ROMAN LAW
Instructional goals
The course has as its objective the learning of the fundamental elements of law, especially private law, starting from the knowledge of private law and the Roman civil process, with finalized consideration of the Roman system of law’s sources. Particular attention is paid to the ways in which Roman jurisprudence operates and to technical procedures – especially argumentative - followed by it.
Intended learning outcomes
Knowledge and understanding: The student will acquire full knowledge of the general categories of Roman law and its developments in modern law. The acquisition of such knowledge will be ascertained through intermediate checks. At the end of the course there will be a final exam in the form of an oral interview, which will be followed by the achievement of the grade and the corresponding CFU.
The presence of online content in the digital platform of the course will make it possible to verify in real time the skills acquired by the students.
Communication skills: The course will also enable the student to acquire a terminological precision that will allow him to master the technical-juridical vocabulary of law, by the experience gained in the study of Roman law.
Learning skills: The technical-juridical knowledge acquired during the Roman law course will allow the student to autonomously understand and interpret the most relevant aspect of modern legal discipline. The student will develop a knowledge of the institutional aspects of the subject, which will allow him to continue to deepen, even independently, the issues addressed and to undertake the various post-graduate professional training courses.
Course Contents
"Istituzioni di diritto romano" introduces an understanding of how roman jurisprudence identifies concepts and legal institutions, and then processes them.
The course consists of two parts: a general part, which focuses on the institutes of Roman private law, and a specific part, directed to investigate the modes of acquisition of property iure gentium, as outlined in the title de adquirendo rerum dominio of the Digest (D. 41,1).
The examination of the normative and jurisprudential data, analyzed in a historical and diachronic sense, is always connected to the broader economic, social, political and cultural context, in order to grasp its purpose and concrete implementation. The subject is considered through the identification of a periodization that allows the treatment for significant moments and phases. This analysis, in principle, generates a tripartition (archaic period, period of Mediterranean expansion, Late Antiquity and Justinian age).
Reference Books
L. Fascione, Storia del diritto privato romano, 3ª ed., Giappichelli, Torino 2012.
M. Balzarini, Le Istituzioni di Gaio in traduzione italiana, Giappichelli, Torino 2000.
Teaching Methods
Within each identifiable historical age, the discussion is thus carried out: reflection on the general characteristics of law in the period studied; analysis of the formation of law partitions. This expository structure is conceived in an elastic way, in order to allow the possibility to follow the developments of each specific juridical phenomenology and therefore to be able to perceive changes and constants. The course of lectures will be supplemented by exercises carried out by specialist teachers of single subjects
Assessment Method
Students will be invited to carry out written self-assessment tests on the most relevant topics encountered during lectures.
The final assessment of the level of learning achieved, with the vote assignment and the relative CFU, will be carried out by means of a single oral test.
For the purposes of assigning a mark out of thirty, the following will be evaluated: knowledge of the institutes, their genesis and their purposes (65%); ownership of language and technical vocabulary (20 %); as well as the ability to build relationships between the structure of society in different times and the need to use various legal institutions (15%)
Thesis assignment criteria
Students who wish to graduate in the discipline will discuss the topic of the thesis and the methods of carrying out the related research directly with the teacher.
Week 1
The Historical and Constitutional backround of Roman Law. A brief survey of Roman history: primitive Rome and the kings; the Senate and the comitia curiata. The Roman Republic and its officials. The struggle between Patricians and Plebeians: the tribunes of the plebs; the comitia centuriata and the concilia plebis. The fall of the Republic and the advent of the Principate. The powers of the princeps. From the Principate to the Dominate. Rome in late Antiquity.
Week 2
The notion of ius and the birth of the lex. The Pontifical jurisprudence and the beginnings of scientific treatment of the law. The Twelve Tables and the development of the ius civile. The legis actiones and the formalism of archaic law. The sources of Roman law in the lists of Gaius, Pomponius and Papinian. The ‘multiplicity of systems’: ius civile, ius honorarium, ius gentium. The emergence of ius naturale. Ulpian and the ius privatum/ius publicum dichotomy. The ‘bureaucratic jurisprudence between Diocletian and Constantine. The role of the codex in late Antiquity and the ‘law of Citations’. The barbarian Codes. Justinian’s legislation: the Code, the Digest and the Institutes.
Week 3
Law of persons and family law: freedom, citizenship, family. Persona, Status, Caput. Birth and death.
Populus Romanus as a corporation.
Freedom and Slavery: position of slaves, in law and fact. How slavery arises and how it ends. Consequences of manumission. The Augustan legislation on manumission.
Citizens and non-citizens: cives Romani, Latini, peregrini.
Roman Family and the patria potestas. Creation and termination of patria potestas. Adoption.
Proprietary incapacity of children in power.
Obligations of children in power.
Week 4
Marriage: main characteristics. Matrimonium and manus. Iustae nuptiae and non-Roman marriage. Dowry. Divorce.
Guardianship. The three kinds of tutela impuberum. Functions and liability of the tutor impuberis. Tutelage of women and its ‘irrationality’ according to Gaius.
The protection of persons under the age of twenty-five (cura minorum). Guardianship of lunatics (cura furiosi) and spendthrifts (cura prodigi).
Week 5
The evolution of the ius civile: the means of protection, the praetor and the judge, the edict and the formulae.
The evolution of the legis actiones system.
Crisis of the legis actiones.
Procedural subjects and formulae.
The parts of the formula.
Classification of actions.
The procedure before the magistrate.
The litis contestatio and its effects.
The procedure before the judge.
The execution of the sentence.
Other powers of the magistrate exercised for justice purposes.
Beyond the legis actiones and the formulae: the so-called cognitio extra ordinem.
The appeal judgment.
Week 6
Law of property and rights in rem over another man’s property.
The law of things. Classifications of res. Conception of ownership. Terminology and fundamental distinction: actions and rights in rem and in personam. Ownership and possession. Possessio as a fact: its protection.
Usucapio. Longi temporis praescriptio and Justinian’s reforms.
Modes of acquiring ownership.
Praedial servitudes (servitutes or iura praediorum): classification.
Personal servitudes (ususfructus and usus); other figures of servitudes (habitation and operae servorum).
Other rights in rem over another man’s property (emphyteusis, superficies, real security).
Week 7
Law of obligations.
The structure of the Roman obligation and the problem of its genesis. From the idea of debt to the notion of iuris vinculum.
Gaius’ classification of the sources of obligatio and the quadripartition in Justinian’s Institutes. Delicta or maleficia.
Contracts. Contrahere and contractus.The notion of ‘compromise’ (pactum) and the so-called ‘innominate contracts’. Contracts and quasi-contracts.
The classification of Gaius and Justinian. Stricti iuris and bonae fidei actions.
The consensual contracts.
Sale (emptio venditio). Definition. Formation of the contract. Subject-matter and pretium. Effects of the contract. Duties of the seller. Duties of the buyer. Warranty against eviction. The aedilician Edict and its domain. Postclassical development: Constantine’s reform of emptio venditio. The law of sale under Justinian.
Hire (locatio conductio). Definition, scope and character of the classical law of hire. The problem of ‘trichotomy’. Formation of the contract. Effects of the contract. Liability and risk.
Partnership (societas). Conception and formation. Partnership of co-heirs (consortium). Peculiar features of societas. Share in profit and loss. Liability. Determination and actio pro socio.
Mandate (mandatum). Conception and terminology. The origins of mandatum. Social basis of the contract. Mandatum and actio negotiorum gestorum. Liability of the mandatarius. Structure of the actio mandati. Mandatum credendi. Postclassical development.
Week 8
The ‘real contracts’. From the obligation re in Gaius’ Institutes to the Justinian’s classification of real contracts (mutuum, commodatum, depositum, pignus). The fiducia.
The contract verbis: sponsio and stipulatio. Origins, classical form, function, degeneration.
The contract litteris. The brevity of Gaius’ treatment about nomen transcripticium or expensilatio and the function of the classical contract. The contract litteris in Justinian’s Institutes.
Summary considerations on the concept of contract. The problem of the negotium iuridicum.
Week 9
Transfer of obligations. Suretyship: sponsio, fidepromissio, fideiussio.Discharge of obligations: solutio, acceptilatio, confusio, compensatio, pactum de non petendo). Structure and effects of novatio.
Crime and delict. Penal character of delictal actions. Noxal liability and noxal surrender. Damage by animals.
Furtum and rapina. Archaic features of theft. The definition of theft and its constituent elements. The plaintiff. Reipersecutory actions. Lucullus’ edict of 76 b.C. on violent damage to property by armed bands and the scope of the actio in quadruplum.
Iniuria. Classical scope of the delict. Earlier development. Offences against the personality. Penal character. Sulla’s reform of iniuria (lex Cornelia de iniuriis)
Loss caused by injury to things (damnum iniuria datum). The lex Aquilia and the essential elements of the delict. The concept of damnum. Liability: dolus and culpa. The actio legis Aquiliae and its further development.
Praetorian delicts. Actio quod metus causa (extortion) and actio de dolo (fraud).
Quasi-delicts (iudex qui litem suam fecerit, actio de effusis vel deiectis, actio de posito et suspenso). The meaning of the expression teneri quasi ex maleficio
Week 10
Law of succession.
Fundamental notions: universal succession (successio in ius). Heres and hereditas. Types of heres. Device to mitigate the inconveniences of universal succession.
General principles of bonorum possessio introduced by the praetorian law.
Intestate succession. The intestate succession under the XII Tables and the bonorum possessio ab intestato. Senatusconsultum Tertullianum and Orfitianum. The system of the Novels.
Testamentary succession. Testamentum per aes et libram and the early will. Bonorum possessio secundum tabulas: the ‘praetorian will’. Later forms of will. The classical military testament. Substitutions. Restriction on the power of testation.
Succession against the will. Bonorum possessio contra tabulas. The querela inofficiosi testamenti.
Forms of legacy. Restrictions on amount of legacies. Codicils and fideicommissa.
Gifts.
Week 11
Modes of acquiring ownership: Roman and modern visions.
The art. 922 of the Italian Civil Code and the modern contrast between ‘original’ and ‘derivative’ modes of acquiring ownership. The elaboration of this non-Roman dichotomy dates back to Hugo Grotius.
Gai inst. 2,65: the distinction between transfer of ownership derived from ius civile and ius naturale. The notion of ‘natural law’ in Gaius and the role of ‘natural reason’ (naturalis ratio). Ius naturale and ius gentium in the Institutes of Gaius.
The duplex dominium: ‘Quiritary’ and ‘Bonitary’ ownership.
Modes of acquiring ownership in the Tituli ex corpore Ulpiani (XIX,2): similarities and differences compared to Gaius’ list.
Mancipatio, in iure cessio, usucapio as modes of acquiring ownership according to civil law.
Traditio (conveyance, delivery) and ius naturale.
Gai 2,66 – 79: Occupation. Alluvio, avulsio, in medio flumine insula nata. The principle superficies solo cedit and its applications. Litterae chartulis sive membranis cedunt. The tabula picta. Specification.
Week 12
The title 41,1 of the Digest de adquirendo rerum dominio: modes of acquiring ownership according to ius gentium and ius civile. The problem of the Res cottidianae.
Occupation: similarities and differences between Gaius’ Institutes and the Res cottidianae.
Increments of soil by river in D. 41,1,7,1-6 (Gai 2 rer. cott.).
Specification: the dispute between Sabinians and Proculians turns out to be resolved by a ‘compromise’ (media sententia)
Merger: confusio, commixtio, accessio.
‘Sometimes the mere intention of the owner is enough to transfer the thing even without delivery’ (D. 41,1,9,5).