The Institutes: A Text Book of the History and System of Roman Private Law

Front matter

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Chapter II

RoMAN Law as THE LAW OF THE WORLD (THE EMPIRE). Jus Civile and Jus Gentium The Praetorian Edict .

The Dual System of Law .

The Edictum Hadrianum .

Roman Jurisprudence

The Republican Empire and the ‘petal Adminieeatien of Tatts The Monarchical Empire and the Imperial Legislation

Codification

The Result

CHAPTER ITI.

THE SUBSEQUENT FATE OF ROMAN Law, Byzantium .

Italy . 5 The Glossators . ; The Corpus Juris Canonici.

The Commentators The Law of the Pandects in Pi pao

PART ei THE SYSTEM OF ROMAN PRIVATE LAW.

Book I. The Law Of Persons

The Conception of a Person and the Kinds thereof

CHAPTER I.

NATURAL PERSONS.

Introduction Slavery 5 f ; : 0 ; Note. Relationships akin to Slavery

PAGE

CONTENTS xi

EN ae PAGE § 33. Cives and Peregrini . . ‘ ' : . . . : : 179 34. Paterfamilias and Filiusfamilias . ; ; : : : : . 184 § 35. Capitis Deminutio . 3 : - ‘ : ‘ F . . 186 § 36. Existimationis Minutio : : : : ; F ’ ‘ . Igo CGHAPTER TIE JURISTIC PERSONS. § 37. The Nature of a Juristic Person . ‘ : : - 5 : - 195 § 38. Societies and Foundations . 3 . : < ‘ ; és . 205

BOOK II. THE LAW OF PROPERTY. oe

CHAPTER I.

GENERAL ParT. § 39. Introduction . : = . : : : : é ° 5 Phe

I, JURISTIC ACTS.

§ 40. The Conception of a Juristic Act and the Kinds thereof. : 5 Bis § 41. Requisites of a Juristic Act . . : 3 : . : 5 Pith § 42. Motive, as affecting Juristic Acts 3 a 5 5 : : 7 220 § 43. The Qualifications of a Juristic Act . 6 ‘ : 5 . - 224 § 44. Capacity of Action . ; . . : . é . 6 229 § 45. Representation . : : : 3 : e 6 ; 5 o AGL

II], THE PROTECTION OF RIGHTS (LAW OF PROCEDURE).

§ 46. Introduction : - : : 5 ° 5 5 6 3 230 § 47. Roman Civil Procedure . ° : S : 4 4 5 > Oy § 48. The Legis Actio 5 - . 2 S F : 5 5 eva § 49. The Formulary Procedure . . . . : : . . 252 § 50. The Formula . : : . . ; : . : é 0 ROY § 51. Intentio and Actio . 5 5 5 : ; . : . a Pp § 52. The System of Actions. 6 é c 6 : : : 5 Ah § 53. Condemnatio and Exceptio . C 5 c ° . 0 ehh § 54. Actio Perpetua and Actio Paneth Tempus Utile 5 ; . 298 § 55. The Effect of an Actionat Law. . 5 6. ¢ ee ere SOT: § 56. The Procedure Extra Ordinem, Interdicta. In Integrum Restitutio . 306 § 57. The Procedure of the Later Empire . . : : . . 5 Bete

§ 58.

§ 59. § 60.

§ 61. § 62. § 63. § 64.

§ 65. § 66. § 67.

. Introduction : ‘ 6 4 3 5 . Real Contracts . ° :

. The Verbal Contract . 5 5

. The Literal Contract . ; - :

. Consensual Contracts .

CONTENTS

CHAPTER GI, Tue Law oF THINGS.

The Conception of a Thing ; : . .

The Different Kinds of Things . ° 5 : Real Rights : A . ; . . >

I, OWNERSHIP,

The Conception of Ownership 5 The Acquisition of Ownership. Figoneat Tapmiancton The Acquisition of Ownership. A. Derivative Acquisition . The Acquisition of Ownership. B. Original Acquisition Note. The Different Unions of Things The Protection of Ownership. . ° The Protection of Usucapio Possession : : 5 : The Protection of Juristic Possession. Possession and Ownership

II, JURA IN RE ALIENA,

Jura in Re Aliena in general

Servitudes . 5 Emphyteusis . : ‘ : : Superficies

Pledge ¢ : 5 .

Chapter III. The Law Of Obligations

I, THE CONCEPTION AND CONTENTS OF AN OBLIGATION.

. The Conception of an Obligation (Obligatory Right) . § 74. § 75-

Plurality of Debtors and Creditors The Contents of an Obligation .

Appendix

; suice Juris Negotia and fe Fidei Nee

II. THE MODES IN WHICH OBLIGATIONS ARISE.

. Contracts and Delicts ; ‘

A. Contractual Obligations.

357 358 368 371 372

379 380 386 387 388

391 394 401 410

§ 83. § 84.

§ 85. § 86.

§ 87. § 88. § 89.

§ 90. § 91.

CONTENTS

Quasi-Contracts . R : Pacts . 8

B. Delictual Obligations.

The Private Delicts of Roman Law .

Quasi-Delicts

Il. TRANSFER AND EXTINCTION OF OBLIGATIONS,

Transfer of Obligations : = Liability for Debts contracted by ae ; Extinction of Obligations .

CHAPTER I. FAMILY Law

Introduction 5 5 5 : 3 5 The Family : . : ° . : .

I, THE LAW OF MARRIAGE.

Marriage and the Modes of contracting it .

Marital Power . .

The Proprietary Relations a Husband ae Wife Dos . . 5 Donatio propter Nuptias The Termination of Marriage Second Marriages .

Celibacy and Chaaiceee

II, PATRIA POTESTAS.

The Modes in which Patria Potestas originates . The Effect of Patria Potestas .

The Extinction of Patria Potestas

III. GUARDIANSHIP.

The Different Kinds of Guardianship The Appointment of Guardians ; - .

The Effect of the Guardianship : C .

Termination of Guardianship . é ° : : The State as Guardian-in-Chief 5 os ° xiii PAGE 423 429

432 439

440 444 449

465 466

498. 502 506 xiv CONTENTS

Chapter II

THE LAW OF INHERITANCE. § 108. Hereditary Succession ; its Foundation and Conception § 109. Delatio and Acquisitio of the Hereditas . . . . § 110, Hereditas and Bonorum Possessio § 111. Intestate Succession . § 112. Testamentary Succession . : 5 § 113. Succession by Necessity § 114. The Effect of the Vesting of an innova: § 115. Bequests . c : : . . . : . § 116. Restrictions on Bequests . - ° . : . § 117. Universal Fideicommissa . ° : . . : . § 118. Mortis causa capio . : . : ° . C ° INDEX. . : o 10 . . . . 5 : a

EXPLANATION OF SOME ABBREVIATIONS

IN THE REFERENCES TO THE GERMAN AUTHORITIES.

Abt. = Abteilung.

R. = Recht.

G. = Geschichte.

RG. = Rechtsgeschichte.

RW. = Rechtswissenschaft.

ZS. = Zeitschrift.

Say. St. = Savigny-Stiftung.

606 609

Nee Gel ON

In view of the enactment of the German Civil Code, which came into force on January 1, 1900, Professor Sohm has found it necessary to make extensive alterations in his Zustitutes of Roman Law, and to add a considerable amount of new matter. In order that English readers may properly understand the nature and purpose of the principal alterations and additions, it will be desirable to give a short account of the past and present systems of legal education in Germany.

There is a considerable difference between the English and the German systems of academic legal instruction. The practice of the English Universities has been to confine the teaching of law to a comparatively limited number of selected subjects. The German system of academic instruction, on the other hand, has always embraced the whole range of law: Private Law, the various departments of Public Law, viz. Civii Procedure and Bankruptcy, Criminal Law, Criminal Procedure, Constitutional (and Administrative) Law, as well as International Law and Ecclesiastical Law. ‘The student is thus furnished with all the legal knowledge he requires in the exercise of his profession. But whereas each of the several departments of Public Law was comprehensively dealt with in a special course of lectures of its own, Private Law (ice. the Law of Property and the Law of Family Relations) was not uniformly dealt with in a single course of lectures, but formed the subject-matter of two distinct courses, both covering the same ground, viz. the lectures on ‘the Pandects’ and the lectures on ‘German Private Law’ (‘Deutsches Privatrecht’). This twofold division was connected with the twofold origin of the

SOHM ; LEDLIE b

Xvi INTRODUCTION private law of Germany. The lectures on ‘the Pandects were concerned with Roman law in the form in which it had been ‘received’ as the Common Law of Germany. The lectures on ‘German Private Law’ were concerned with those institutions of native German origin which had remained in force, to a greater or less extent, all over the country, in spite of the reception of Roman law, and they frequently included an account of that special branch of private law which is concerned with mercantile relations and bills of exchange (‘ Handelsrecht’ and ‘ Wechselrecht’). These two courses of lectures supplied, until within quite recent times, the foundation for the entire teaching of Private Law, not only in those parts of Germany where the law of the Pandects was actually in force as the common law of the land, but also in the territories where the law of the Pandects had been entirely superseded by codes of modern origin’. In these latter territories the codified private law was treated in the same way as the ‘ particular’ private law of any other part of Germany, i. e. it was set forth, in a condensed form, in short supplementary lectures founded on the detailed instruction previously imparted in the lectures on the common (Pandect) law.

The object of the lectures on Private and Public Law hitherto mentioned was to explain the law actually in force in Germany. The German curriculum has, however, always included certain other lectures which are merely designed to prepare the mind of the student for the several branches of legal science. Among the lectures of this kind, those on what is called ‘Juristische Encyklopadie’ (and ‘Methodologie’) must be mentioned in the first place. They were intended (like the English lectures on General Jurisprudence) to explain the fundamental legal conceptions, and the leading classifications and sub-divisions of law, and thus to supply the beginner with a general introduction to all the departments of legal study. The lectures on the ‘Institutes’ and on the ‘ History of Roman Law,’ which were also of a preparatory character, had

* Thus the Prussian Landrecht of Saxon Civil Code of 1863 did the same 1794 superseded the law of the Pandects _ for the countries on the left bank of the in the old provinces of Prussia, and the Rhine and for the Kingdom of Saxony French Civil Code of 1805 and the respectively.

INTRODUCTION xvii special reference to the study of the Pandects. The Institutes gave the student a comprehensive and systematic account of pure Roman private law (at the time of Justinian), thus enabling him to understand the details of the modified Roman law as expounded in the Pandects. The lectures on the ‘History of Roman Law’ were devoted to an account of the historical development of the private law of Rome. Lastly, the lectures on the ‘ History of German Law’ performed an analogous function in regard to German Private Law, their main (though not exclusive) object being to prepare the beginner for the study of German Private Law.

The coming into force of a Civil Code for the whole German Empire has necessitated far-reaching changes in the system of legal education. The effect of the Code is to establish a uniform body of private law for the entire German Empire, subject only to such special reservations as are made by the ‘ Introductory Statute’ (‘ Einfiihrungsgesetz’) or the Code itself in favour of the ‘particular’ laws of the several Federal States. This new ‘German Civil Law’ (‘das deutsche biirgerliche Recht’) has naturally become the pivot and foundation of all legal instruction. The place formerly occupied by the ‘Pandects’ and by ‘German Private Law’ in the academic teaching of law is now assigned to German Civil Law. The private law of the separate States (the ‘particular’ private law) has been reduced to a subordinate position, and can accordingly only be dealt with in lectures supplementing those on the law of the German Civil Code (the Imperial private law), unless indeed—as is not infrequently the case—it is expounded in immediate connexion with the teaching of the German Civil Law.

German Civil Law having become the centre of academic legal instruction, it became necessary to determine what lectures would best serve as a preparation for its detailed study. The law of the Civil Code being partly of Roman and partly of German origin, there could be no hesitation in retaining the lectures on the History of Roman and German Law. On the other hand, it was necessary for the purpose of supplying a foundation for the study of the institutions of the Civil Code which are based on German law, to replace the exhaustive lectures on ‘German Private Law’ by a mere outline of

b 2

Xviil INTRODUCTION the subject, called the ‘Elements of German Private Law’ (‘Grundziige des deutschen Privatrechts’), which serve, at the same time, as an introduction to the study of the ‘particular’ private law still in force in the several German States. But it was quite impracticable to retain the two systematic courses of lectures on the ‘ Institutes’ and the ‘Pandects’ by way of introduction to the study of those parts of the Code which are of Roman origin. It was therefore decided by the several Federal governments to replace those two courses by a single course called ‘The System of Roman Private Law.’ The lectures on ‘The System of Roman Private Law’ will accordingly combine the special advantages previously derived from the lectures on the Institutes and from those on the Pandects. The new course being of an introductory character, it will have this feature in common with the Institutes that it will be confined to the elements of Roman Private Law, though the fundamental conceptions and leading ideas of Roman law will be explained with some fullness. On the other hand, it will take over from the Pandects the function of explaining, at the same time, the modified form in which Roman law was in force as the common law of Germany. And thirdly, in view of its special bearing on the teaching of the German Civil Code, it will be highly desirable in the new course to indicate, however briefly, the shape which the institutions of Roman origin contained in the Code have finally assumed.

These are the requirements which Professor Sohm has sought to meet in preparing the latest (the seventh, eighth, and ninth) editions of his Zzstitutes. They are sufficient in themselves to account for a large proportion of the alterations and additions. The learned author has, however, still further increased the size of his book by considerably enlarging the historical portion. His object has been to afford the student a fuller insight into the historical development of Roman law. He has accordingly added to the ‘System of Roman Law’ what is practically an abridged ‘History of Roman Law. This accounts for the insertion of several new sections (e. g. §§ 9 and ro) and of a new chapter (§§ 23-28) dealing with the fate of Roman law in the East and West after the codification of Justinian, and more particularly with the literary history of the

INTRODUCTION xix

Corpus juris civilis. The author has obviously aimed at furnishing the student, within the compass of a single book, with all the knowledge of Roman law he requires under the new system of legal instruction. In spite of these changes, however, Professor Sohm does not mean to alter the fundamental character of his work: it is still designed as an introduction to the study of Private Law. The original title of Zs¢itutes has accordingly been retained, but with the addition of the words, ‘A Text-book of the History and System of Roman Private Law.’ The book is, in short, framed as an institutional treatise on Roman law.

Besides the lectures on Roman and German law, the new regulations require an introductory course of lectures, called ‘ Einfiihrung in die Rechtswissenschaft’ (Introduction to the Science of Law). These lectures can have no other object than to serve as a general preparation for all the various branches of legal study. Their subject-matter is therefore identical with that of the above-mentioned lectures on ‘ Encyklopadie’ and ‘ Methodologie,’ which are designed to furnish the beginner with everything he may require in the way of a preliminary training, by explaining fundamental legal conceptions, by giving him a survey of the entire field of law, and by instructing him as to the method he should pursue in order to obtain a mastery of the science with which he is concerned.

The present system of legal education accordingly provides for three series of lectures of a preparatory character, viz. (1) Introduction to the Science of Law; (2) History and System of Roman Private Law; and (3) History of German Law and the Elements of German Private Law.

From the preparatory lectures we have to distinguish those which set forth the various branches of the law actually in force in Germany. These are the lectures on (1) German Civil Law (as supplemented by the ‘particular’ private law of the several States) ; (2) Mercantile Law and Bills of Exchange?; (3) Civil Procedure ; (4) Bankruptcy’;

2 These subjects are dealt with in a 3 The law of Bankruptcy is thus separate course of lectures, though (as treated separately, though it is, in the already stated, p. xvi) they really only main, merely a branch of the law of form a special branch of private law. civil procedure.

XX INTRODUCTION

(s) Criminal Law; (6) Criminal Procedure; (7) Constitutional and Administrative Law; (8) International Law; and (9) Ecclesiastical Law.

Since the enactment of the German Civil Code every German University imparts systematic instruction in each of the twelve subjects just enumerated, viz. in the subjects of the three introductory lectures and in those of the nine other lectures*. The student is further recommended to attend certain other lectures, the object of which is, on the one hand, to give him a deeper insight into the essential character of legal science—such, for example, is the object of the lectures on the Philosophy of Law—and, on the other hand, to familiarize him with some extra-legal topics—such as Political Economy and Forensic Medicine—a knowledge of which is indispensable in the exercise of his calling.

This brief survey may suffice to explain the position assigned to Roman Law in the present system of legal education, and the function which Professor Sohm’s treatise, in its altered form, is intended to fulfil in the new order of academic instruction. It is obvious that the new system involves a considerable restriction of the study of Roman law. In what way then—it may be asked—can the book in its present shape be said to answer the requirements of legal education in England ?

There is every reason for holding that Professor Sohm’s treatise in this its latest form will be no less useful to English students than it

* The new Lucyklopadie der Rechtswassenschajt, edited by Professor Birkmeyer, of the University of Munich (Berlin, 1901), consists of a collection of comprehensive treatises, each of which deals with one of the twelve subjects mentioned in the text. The object of this work is to present a summary view of the whole law actually in force in Germany since January I, 1900. The Encyclopaedia will serve the purpose which has hitherto been served by Franz von Holtzendorff’s Lucyklopadie der Rechtswissenschaft (see the present writer’s article in the Law Quarterly Review, vol. i, pp. 62-79). The article entitled ‘Einfiihrung in die Rechtswissenschaft,’ which the same writer has contributed to Birkmeyer’s Encyclo- — paedia, contains a fuller account of the classifications of law and of the several branches of legal study than can be conveniently supplied within the limits of this Introduction. The tenth edition of the late Professor Arndt’s /zvristische Lncyklopidie und Methodologie, which is about to be published under the editorship of the present writer, will deal with the subject of methodology, with special reference to the new order of legal studies in Germany.

INTRODUCTION xxi has proved to be in the form in which it was originally presented to English readers,

In the first place, it is clear that the additions to the historical section of the work will be of the greatest interest to all students of Roman law. As it now stands, the historical portion embodies a concise but complete history of Roman law. An acquaintance with the history of the Corpus juris in the Middle Ages and in modern times is particularly important, because, without it, it is impossible properly to appreciate the significance which Roman law possesses for modern Europe. The fourth German edition of the Institutes (on which the first English edition was based) did not deal with this period of the history of Roman law. And it was with a view to furnishing the necessary information on this subject that the present writer included in his Introductory Essay prefixed to the first English edition (pp. xiii-xxviii) a brief account of the later history of the Corpus juris, which is no less intimately associated with the influence exercised by Roman law in England than it is with the influence which Roman law has exercised elsewhere.

And this brings us to the second, the practical aspect of the question we have raised. The influence of Roman law on the law of England is by no means so insignificant as it is sometimes assumed to be*®. ‘Texts of Roman law,’ as Sir Henry Maine says, ‘have been worked at all points into the foundations of English jurisprudence *.’ The earliest treatises on the English Common Law (dating from the twelfth and thirteenth centuries) are the direct outcome of the study cf Roman law in England. In addition to this, certain courts of limited jurisdiction, such as the Ecclesiastical and Admiralty Courts, have always recognized the binding force of Roman law. The development of Equity again, which has had such far-reaching effects on the modern law of England, was largely influenced by Roman law. And the importance of Roman law for

5 See the present writer’s Introductory Essay just mentioned, pp. xxviii ff., and his. article in the Ze¢tschraft fir vergleichende Rechtswissenschaft, vol. xi, p. 253 ff.; Pollock and Maitland’s //story of English Law, book i, chapter 4, and the account of Glanvill and Bracton in chapters 5 and 6; Maine’s Essay on ‘Roman Law and Legal Education’ in his Lectures on Vllage-Communities tx the East and West, &c.

English students becomes still more apparent if we remember, on the one hand, that Roman law is actually the law of the land in large portions of the British Empire, and, on the other hand, that the multifariousness of international relations may at any time make it the duty of an English Court to decide a case in accordance with a legal system founded on Roman law. Lastly, it should be borne in mind that the theory of Roman law furnishes the only common ground on which the civilized nations of the world can build up a body of fixed rules for regulating the ever-multiplying international relations of modern life. It is hardly necessary to point out that what the practical English lawyer has to take into account in every case is not pure Roman law, but Roman law in its modified form, as adapted to the requirements of the present day. Now the object of the majority of the additions to the systematic part of Professor Sohm’s work is (as already stated) to explain the changes which Roman law has undergone in modern times. It is to be hoped, therefore, that an English version of the latest (double) edition of the Jvstitutes will be at least as valuable to English students of law as the English version of the earlier edition has evidently proved ‘to be.

ERWIN GRUEBER.