Glossary of Technical Terms

References are to Cases or sections of the Casebook. Definitions for Roman law terms rely heavily on A. Berger, Encyclopedic Dictionary of Roman Law, Transactions of the American Philosophical Society, n.s., 43.2 (Philadelphia, 1953).

action (actio): a “lawsuit” or the claim upon which it is based.

administrate, administratio libera: the “administration” (or “free administration”) of private affairs; more specifically, the right, given by a master to a slave, to adminis­ter the peculium as the slave sees fit (Case 130).

adrogatio (adrogation): the adoption of one sui iuris person by another, with the result that the adopted person's independent familia ceases to exist; see Case 148 for the procedure.

adulterium (adultery): a criminal offense made punishable by, especially, the lex Iulia de adulteriis (see Cases 50-55 and 95-97).

aestimatio: “appraisal,” the money valuation of property This device is widely used in Roman law, notably in dowry (see Case 36).

affectio maritalis (marital affection): treating one's partner as a spouse; this is used as one touchstone in establishing the existence of marriage (see Cases 17-18).

affront: see iniuria.

agnate relationship: kinship traced solely through males (see Case 3); the relationship between persons who are subject to the same paterfamilias, or who would be if all their ancestors in the male line survived. The proximus agnatus (nearest agnate) is the closest relative among the agnati.

alienation of property (alienatio): the transfer of the ownership of property through or as a result of a transaction such as a sale or a gift. This generalized term is useful when legal discussion centers on the transfer itself rather than on the reasons for a particular transfer.

alieni iuris: subject to another's legal power. This term describes all free persons who are within the power of a paterfamilias. (The term itself, however, is not technical and was not used by the Romans; it was formed by analogy with sui iuris.) See Case 5. annus utilis:lang=EN-US style='font-size:7.5pt;line-height:112%'> an “effective year” in which a party can sue after the occurrence of an event; in essence, a statute of limitation on lawsuits. See Case 133 for an example.

benefit, father's benefit: see “actio de in rem verso,” under “action.”

betrothal (sponsalia): engagement to marry or the process whereby a couple become engaged (see Chapter II.B.1).

bonitary owner (Case 115): a person who holds legally effective title to property but, usually because of some technical flaw in its transfer from someone else, is not the actual owner. The bonitary owner will normally acquire full title in time, through usucapion.

bonorum possessio: in the law of succession, the possession of an estate that is granted by the praetor to someone whose claim to the estate the praetor recognizes; see espe­cially Case 166. Depending on the circumstances, the praetor can enforce a will by granting possession in accordance with its terms (secundum tabulas), he can upset the will by granting possession to someone not entitled under the will (contra tabu­las), or he can grant possession when there is no will (sine tabulis). The praetorian possessor, though not an actual heir, is treated as an effective heir.

burdens of marriage (onera matrimonii): expenses connected with the common life of a married couple. They are usually borne by the husband or his pater familias (see Case 35).

coemptio: “sale.” Usually, reference is to a symbolic sale, as in the archaic ritual by which a woman is “purchased” as a wife (see Case 19). In classical law, a fictitious sale (co­emptio fiduciaria) could be used to help a woman escape the control of her tutor (see Cases 227-228).

cognate relationship: blood kinship, contrasted with agnate relationship (see Case 3). The praetor gave rights to cognates (cognati) in succession to their blood relatives (see Cases 164-165 and 192).

cognitio (extra ordinem): literally, “extraordinary examination.” This is an imperial form of judicial procedure that was originally thought of as “extraordinary” because it did not involve the praetor's court but instead relied directly on the emperor's au­thority and was administered by judges subject to him; it was also generally much more modern in its form.

collatio: a “contribution.” Case 186 mentions one instance: an emancipated child whom the praetor entitles to a share in a father's estate must first combine his own inde­pendent estate with the father's, in order to avoid unfairness to other heirs.

commodatum: loan-for-use, the gratuitous loan of property that the borrower is to use and then return in accordance with the agreed terms.

concubine (concubina): a woman who lives in a permanent, monogamous union with a man to whom she is not legally married. Concubinage has few legal consequences. See Case 18.

condictio: a form of action in Roman law by which a plaintiff claims something from the defendant. Although the condictio had a generalized form, the jurists note many specific types. Two examples are the condictio indebiti, an action for the recovery of a payment that is erroneous because no debt actually exists; and the condictio furtiva, an action for recovery of stolen property or its value.

consilium: an advisory group, used by magistrates and private citizens. Although a pater familias was not legally obliged to use a consilium, this was customary (see Cases 90-91).

constitutio: a general term that embraces all types of enactments by an emperor. The con­stitutio Antoniniana is a decree of the Emperor Caracalla (A.D.

contract (contractus): a promissory agreement that creates liability if a promise is not fulfilled. Contracts based on good faith (bonafides), referred to in Case 136, require that both sides exercise fairness in performing their duties; most informal Roman contracts are in this category. A stipulation (stipulatio), by contrast, is a formal oral contract consisting of a question (“Do you promise to pay me 100?”) and an answer (“I promise”); this promise is valid because of its form and, in principle, strictly en­forced (see Case 117).

conubium: the legal capacity of a man and a woman to conclude a valid marriage (see Case 9).

culpa: “fault,” particularly nondeliberate carelessness (by contrast with dolus, intentional infliction of harm). Culpa is used in a wide variety of contexts in Roman law, but it often refers to the legal duty of one individual to exercise reasonable care in pro­tecting someone else or that person's property Examples are a husband's duty with respect to dowry property (Case 70) and the duty of a tutor with respect to a ward's property (Case 218). Some texts speak of particular types of culpa, although it is sometimes disputed whether these texts are classical; an example is culpa lata (“wide” culpa, or gross negligence), in Cases 218-219.

cura: the “care” of a ward, a form of guardianship exercised by a curator. Roman law knows several types of cura for young adults, lunatics, and prodigals; see Chapter VA.2-3.

damnum iniuria datum: “loss wrongfully inflicted,” which gives rise to an action under the lex Aquilia of the third century B.C.

daughter-in-power (filiafamilias):size=1> a daughter who is under the paternal power of her father or of a paternal ascendant.

decemvirs (decemviri): members of a Board of Ten. Case 145 refers to the decemvirs who were commissioned in 451 B.C. to create the important archaic law code called the Twelve Tables.

deductio: the solemn introduction of a bride into her husband's house, usually accompa­nied by religious ceremonies; it is often treated as marking the beginning of mar­riage. See Case 20.

deposit (depositum): a contract whereby one person gives property into the physical control of another, who assumes the duty to watch over it without being paid.

diligentia: carefulness, a legal duty to exercise cautious conduct when another's interest is involved. A husband is required to exercise diligentia toward dowry property (see Case 70).

dolus or dolus malus: the “intent” to inflict loss or hurt on another person. Some actions require that a defendant have exhibited dolus; but more usually (as in Cases 70 and 218), dolus is used with culpa to indicate a more general liability for both inten­tional and unintentional fault.

dowry (dos): property given to a bridegroom by the bride or by someone else (usually her father) on her behalf, as part of the marriage process. During the marriage, the husband exercised effective control of the dowry, but he (or his heirs) might be obliged to return all or part of the dowry when the marriage ended. See especially Chapter II.B.2, C.5, D.2. A will could also leave a dowry in the form of a legacy (Cases 199-200). The rules for returning dowries vary somewhat depending on its source. A dos profecticia is a dowry given by a woman's paternal ascendant (usually her paterfamilias); a dos adventicia comes from any other source, including from the woman if she was sui iuris. See Cases 30 and 81-82.

Edict (edictum): the proclamation of the urban praetor at the beginning of his year in of­fice in which he specified the forms of action that he accepted. The praetor's Edict contained numerous special edicts on particular causes of action. The jurists often organize their legal writings as commentaries on the Edict. During the early Em­pire, the contents of the Edict gradually became fixed, and a final “permanent” ver­sion (the Edictum Perpetuum) was issued under the Emperor Hadrian (reign: A.D. 117-138). The “Provincial Edict” was issued by governors in Roman provinces. emancipation (emancipatio): the voluntary release of a son or daughter from the power of a paterfamilias. See especially Chapter III.C.3.

equestrian: a high social standing, held by equites (roughly, “knights”). In the Empire, equestrians ranked just below those of senatorial status. Many of the later classical jurists were equestrians.

exceptiolang=EN-US style='font-size:7.5pt;line-height:115%;font-weight: bold;font-style:italic'>: a defense that the defendant opposes to the plaintiff's claim. If the defense is proven, the plaintiff's claim is ineffective. See Case 234 for an example of a defense based upon a statute.

extra ordinem: see “cognitio.”

familia: the “household,” including especially the free persons who are subject to the power of a pater familias. This is one of the fundamental concepts in Roman family law (see Case 4). The concept also extends to the household property. The “pur­chaser of the estate” (familiae emptor) is the person who fictitiously buys the estate in the ordinary form of Roman will (Case 171).

favor matrimonii: a legal policy that favors marriage in situations of legal uncertainty; for examples, see Cases 99, 102.

fideicommissum: a form of bequest in which the testator asks an heir or legatee to carry out a performance (such as a payment of money) that benefits a third party; a trust. See Chapter IVC.2.

filiae loco: “as a daughter” or “in the position of a daughter.” In the archaic manus mar­riage, the wife is treated as her husband's daughter for some purposes (see Case 36).

filius orfiliafamilias: see “son-in-power” and “daughter-in-power.”

formula: a written document by which, in a civil trial, the praetor appoints a iudex (judge) and authorizes him to condemn the defendant if certain factual or legal cir­cumstances are proven or to absolve the defendant if this is not the case. The for­mula is settled upon during the initial portion of a trial (in iure), and it defines the basic issues, including especially the plaintiff's cause of action, that the parties will argue about in the second portion of the trial (apud iudicem). “Formulary proce­dure” was the normal method of bringing private lawsuits during the classical pe­riod of Roman law.

fraud (fraus or dolus): any act or transaction accomplished with the intent to swindle another or to deprive him of a legitimate advantage (see Case 220).

freedman (libertus), freedwoman (liberta): a person who has been manumitted from slavery.

fruits (fructuslang=EN-US style='font-size:7.5pt;line-height:115%;font-weight: bold;font-style:italic'>): the products or proceeds deriving from property The term refers mainly to the natural produce of fields and gardens, the offspring of animals, and the output of mines, but also to profits obtained through legal transactions (such as rent from a lease).

furiosus (lunatic): an insane person, who by legal definition lacks the will to perform valid legal acts. Lunatics were often in the charge of a curator (see Case 223).

furtum: “theft,” the unauthorized appropriation of another person's property On theft of children, see Case 108.

gentiles: persons belonging to the same gens (clan) and sharing the same family name. gift (donatio): an act of generosity in which a donor hands over something to a donee, without clearly expecting anything in return. In classical law, husbands and wives were restricted in their ability to make gifts to one another (Cases 61-65). One im­portant form of gift is that made “in contemplation of death” (mortis causa), where the donor acts on the assumption that he will die in the immediate future; this gift resembles a legacy and does not become fully effective until the donor actually dies (see Chapter IVC.3).

good-faith contract: see “contract.” guardian: see “tutor.” heres: the “heir,” the person who enters into the rights and the place of the deceased. See also “sui heredes.”

impubes (plural: impuberes): a person below the age of puberty; one who has not yet at­tained legal majority (see Case 6). Minors who were sui iuris had restricted legal rights and were usually subject to the guardianship of a tutor (see Chapter 5.A.1). infamia: evil reputation or disgrace, usually as a result of having committed some act deemed publicly offensive. Infamia carries with it not only loss of public esteem but also some legal disabilities.

infirmitas sexus: the weakness of an individual because of his or her sex. In the case of women, this weakness is used to explain certain legal disabilities, including guardianship (see Case 225).

iniuria: a deliberate “affront” to another's personal dignity, giving rise to an action for damages. More generally, “lack of right” or “wrongfulness.”

interdict (interdictum): an administrative order issued by the praetor at the request of a claimant and addressed to a third party, who is required to do or not to do some­thing. The interdict de liberis ducendis (on leading away children) allowed a pater fa­milias to reestablish physical control over his children (see Cases 49, 107-111). iudex: lang=EN-US style='font-size:7.5pt;line-height:115%'>a “judge” in a private trial (iudicium), appointed by the praetor to listen to the par­ties to a specific lawsuit and then to decide the case on the basis of the formula. ius: “law” or “a right,” depending on the context. The ius civile is the “civil law,” the pri­vate law peculiar to the Roman people, especially those parts of the law that are not of praetorian origin (the ius honorarium); but the term ius civile is also used to des­ignate private law in general.

ius liberorum: a set of privileges enjoyed by parents of several children; these privileges were first introduced by the Augustan marriage legislation.

ius occidendi: the right of a paterfamilias to kill free persons who are subject to his power (see Chapter III.A.1).

ius respondendi: the right to give authoritative legal responses. Although the nature of this right is debated, it was probably a privilege that emperors from Augustus on granted to certain jurists in recognition of their skill in interpreting the law; these jurists then had the emperor's official backing for their decisions.

iussum: an “order,” including especially an order or authorization given by a pater famil­ias to his son or slave to conclude a transaction or commit an act (see Case 121). jurist (iuris consultus, peritus): an expert in private law

law of persons (ius personarum): the body of private law pertaining to personal status. This area of law, defined in Case 1, embraces all institutions that have an influence on the legal condition of a person and his or her capacity to have rights and assume obligations.

legacy (legatum): a bequest made by a testator to third party and paid by the heir (see Chapter IVC.1). Legacies are commonly of money or of property, including dowries (Cases 199-200); they may also order release from a debt owed by a third party (legatum liberationis, Case 205). Legacies come in many different forms. Among those discussed in this book are the legacy per praeceptionem (preferential legacy), ordering an heir to take specified property as part of his or her share in the estate; and the praelegatum (advance legacy), ordering a legatee to take a legacy be­fore the estate is divided up among the heirs. On both these forms, see Case 204. legitimi: a class of praetorian heirs who inherit under the ius civile (Case 161).

lex (plural: leges): a “statute” passed by an assembly of the Roman people. Statutes play a large role in Roman family law. The most important for this book are the marriage laws of Augustus: the lex Iulia de maritandis ordinibus of 18 B.C., the lex Iulia de adul­teriis coercendis of 18 or 17 B.C., and the lex Papia Poppaea of A.D. 9. The first and third of these statutes, commonly treated together by the jurists as the lex Iulia et Papia, established incentives to marriage and childbirth (Cases 10, 12); the adul­tery law protected marriage (Cases 50-55, 95-97). Among the other statutes men­tioned in this book are the lex Aelia Sentia of A.D. 4, which restricted the right to manumit slaves (Cases 212, 216); the lex Aquilia of 287 B.C., which granted redress against the wrongful infliction of harm to property (Case 139); the lex Atinia, which forbade usucapion of stolen property (Case 215); the lex Cornelia de veneficis et sicariis, the fundamental murder statute of 81 or 80 B.C. (Cases 52 and 96); the lex Falcidia of 40 B.C., which established that legacies could not exceed three-quarters of a testator's estate (Cases 198, 202); the lex Glitia, of unknown date, which dealt with undutiful wills (Case 194); the lex Laetoria of 192/191 B.C., which protected minors aged less than twenty-five (Case 221); lex Minicia of ca. 90 B.C., whereby a child whose parents had different citizenship status received the lower status (Case 9); and the lex Pompeia deparricidiis of 55 or 52 B.C., which repressed homicide of family members (Case 92). In the Roman Empire, leges were gradually superseded by senatusconsulta (decrees of the Senate) and imperial enactments (constitutiones), both of which acquired the effect of statutes.

libera administratio: see “administratio.”

liberi: children or, more generally, descendants. This is a preferred class of heirs under the praetorian rules for intestate succession (Case 161).

litis contestatio: joinder of issue; the point at which the first phase of a Roman civil trial ends with the establishment of a formula appointing a iudex who is ordered to de­cide the case.

mancipatio: “mancipation,” a solemn ceremony that was originally used to convey own­ership of property from one person to another. This ceremony was subsequently (but at a very early date) adapted to many other purposes. For instance, it could be used to create a manus marriage (through coemptio, see Case 19; obsolete in classi­cal times), to adopt a child in someone else’s power (Case 149), to emancipate a child in one’s own power (Case 155), or to create a valid will (Case 171).

mancipium: roughly, “charge.” This word is used in numerous ways in Roman law, but important to family law is mancipium describing the legal status of a free person who has been conveyed by mancipatio to another, especially in an adoption or emancipation or in a noxal surrender. See Case 114.

manumission (manumissio): the release of a slave from the power of his or her master. manus: literally, “hand,” but the word usually means “control.” In Roman law, manus is most commonly used to describe a husband’s power over his wife in an archaic manus marriage (see Chapter II.C.1).

materfamilias: “mother of the household,” usually a wife (uxor) (see Case 143). matrimonium: see “nuptiae.” mortis causa:lang=EN-US style='font-size:7.5pt;line-height:107%'> “in contemplation of death”; see “gift.”

necessarius: a “necessary” or “compulsory” heir. If a son or daughter under a father’s power (but not a grandchild) was named an heir in the father’s will or succeeded upon intestacy, this person was a heres suus et necessarius; he or she had no power to refuse the inheritance, though the praetor often granted an exception. Case 175 refers to another type of heres necessarius, in which a slave is manumitted and insti­tuted as an heir in his master’s will.

neglegentia: “carelessness,” usually synonymous with “fault” (culpa). In Case 218, negle­gentia lata means “gross carelessness.”

noxaededitio: noxal liability A form of liability in which a paterfamilias or master is held responsible for the acts of a son-in-power or a slave but can escape this liability by surrendering the son or slave to the plaintiff. The plaintiff acquires ownership of the slave, but the son is held in a status called mancipium until the debt is worked off, after which he returns to his father’s power (Cases 139-140).

nuptiae or matrimonium: “marriage,” or the marriage ceremony Nuptiae iustae (or matri­monium iustum) refers to a marriage that is valid in Roman law.

obligatio: “obligation,” a duty to pay or act that derives, in most instances, either from a contract or a delict (a civil wrong). An obligatio naturalis (natural obligation) is an obligation that cannot be enforced by an action but that is irreversible if carried out (see Case 118).

onera matrimonii: see “burdens of marriage.”

oratio principis: the speech of the emperor in the Senate in which he proposes a senatus­consultum. Although the text of the Senate’s decree became law, by the second cen­tury A.D. the jurists recognize the real source of the legislation by citing the oratio as decisive.

parricidium: the murder of one's pater familias or, later, other close relatives.

pater familias: the “head of a household,” irrespective of whether he is married or has children; a sui iuris person not under the power of another. The pater familias was the head of his family; his power lasted, in principle, as long as he lived, without re­gard to the age or official position of the persons under his paternal power (patria potestas). He alone had the ultimate right to dispose of family property

patria potestas: “paternal power,” the power of a paterfamilias over the members of his household, including his natural and adopted children but also his wife and the wives of his sons-in-power (in an archaic manus marriage).

pietas: “respect,” the moral and legal duty that one owes, especially, to near relatives. peregrinus: a foreigner, a non-Roman citizen. The term usually refers to the many aliens residing within the Roman Empire, until Caracalla's extension of the citizenship in A.D. 212 virtually eliminated the category Peregrines did not enjoy the political rights of Romans and Roman private law often did not apply to them. A peregrine could not contract a valid Roman marriage (unless possessed of conubium, Case 9), could neither make nor witness a valid Roman will, and could not be instituted heir or receive a legacy under one, except in a soldier's testament.

postliminium: the recovery of civil rights that are held in suspension during a person's exile or capture by enemies, upon that person's return (see Cases 102-103).

postumus: a “posthumous child” born after the death of a testator or after his will is made (see Cases 182-185).

potestas: “power.” In Roman family law, this term usually refers to the power of a pater familias over his offspring (patria potestas). One aspect of power is the power of life and death (vitae necisquepotestas) (see Chapter III.A.1).

praelegatum: see “legacy”

praetor: an annually elected Roman magistrate, ranking below the consul among the traditional magistrates. The urban praetor presided at the first stage of private law­suits between Roman citizens. His Edict listed the causes of action that he accepted; the praetor used the Edict to enforce existing law and create new causes of action. procurator: a person who administers another's affairs with his authorization; a sort of general manager. The scope of a procurator's action is set by the authorization. For instance, a procurator ad litem is appointed by a litigant to represent his or her in­terests during a lawsuit (see Case 229).

prodigus: a “prodigal,” a spendthrift or wastrel. Roman law permits appointment of a cu­rator to manage the affairs of a prodigus (see Chapter VA.3).

proximus agnatus: see “agnate relationship.”

pupillus, pupilla: “ward,” a child below the age of majority who is not under the power of a pater familias and so is under the guardianship of a tutor (see Chapter VA.1).

color=black face="Book Antiqua">querella inofficiosi testamenti: the “complaint that a will is undutiful” because a person who would be a legitimate heir upon intestacy has been either omitted from a will or unjustly disinherited (see Chapter IVB.4).

repudiation (repudium): the unilateral dissolution of a betrothal or a marriage by one of the parties.

res: “property,” applied to both corporeal and incorporeal things. Roman property law is complex, but one of its most fundamental categories, inherited from archaic law, is res mancipi, things the ownership of which is passed by mancipation or by other formal ceremony (see Cases 171, 226).

rescript (rescriptum): the written answer of the emperor to queries from officials or pri­vate individuals, expressing the emperor's authoritative opinion on a legal ques­tion. By the mid-second century A.D., this had become a major means for emper­ors to introduce new rules.

restitutio in integrum: “reinstatement into a former legal position.” This was an extraor­dinary remedy used by the praetor to assist a person who had suffered an in­equitable loss, especially because of that person's age (Cases 220, 222).

senatusconsultum: a decree of the Senate, which in the early Empire took on statutory force. Many of these decrees are important for family law; among them are the SC Macedonianum on cash loans to sons-in-power (Cases 119, 132, 138, 234), SC Or- phitianum on the inheritance from women by their children (Cases 147, 169-170), SC Plancianum on a woman's pregnancy after divorce (Cases 47 and 144), SC Silanianum on the assassination of a master by slaves (Case 56), SC Ter­tullianum on the inheritance from children by their mother (Cases 168-170), and the SC Vellaeanum forbidding women to assume liability for others (Cases 233-234). See also “oratio principis.”

senator: a member of the Roman Senate. Roman senators and their immediate families hold the rank of clarissimi, “most eminent persons.”

son-in-power (filius familias): a son (or, more generally, any descendant in the male line) who is in the power of a pater familias.

spado: a “eunuch” (see Case 8).

sponsalia: see “betrothal.” stipulation (stipulatio): see “contract.” stuprum: sexual “depravity,” an illicit sexual act; especially, sex with a woman who was respectable but not married. See also “adulterium.”

substitution (size=1>substitutio): in a will, the appointment of another heir in the event that the heir who was first instituted does not take the inheritance. A particular form is pupillary substitution, the appointment of a substitute by the father for his child (a minor, pupillus) who was instituted as heir in the father's will (see Cases 172-173). succession: the body of law governing the process whereby an heir takes the place of a deceased person.

sui heredes: the “privileged heirs,” those who become sui iuris upon the death of a pater familias. They hold a privileged position in the law of succession (see Cases 159 and 177).

sui iuris: “in one's own legal power,” that is, legally independent, not under a pater fa­milias (see Case 5).

testamentum: “will.” The formal act whereby a testator institutes one or more heirs to succeed to his estate after his death. A testamentum inofficiosum is an “undutiful will,” which fails to take adequate account of near family members; see “querella in­officiosi testamenti.”

trust: see “fideicommissum.”

tutor: a “guardian,” a person appointed to look after another person, who is in a legal state of tutela (guardianship). Roman law knows two basic types: the tutor for a sui iuris child below the age of majority (Chapter VA.1) and the tutor for adult sui iuris women (Chapter VB.1).

Twelve Tables (Duodecim Tabulae): the earliest Roman collection of the fundamental rules of Roman customary law, published in 449 B.C. on twelve “tables” (probably wooden boards). This codification had major influence on the subsequent devel­opment of Roman law.

unde liberi, unde legitimi, unde cognati, unde vir et uxor: classes of heirs under the prae­torian rules for intestate succession (“children, statutory heirs, cognate relatives, husband and wife”; see Cases 161-167).

usucapion (usucapio): acquisition of ownership of property belonging to another through possession of the property for a prescribed period of time.

usufruct (ususfructus): the right to use another's property and to take produce from it without impairing its substance.

uxor: “wife”; see “vir et uxor.”

vicariuslang=EN-US style='font-size:7.5pt;line-height:112%;font-weight: bold;font-style:italic'>: a slave who is within the peculium of another slave and who often exercises a pe­culium of his own (see Case 126).

vir et uxor: “man and wife.” This is also a class of heirs under the praetorian rules for in­testate succession (see Case 167).

vitae necisquepotestas: see “potestas.”