Principles of Roman Law
Tuesdays, 9.45 am–11.15 a.m, room 416 Old Faculty (Collegium Iuridicum I), Main Campus
The interactive version of the course may be found here. Disclaimer: The English translations of the Latin texts are taken from the Public domain, only minor corrections have been introduced.
Winter Semester:
UNIT 1: Introduction. Why Roman Law?
What is Roman Law. Its role in the legal studies. Reception of Roman law and its doctrine. Presentation of the course. Roman definitions of law, partitions of law and basic legal notions. ius civile, ius honorarium, ius gentium, ius naturale.
Reading: R.W. Leage & A. M. Prichard, Roman Private Law, Part 1 (Outline of the History of Roman Law); E. Levy, Natural Law in Roman Thought; F. Schulz, Prinzipien des römischen Rechts: Isolation.
Sources: D. 1.1.1 and Glossa, G.1.1-7; I. 1.1.1., Unit1: Presentation
UNIT 2: Sources of Roman law 1, 2, 3
Early law and its creation. XII Tables, interpretation, jurisprudence;
Edict, imperial law. From mass of law to codifications
Early law and its creation. XII Tables, interpretation, jurisprudence;
Edict, imperial law. From mass of law to codifications
A) Archaic Law. The Law of Twelve Tables and procedure per legis actiones.
B) Sources of (Pre-)classical Law: The Rise of the Jurisprudence: From the Pointiffs to the Imperial Chancery.
C) Edict and jurisdiction (and formulary procedure): Magistrate-made law.
D) New forms of law creation. Imperial constitutions (and extraordinary procedure), decrees of the senate; jurisprudence and the massive growth of the body of law.
E) Attempts at Ordination of the whole Body of Law. Postclassical legal collections. Justinian and his codification. Post-justinianic fate of Roman law.
Readings: R.W. Leage & A. M. Prichard, Roman Private Law, Part 1 (Outline of the History); K. Raaflaub, Between Myth and History: Rome’s Rise from Village to Empire (the Eighth Century to 264), ch. 6 of A Companion to the Roman Republic.
O. F. Robinson, The Sources of Roman Law. Problems and Methods for Ancient Historians, chp. 2: Sources and and ch. 4: Settling disputes
Sources: The Law of Twelve Tables – Pomponius, Enchiridion – Livy, on Twelve Tables
Sum up: Presentations
UNIT 3: The Law of Persons I. Pater Familias & Familia 1, 2, 3
The notion of person. Natural persons vs. enterprises. Divisions of Persons. Citizens vs. Non-Citizens. Free vs. Slaves. Autonomous vs. Dependent. Roman Familia. Pater Familias and his Power.
Readings: J. A. Crook, Law and Life in Rome, chp. II: Law and Status, IV: Family and Successions
J. A. Crook, Patria potestas, F. Schulz, Part II, chapter I: Single Persons; chapter II: Parents and Children.
Sources: G.1.9-12; 48-52; 82-107
UNIT 4: The Law of Persons II: Acting in Law. Subjects in Commerce
Acting in Law. Direct and Indirect Representation. Slaves, Persons in Power and Their Participation in Commerce. Pater's Liability between ius civile and ius honorarium. The «system» of «actiones adiecticiae qualitatis».. Cases. Noxal Liability.
Reading: F. Schulz, Part II, chapter I: Single Persons. G. 4.66-81 and De Zulueta, Commentary on Gai Inst. 4.66-81. Cf. also Schulz, Part I (Law of Actions) as well as the presentation on the Edict.
UNIT 5: The Law of Persons III: Autonomous persons Limited. Guardianship
The notion of Guardianship. Tutela: Wards and Women. The Reasons thereof. Rights and Duties of a Guardian. Women and their Standing in Law. Curatela and its Subjects. Protection of Minores. The Scope of curatela minorum. Law of Persons: a sum-up: Legal Capacity/Capacity to Legal Transactions
Reading: F. Schulz, Classical Roman Law: Guardianship.
UNIT 6: The Law of Persons IV: The Roman Law of Marriage
The purpose of marriage. Various models of marriage in History. The originality and the aim of the Roman constuction. Affectio Maritalis. Pre-requisites of Marriage. Modern Implications
Reading: F. Schulz, Classical Roman Law: The Husband and Wife; The Principles of Roman Law: Humanitas. Urbanik, Husband and Wife; Idem, On the Uselessness of its all. Consider as well the institution of marriage as such, its format in the past and nowadays.
UNIT 7: The Law of Things I: Property and Possession. Introduction
The notion of Property. Real and personal rights. Definition of property in the tradition legal. The object of property: res – definition/division of things.
Presentation–General Notion
Reading: F. Schulz, Classical Roman Law:Property; Possession, P. Stein, J. Shand, Legal Values In Western Society, Edinburgh 1974, “Property”
Unit 8: The Law of Things II: Property and Possession and their Protection.
Rei Vindicatio. Actio Publiciana. Locus Standi. Types of Property. Protection of Possession – Interdicts.
Unit 9: The Law of Things III: Acquisition of Property and Possession
Aquisition of Property and Possession. Derivative Modes. Usucaption. Original Modes.
UNIT 10: Rights in Alien Property/Limited property rights:
Real Rights in General and their Protection. Servitudes/Easements. Usufruct. Rights in Alien Land. Pledge and Mortgage.
Reading: F. Schulz, Classical Roman Law
UNIT X. The mock-exam
Saturday, 24th of February 2024, 9.30 am, Collegium Iuridcum II (Lipowa), Room 2.6, 1 source text for a guided analysis; 1-2 cases loosely based on the source text. Writing time: 2 hours. It is an open book exam so you may bring all your materials with (incl. dictionaries etc, some copies of the handbooks shall be provided).
Summer Semester:
UNIT O: Successions
The notion of Succession. ‘Natural’ vs. Succession by Will. Succession based on the Law of XII Tables. Early Roman Wills. How to circumvent the Limitations? Praetorian vs. Civil Succession Types of Wills. Testamentary Provisions in Detail. The Will of Kronion.
UNIT 11: The Law of Obligations: the Introduction.
The Origins and the Division thereof. The Genesis (From nexum, fiducia, stipulatio & talio to Contractual and Delictual Liability). A unique Roman Invention? The Sources. The Contents and the Conditions thereof. Impossibility. No Obligation in favour of the 3rd Party and the later Fate thereof. Dare-Facere-Praestare. Divisibility and Indivisibility. Extinction of obligations. Discharge and similar. Alternative Obligation. Alternative Performance. Death of the parties. Strengthening of Obligations. Collaterals/Securities: Types (Personal vs. Real). Modes of Contracting. Modalities.
UNIT 12: The Law of Obligations: Stipulation
Roman contractual Nominalism. Towards the Freedom of Contract. Stipulation: The Rite. The Advantages thereof. Functions of Stipulation. Stipulation as Collateral. Perfomance of Certain/Uncertain. Actions. Formal and Abstracts Acts Revisited (Abstractiveness vs. Causality. Presumptions).
UNIT 13: The Law of Obligations: The ‘Real’ Contracts.
Real Contracts in General: Ways of Contract Making, the Genesis. Similarities and Differences: mutuum (loan for consumption) vs. depositum (deposit), pignus (pledge) commodatum (loan for use). Degrees of Debtor's Liability. Custodia Introduced. Mutuum and Depositum Irregulare : how ‘Real’ Are They? (Fictitious Transfer).
UNIT 14: The Law of Obligations: The Contract of Sale
Sale in Roman Law and the Romanistic Tradition. Duties of the Parties. Necessary Components of the Transaction: Price and Merchandise. The Problem of Price (the Difference between Sabinians and Proculeians and the Reasons thereof). Adequacy of Price (Fair Price). Price as the Condition of Property Conveyance. Later Developments. Consent as the Basis of the Contract. Risk vs. Duty to Safekeep. Good Faith as the Basis of Liability. Seller’s Liability for Defects. Additional Pacts and the Versality of the Contract.
UNIT 15: The Law of Obligations: The Contract of Hire/Lease
Necessary Components of the Transaction: Rent and Merchandise. Likeness to Sale. Types of Locatio-Conductio. The Management of Risk. Contractual Liability in General (dolus-fraud : culpa-negligence : custodia-safekeeping : vis – ‘force majeure’). Maritime transport, the Function of Receptum nautarum (Warranty of the Capitan).Lex Rhodia de iactu.
UNIT 16: The Law of Obligations: The Contract of Mandate. Liability without a Prior Agreement: Negotiorum gestio (Agency without Commission)
Gratuitous Services in the Roman Word. Liability of the Mandatary (Fraud or Fraud + Gross Negligence?) and of the Mandator. Exceeding the Terms of Mandate. Silent (Implied) Mandate. Mandate for the Sole Benefit of the Mandatary. Mandatum Qualificatum. Death and Mandate.
The notion of Quasi-contracts and their Division. Agency without Commission: The Origins. The Actions. Liability of the Agent without Mandate. The Basis of Master’s Liability: Utility.Other Examples of Liability Similar to the Contractual: Bequests, Co-ownership, Guardianship.
UNIT 17: The Law of Obligations: Undue Payment and Surpassing the numerus clausus of the Roman Contracts
A) The notion of solutio indebiti. Undue Payment and Unjustified Enrichment: the Differences. Condictio and rei vindicatio. Traditioand the Transfer of Ownership: ‘close’ and ‘remote’ cause (causa acquirendi/causa retinendi). condictio ob turpem causam. B) Beyond the numerus clausus of Roman contracts: the role ofstipulatio. Informal pacts and their influence on legal transactions based on strict law and on good faith. exceptio pacti. contractus reales innominati.
UNIT 18–19 The Roman Law of Delict. Iniuria and Damnum Iniuria Datum
The notion of delict. Archaic Law. Delcitual nominalism. 1. Iniuria: Offence/Slander. 2. Damage. Aquilian Plebiscite and its Origins. The Statute and its Defects. Interpretation of Damnum. Directness of Damage. Unlawfulness in the Original Statute: Strict Liability. Exemptions (Defences?) from Liability: Lawfulness, Force-majeure and Necessity, Impossibility to Reason, Contributory Negligence of the Victim, Assuming of Risk. Self-Defence and its Limits. Unlawfulness in Praeclassical and Classical Period (Liability Based on Negligence): Duty of Care in Roman Law?. The Character of the Action. Contractual vs. Delictual Liability. Requisites for the Aquilian and Analogous Action (A Sum-up). Pauperies. Homework x 2
UNIT 20: Elements of Delictual Liability: Beyond Lex Aquilia:
The Traffic Accident Case Solved. Corruption of Slave. Liability for the Damages inflicted by the Others (Edictum against the Ship-Captains, Inn- and Stable-Keepers; Edict on Pouring and Throwing Things). Fraudulent actions against creditors. Deceit and Duress. Liability for Damage Concluded.
Presentation
The Exam: 21st of June 2022: 10 am (written part); ca 2 pm (oral part), room 2.12, Coll. Iuridicum IV
(A Mock Exam May be Downloaded here)
Handbooks/Materials:
F. Schultz, Classical Roman Law, Oxford 1956;
A. Borkowski & P. du Plessis, Textbook on Roman Law, and handouts distributed during classes.
Evaluation
Continuos evaluation of the work at class (15 %). Assignments via MOODLE (15 %). An open-book mock-exam after the 1st semester (20 %). Final open-book exam (written and oral) – 50%.
Erasmus students who are in Warsaw only 5 months may attend only one semester of classes and be examined of this part of the material.
Archive
Formulary Procedure. The Formula and its Parts. Pluris Petitio. Divisions of Actions
(for the Keynote versions of the presentations, please e-mail kuba@adm.uw.edu.pl)