A Summary of the Roman Civil Law

SUMMARY

OF THE

ROMAN CIVIL LAW,

ILLUSTRATED BY

COMMENTARIES ON AND PARALLELS

FROM THE

Mosaic, Canon, Mohammedan, English, and Foreign Law.

WITH AN APPENDIX, MAP, AND GENERAL INDEX.

PATRICK MAC CHOMBAICH DE COLQUHOUN,

Juris utriusque Doctor, Heidelberg; LL.D. and M. A. St. John's College, Cambridge; British Member of the
Supreme Council of Justice of the Ionian Islands; and of the Bar of the Inner Temple; decorated with the Nishan
Iftikar of the Othoman Empire of the Firft Clafs in Brilliants; G.C.S. of Greece; K.M. of Saxony and of
Oldenburg; distinguished by the Gold Medal of the Senates of Lübeck and Hamburg, etc.; late Pleni-
potentiary of the Hanseatic Republics at the Sublime Porte, in Persia and at Athens; a Coun-

cillor of Legation of H.R.H. the Grand Duke of Oldenburg; and an Aulic Councillor of

H.M. the King of Saxony; Honorary Member of the Royal Academy of History

of Madrid; of the Royal Antiquarian Society of Athens, and of the
Imperial Academy of Sciences of the Sublime Porte; F.R.S.L.;

F.R.G.S.; late Honorary Sec. of the Jur. Soc.

Χρώμεθα γὰρ πολιτεία οὐ ζηλούση τοὺς τῶν πέλας νόμους, παράδειγμα δὲ αὐτοὶ μᾶλλον
ὄντες τισὶν, ἢ μιμούμενοι ἑτέρους. ΘΟΥΚ. ΞΥΓ. Β. κεφ. λζ'.

VOL. III.

По

LONDON:

V. AND R. STEVENS AND SONS,

(LATE STEVENS AND NORTON,)

LAW BOOKSELLERS AND PUBLISHERS,

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MDCCCLIV.

#73567

v 12 1886

The Auction

PREFACE.

FOUR years have nearly elapsed since the appearance of the first part of this work, which is now offered to the public in its complete state.

In confining it to its present dimensions, care has been taken to omit nothing which is necessary to the elucidation of so comprehensive a subject, and a great mass of matter has been necessarily compressed into as small a space as its nature allows.

A certain inequality will be observed in the number of the sections devoted to different subjects: this inequality is, however, intentional, and done with the view of rendering clear the more disputed, and the more important points in Roman jurisprudence, where such appeared requisite. On the other hand, those about which there exists little or no doubt, have been contracted as much as is compatible with clearness. Again, stress has been laid on those parts of the subject which involve principles still recognised; while the more ephemeral portions, applicable only to the then state of Byzantine society, have been reduced to a narrower limit.

The repetitions observable throughout the work have been introduced in order to render the particular branch of the subject under consideration clear to the reader, without subjecting him to the inconvenience of frequent reference from one volume to another. Thus it occurs, that facts are occasionally represented from different and appropriate points of view, in order to the better elucidation of the matter under consideration. The titles on contracts and actions are instances of this method of treating the subject. In the former, the actions applicable to each individual contract are shortly alluded to under that head, and more fully developed under actions where, on the other hand, the contract is again shortly recapitulated, in order to show the principle upon which the action is based. Thus, cause and effect will always be found together, without necessarily involving reference, the object being to make each title complete in itself, and each independent of the other.

The criminal law has been confined to the narrowest limits, for, as it is based on decrees of the Senate, and imperial constitutions, it involves no very valuable principles. In the Pandects the space dedicated to it is comparatively small; in the Code, on the other hand, it is more fully treated of. To follow in greater detail its

gradual and frequent variations would have been both useless and unprofitable. It is, moreover, worthy of remark, that the Romans, preferring restitution to punishment, a very considerable portion of that which in England belongs to the criminal law is, in that of Rome, included under civil process, of which theft furnishes a very striking example.

For his historical materials of the criminal law the author is much indebted to the excellent work of the erudite Professor Walter, by which the work of Heineck, by far the best concise view of Roman legal antiquities up to the period at which the former wrote-has been intirely superseded. The arrangement of Walter, too, is to be preferred for the subject to that of Heineck, who follows the order of the Institutes-certainly not the best for legal antiquities.

The canon law has simply been noted where it differs from the civil. Generally the former may be called a bad paraphrase of the latter. Often devoid of principles, or founded upon those which are erroneous, its value consists chiefly in demonstrating the fate and history of the civil law since Justinian, while, in its composition, it resembles the Codex rather than the Pandects.

The author cannot close this preface without acknowledging the assistance he has derived from the works of that excellent Jurist, his deceased friend and teacher, the Right Honourable Professor Thibaut, of Heidelberg, who, in his lecture room, was playfully erudite-in his works most concise, perspicuous and convincing; to his old friend and school-fellow, W. S. W. Vaux, of the British Museum, for the valuable information he has afforded him, particularly on the coinage of the Romans; and to his good friends G. T. Mowbray, of Grangewood and the Inner Temple, and Robert Burnaby, of H. M.'s Customs, for their valuable assistance with the Index.

Lastly, the author's obligations are due to living and deceased authors, whose works have been used in this Summary; they have been duly acknowledged in notes throughout the book, but he tenders this general apologie for any possible inadvertencies in not recognising the assistance he has derived from their learned labors.

Had the author been guided by inclination, rather than discretion, the work, instead of being completed in three volumes, would have swelled to five, and however he may have regretted having had to contract the politico-historical portion of the work, as he has done in the first part, he is now convinced that he has adopted the most prudent course.

The matter thus rejected the author may, nevertheless, be tempted, at some later period, to embody in another form.

Temple, 13th April, 1853.

THE AUTHOR.

CONTENTS.

PART V.

TITLE XXII.

Contractus Consensuales-Emptio et Venditio-Merx-Pacta Prohibita-Consensus-

Pretium-Redhibitio-Mora-Litis Denunciatio et Evictio-Pacta Adjecta-Addictio

in Diem-Pactum Commissorium-De Retrovendendo-Reservati Dominii et Reservatæ

Hypotheca-Protimiseos-Quibus Modis Tollitur Emptio Venditio-Actio Empti et

Venditi-Pertinentia-Locatio Conductio-Publica-Privata-Pensio, Merces, Reditus

-Mora et Damnum-Relocatio-Sublocatio-Quibus Modis Tollitur Locatio-Actio