were altogether unconnected with the jus gentium and based on the civil law only, legibus constitutae: (II) those recognized by the jus gentium, and received into and furnished with an action by the civil la.\v,jure civili comprobatae.

Under (I) we may classify (1) obligations springing from contracts stricti juris, which were actionable because entered into with special forms which the civil law prescribed: (2) obligations by delict: (3) what were called obligationes ex variis causarum figuris, arising chiefly from quasi-contracts or quasi-delicts, but not entirely confined to these. And to these at a later period were added (4) two descriptions of pact (see A. b. above), viz. Pacta adjecta and Pacta legitima, an explanation of which will be found below.

Under (II) we may range contracts of the kinds styled real and consensual.

(/3). The Praetorian obligations were chiefly those called constitulum pecuniae, i. e. a promise to pay a debt already existing according to natural law, but not enforceable by action; for the exaction of which, after the promise had passed, the Praetor in his edict furnished an action: and praecarium, a grant of the use of a thing during the pleasure of the grantor, who again could only recover possession by means of a remedy (the interdictum de precario) provided by the edict.

1 The rules as to this kind of legacy 11} considered a legacy by praeception are given according to Gaius and the Sabt- identical with one by vindication, nians: the Proculians (see Ulpian, xxiv.

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