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in bonis (see sec. 62) were, after a short lapse of time, converted into full Quiritarian ownership. Prescription, before the time of Justinian, was not a means of **
of Prescription. acquiring rights: it merely gave a means of repelling actions brought to regain rights which had long been held by another than the absolute owner. It was applicable to immoveables in the provinces, they being not affected by usucapio, which regarded all moveables, but only such immoveables as were in Italy. Justinian made considerable alterations in the law with respect to acquisition of ownership by length of possession. The same law was made to prevail throughout the empire, and possession during three years gave the ownership of moveables, and possession during ten years, if the parties had inhabited the same province during the time, or possession during twenty years if they had not, gave the ownership of immoveables.
73. The ownership was also transferred when things were surrendered by the fictitious process of in jure cessio, that is, a suit in which the defendant gave up to the ?" plaintiff all he claimed, or when things were adjudged (adjudicatio) in certain actions, such as those for assigning boundaries, and dividing a family estate, when the judge had a power to assign the respective portions to the different parties.
74. The entirety of rights was acquired when one person succeeded to the persona, or legal existence, of another, and thereby succeeded to all his rights, an entirety of whether over things or against persons. The cases rights. in which this most naturally occurred were that of arrogation (for when a person was arrogated, he, of course,
Arrogation. transferred all that he had to the person whose family he entered), and that of succession to the inheritance of testators and intestates.
75. Testaments were originally made by being proclaimed in the comitia curiata, or by a fictitious sale, in which
Testaments. testators transferred their property to a purchaser-c* (familiæ emptor) who was himself heir, or who was, after their death, to distribute it according to their wishes. In later times a testament was made in the presence of seven witnesses, who affixed their seals to it, and the witnesses and the testator subscribed the testament. In order to make a testament, it was necessary to have the testamenti factio, a term implying such a participation in the law of private Roman citizens as to make a
person be considered capable of inaking, taking under, or being witness to, a testament. 76. The testator was obliged to disinherit by name every
one who, being among those in his own power, had a
ng natural claim on his property; and if he failed to do so, the whole testament was set aside. The great peculiarity of a Roman testament was the institution of the heir, that is, of the Institution of person who was to succeed to the persona of the the heir testator. Unless there was such a person, no other disposition of the testament could take effect, for there was no continuation of the testator's legal existence. The heir was, therefore, properly appointed at the beginning of the testament; in case of the heir accepting, he placed himself exactly in the position of the testator, received all his property, and was answerable for all his debts; in receiving his property he was, however, bound to give effect to the subsequent dispositions of the testament. Various provisions were made at different times to protect the heir, and especially he was secured by the Lex Falcidia in a clear fourth of the inheritance; and under Justinian his position was altogether altered, and he could take the property of the testator apart from his own. In order that the testament might not fail because the heir was not willing to enter on the inheritance, it was customary to name one or more persons to whom in succession it might be open to take upon them the office of heir (substitutio). And a testator could always secure an heir by naming, as the last of the list, one of his own slaves, whom the law did not permit to refuse the office (heres necessarius). When some of the conditions necessary to create an heir, or give a legacy, were wanting in a will, still the expressions of the testator's wishes were binding as
Fideicom. trusts upon the heir under the will, or heir ab inmissa. testato. Such trusts (fideicommissa) were first made obligatory by Augustus, who also first gave effect to codicils, that
is, writings purporting to deal with property in the Codicils.
28 manner of a testamentary disposition, but not executed with the solemnities which were required to make a testament valid. 77. If there was no testament to determine the succession to
the particular property, the law prescribed the order Succession to in which it was to devolve. The first claimants were intestates.
the sui heredes, that is, all persons in the power of the deceased, and who, on his death, became themselves sui juris. Thus, a son in potestate was a suus heres of the deceased, but not à grandson until the son was dead. These persons were term sui heredes as having an interest of their own in the family property. If there were no sui heredes, the next heirs were the agnati, i.e. all members of the same civil family; and then, in default of agnati, the law of the Twelve Tables gave the inheritance to the members of the same gens, an enactment which could of course only take effect when the deceased was a member of a gens. What was the course of devolution beyond the agnati under the old civil law, when the deceased was not a member of a gens, we do not know; but probably the blood-relations succeeded. In default of agnati, under the prætorian legislation, the claims of the natural family were attended to, and the cognati, or blood-relations, succeeded to the inheritance. In the later times of the Roman law the claims of blood-relations were more and more favoured, and in many important points were gradually preferred to those of merely civil kinsmanship.
The Institutes also notice three other modes of minor impor-/ tance by which universitates rerum were acquired. Other modes (1) Bonorum addictio, the giving over of the property of acquiring
unirersitates of a deceased person to a slave to whom the deceased rerum. had given his freedom. (2) Bonorum venditio, the compulsory sale of the whole property of an insolvent to a person who would undertake to pay most to the creditors. (3) Ex senatusconsulto Claudiano, which gave over a woman with all her property, who had cohabited with a slave, to the slave's master.
IV. RIGHTS AGAINST PERSONS.
78. A personal right is, as we have said before, a right which one person has against another; a right to constrain that other to give something to, or do something for, h
per80n8. or make something good to, the possessor of the right. The person to whom the right belonged, and the person against whom it existed, were said in Roman law to be bound by an obligation, the notion of an obligation being that of a tie between two parties of such a nature as to confer on the one a power of compelling by action the other to give, do, or make good something. The obligation did not give any interest in a thing, to get which might be the ultimate object of the proceeding, but
only gave a means of acquiring it, or, under the prætorian system, its value. 79. The three words, dare, facere, prostare, were used to
embrace all the possible duties an obligation could
create. Either the person bound by the obligation præstare.
was obliged dure, i.e. to give the absolute ownership of a thing; or facere, that is, to do or not to do some act; or præstare, that is, to make good something, as to make good a loss, or to furnish any advantage or thing, the yielding of which could not be included in the limited sense of the word “dare.' Every person who possessed a personal right against another was termed a creditor, and every one who owed the satisfaction of a claim, or was the subject of a personal right, was a debitor. The word creditor, of course, points to those transactions in which the possessor of the right trusted the person who was the subject of it; but the application of the terms was perfectly general, and must not be confounded with the English usage of the words creditor and debtor.
80. According to the theory of Roman law, all obligations Division of owed their origin either to the consent of the parties obligations. (contractus), or to injuries (delicta) done by one person to another, which gave the injured party a right to recompense. Contracts did not, however, include all cases, when an obligation arose from the mutual consent of the parties. The general name for such an obligation was conventio, pactum, conventum. A contract was properly an obligation arising by mutual consent, and made in one of the forms recognised by the civil law; but all obligations arising from mutual consent are spoken of as arising from contracts, because in the old law no other mode of expressing mutual consent was recognised, and mere agreements were not binding. 81. The mode of transferring res mancipi was, as we have
said in sec. 59, called mancipatio. Gaius (i. 119) Nexum.
. thus describes the form of transfer : Mancipation is effected in the presence of not less than five witnesses, who must be Roman citizens of the age of puberty, and also in the presence of another person of the same condition, who holds a pair of scales, and hence is called libripens. The purchaser, taking hold of the thing, says and affirms that “this thing is mine, ex jure Quiritium, and it is purchased by me with this piece of copper and these scales.” He then strikes the scales with the piece of money, and gives it to the seller as a symbol of the price.' But the generic term for this mode of sale was not mancipatio, but nexum,* for this form was used not only when a sale was its real object, but when under the form of a sale the parties intended to effect a contract of deposit or pledge. The purchaser took the thing handed over to him upon the condition of restoring it under certain specified circumstances, and thus a form of transfer came to be a form of contract where part of the contract was still to be executed.
82. In the time when the civil law had assumed its full shape, and apart from the alterations it received from Contracts the prætorian system, the nexum was used chiefly as made re. the mode of transferring res mancipi, as contracts of deposit and pledge were ordinarily made, as it was termed, re. That is, by the mere delivery of the thing, the person to whom it was delivered, and who accepted it, was bound by an obligation to hold it for the purposes for which it had been delivered. There were four heads of contracts recognised by the civil law, and this of contracts made re is the first noticed in the Institutes, although historically the recognition of such contracts was probably posterior to that of the more formal contracts, verbis and literis. Under contracts re were classed four kinds of contract, namely, the contracts of mutuum when the receiver had to return as much of the same kind of the thing he received, commodatum when he had to return the specific thing itself, depositum when the receiver was bound to keep safe a thing committed to his charge, and pignus when the receiver took a thing in pledge.
83. The second head of contract under the civil law was that of contracts made verbis, of executory contracts, that Contracts is, made in a prescribed form of solemn words. One made verbis. of the parties put to the other a formal question (stipulatio), to which the other gave a formal answer (responsio, promissio). To the validity of the contract it was necessary that the question should be couched in the form spondes ?' and the answer in that of 'spondeo. Do you engage? I do engage. It was long before equivalent words, such as promitto or dabo, were admitted as substitutes. A contract made by the pronunciation of these solemn words was said to be made verbis.
* Nexum est, quodcumque per æs et libram geritur, idque necti dicitur. FESTUS.