Translator's Glossary of Latin Terms and Phrases

Latin terms and phrases used in this casebook have normally been translated wherever first encountered. If re-used, however, the same terms are not always re-translated.

Accessio cedit principali. “[The] accession yields to [the] principal”—i.e., where two pieces of property are combined into one, the combined property retains the iden­tity of the more important component while the identity of the accessory element is extinguished.

Accipiendum est; acceptum est. “It must be accepted”; “it has been accepted.”

Actio. “Action”; “lawsuit.”

Actio ad exhibendum. “Action to compel production [of property]”; an in personam action to compel the defendant to produce in court property of contested owner­ship that is in his possession.

Actio communi dividundo. “Action for dividing common property”—i.e., an in rem partition action for property that is co-owned.

Actio contraria pigneraticia (or actio pigneraticia contraria).

Actio de dolo. “Action concerning deceit.” An in personam action seeking damages for fraudulent conduct by the defendant. Also called actio doli.

Actio de tigno iuncto. “Action concerning the joining of timber”; an in personam action for recovery of twice the value of building materials that have been fraudulently appropriated into another’s structure.

Actio furti. “Action for theft”; an in personam private law action, somewhat comparable to the common law tort of conversion, although carrying a penalty of twice (or even four times, if “manifest”) the value of the stolen property.

Actio hypothecaria. “Action on a hypothec”; an in rem action by a creditor for pos­session of property secured by hypothec and currently in the possession of the debtor. Cf. actio Serviana.

Actio in factum. “Action [based] on what was done”; an in personam action based on facts that, if proven, would give rise to recovery, as opposed to an action based on a statutory definition. See fn. under Case 9.

Actio in personam. “Action against a person”; an action for money damages or specific performance based on an obligation incurred by the defendant. Also called an actio personalis. Cf. actio in rem.

Actio in rem.

Actio negatoria. “Action to deny”; an in rem action for a judicial declaration denying the defendant’s interest in a servitude (including the personal servitudes of use and usufruct).

style='font-size:8.0pt; line-height:120%;font-weight:bold'>Actio pigneraticia. “Action on a pledge”; an in rem or in personam action brought by a debtor for recovery of possession of secured property held by a creditor, or for damage or loss of the property due to the fault of the creditor. Cf. actio contraria pigneraticia.

Actio pigneraticia utilis. “Policy action on the pledge”; see actio utilis.

Actio Publiciana. “Publician Action”; an action that was first granted by the Praetor Publicius and retained his name thereafter. It was an action in rem for recovery of property by a dispossessed plaintiff who would have usucapted the property but for the dispossession. It was analogous to a vindicatio, except that the plaintiff was not yet technically the legal (as opposed to bonitary) owner of the property in dispute.

Actio Serviana. “Servian action”; an in rem action originally based on a lessor’s security interest that had been created by a lessee’s tacit pledge of movables that had been and would be brought onto the leased premises. The same action was later made available to any secured creditor with respect to hypothecated property. Cf. the actio hypothecaria.

Actio utilis.

Actori incumbit probatio. “The [burden of] proof rests with the Plaintiff.”

Actus. “Driving” or “right of driving” [animals or vehicles over the land of another]; one of the right of use that might be included within a servitude. The word actus also means simply an “act.”

Adsessor. “Legal advisor” (or one of a panel of legal advisors) who assists a judicial magistrate in the conduct of trials and other legal process.

Aequitas; aequum esse. “Fairness; to be fair.”

Animo enim coepit possidere. “For s/he has begun to possess with intent.”

Animo nostro corpore alieno. “With our intent [but] another’s body.”

Animus possidendi. lang=EN-US style='font-size:8.5pt;line-height:125%'>“Intention of possessing.”

Animus/animo. “Intent/with intent.”

Apiscimur possessionem corpore et animo, neque per se animo aut per se corpore. “We acquire possession with body and intent, not with intent by itself or with body by itself.”

Aquae ductus.

Argumentum ad absurdum. “Argument [that leads] to absurdity.”

Auctor. “Approver, person who authorizes.”

Auctoritas tutoris. “Authorization given by the guardian.”

Benignitas. “Good will, benevolence”; an equitable factor that can be taken into account in judicial decisionmaking, where strict application of the law is deemed to be too harsh.

Bona fide serviens. [Mistakenly] “serving as a slave” to someone who believes “in good faith” that the person serving is a slave.

Bona fides. “Good faith.”

Bona inducta et illata... invecta. “Goods led in and brought in... carried in”; typi­cally referring to the movable property of a lessee. When brought onto the leased premises, such property becomes security for the lessee's rental payments to the lessor.

Bona; in bonis. “Goods/property”; “among [one's] goods”. The phrase in bonis is used to refer to “bonitary ownership” as opposed to in dominio, which means in civil law ownership. Bonitary ownership is technically defective until it ripens into civil law ownership by usucapion.

Bonus vir; bonus iudex; bonus pater familias. “Good man”; “good judge”; “good head of the family”; refers to an objective behavioral standard associated with such individuals.

Casum sentit dominus.

Causa. “Cause, case, reason, legal basis.”

Causa detentionis. “Cause/reason for holding [property].”

Causa possessionis. “Cause of possession”; legal grounds for possession.

Causa traditionis. “Cause of delivery”; legal grounds for delivery.

Cautio damni infecti. An enforceable guarantee that no damage will be caused.

Certum est. “It is certain.”

Clam; clam factum. “Secretly”, “secretly done.”

color=black face="Book Antiqua">Clausula arbitraria. “Clause pertaining to a factual issue requiring determination”; part of a trial formula that refers to a contingent issue of fact that may need to be resolved.

Colonus. “Tenant farmer.”

Commodatum. A gratuitous loan of movable property that transfers neither possession nor ownership.

Condictio. An in personam action for damages or specific performance. Cf. actio in personam.

Confusio. “Intermingling”; as used in property law it refers to the combination of like movables belonging to two different owners into an undifferentiated whole that is owned by both.

Consilium; consilia. “Advice or council; advisory councils.” Constat. “It is established that, there is agreement that...” Constitutum possessorium. “Possessory agreement.”

Corpore et animo. Lit. “with body and with mind”; physically and with intent.

Corpus; corpore. “body, with body”; physical form/physically.

Corpus Juris Civilis. “Body of Civil Law”; the post-antique label that refers collectively to the Justinianic legislation comprised of the Institutes, Digest, Codex, and Novels.

Crimen stellionatus. “Crime of cheating/fraud/deception.” Cf. the private actio de dolo.

Culpa. “Fault.”

Curator. Person charged with administering the affairs of a minor over the age of puberty or of someone otherwise deemed to be legally incompetent. The term is also used more generally in various non-legal contexts.

Custodia. “Custody, safekeeping”; sphere of control.

Depositum. “Deposit” of property with someone other than the owner; the contract regulating such a deposit. Depositum is similar to common law “bailment.”

Detentor. “Holder” of property. Someone who has physical control but not legal posses­sion of the property. Also called a naturalis possessor.

Dolus/dolus malus. “Fraud, deceit.”

Dominium. “Ownership.”

Dominus. “Owner.”

Eo iure utimur. “We use this rule”; referring to a well established rule of law.

Error facti. “Error of fact.”

Error iuris. “Error of law.”

Exceptio (pl. exceptiones). Lit. an “exception” to a rule that is otherwise applica- ble—the portion of a formula that recognizes applicable elements of an affirmative defense; the affirmative defense itself.

Exceptio doli. Affirmative defense based on fraudulent conduct of the Plaintiff.

Exceptio (iusti) dominii. “Affirmative defense of (legitimate) ownership.”

Exceptio in factum. Affirmative defense based on the conduct of the Plaintiff under the facts assumed.

Exceptio rei iudicatae vel in iudicium deductae. Affirmative defense of res judicata or lis pendens.

Exceptio rei venditae et traditae. “Affirmative defense that the property was sold and delivered.”

Exceptio vitiosae possessionis. “Affirmative defense of defective possession.” Familia. “Family,” including slaves.

Favor negotii. A judicial policy that is sensitive to the interests of commercial activity. Fictus possessor. “Fictive possessor.”

Filius. “Son.”

Fraus. “Fraud.”

Fructus percepti. “Fruits” that have been “separated, gathered.”

Fructus percipiendi. “Gathering” (or separation) of fruits.”

Fundus. “Farm, farmstead.”

Furiosus. “Insane person.”

Homo liber bona fide serviens. “Free man [mistakenly] serving as a slave” to someone who believes “in good faith” that the person serving is a slave.

Hyperocha. Surplus from sale of secured property after the debt has been satisfied from the sale proceeds. Also called superfl uum.

Hypotheca. “Hypothec”; a security interest in property that is to remain in the posses­sion of the debtor. Cf. pignus.

Implantatio. “Planting.”

Impubes. “A youth [between the ages of 7 and 14].” See chart at Case 86.

Inducta et illata. See bona inducta et illata.

In bonis. See bona.

In conspectu. “In view.”

In factum. See actio in factum.

In iure cessio. “Surrender in law”; a formal procedure by which transfer of ownership to property, or other change of legal condition, was effected in the court of a com­petent magistrate.

In maiore minus inest. “The lesser is included in the greater.”

In personam. See actio in personam.

In potestate. “In [the] power [of another].” See potestas.

In rem. See actio in rem.

Infans. Lit. “infant”; a minor below the age of 7. See chart at case 86.

Intellegi. “To be understood as...”

Intentio. “Charge.” The portion of a formula that summarizes the factual issue underly­ing the cause of action.

Interdictum. A standardized judicial order issued by a competent magistrate in response to a petitioner’s request. Interdicts forbid or require the performance of some action by the party so ordered.

Interdictum de migrando. “Interdict concerning a change of abode”; a judicial order requiring a landlord to return possession of movables that have been distrained under the pretext of non-payment of rent.

Interdictum de vi armata. “Interdict concerning armed force”; a judicial order granting re-possession of immovable property from which the petitioner has been ousted by armed force. Cf. interdictum unde vi.

Interdictum quod vi aut clam. “Interdict [of the form] ‘what by force or stealth’”; a judicial order compelling restitution for some invasion of the petitioner’s interest in immovable property.

Interdictum unde vi. “Interdict [of the form] ‘whence by force’”—a judicial order compelling the restoration of possession of immovable property from which the petitioner has been ousted by force. Cf. interdictum de vi armata.

Interdictum uti possidetis. “Interdict [of the form] ‘since you possess’”—a judicial order forbidding the use of force to dispossess the party who is deemed to be the last fault-free possessor.

Interdictum utrubi. “Interdict [of the form] ‘with whichever of the two parties’”; a judi­cial order protecting the possession of movable property by whichever of the two litigants held it for the longer period within the previous 12 months.

Invecta et illata. See bona inducta et illata.

Iter. Lit. “way, path”; an easement appurtenant to a dominant tenement, consisting of the right to walk or ride across a portion of the servient tenement. The easement did not include the right of other uses, such as driving animals across the servient tenement. Cf. via.

Iudex. Lit. “judge”; in private law, typically referring to an individual selected by the parties and appointed by a magistrate to try the facts of a case.

Ius civile. “Civil law”; commonly used to refer collectively to Roman civil law arising from sources other than the edicts of magistrates. The ius civile consists primarily of substantive private law. Cf. ius honorarium.

Ius gentium. “Law of nations/peoples”; a notional term referring to rules or doctrines that are presumptively recognized by all peoples' legal systems.

Ius honorarium. “Honorary law”; refers generically to the primarily procedural law developed by competent magistrates (the magistracies being collectively called “honors”) and promulgated through their edicts. The most important source of honorary law was the edict of the magistrate called the “Urban Praetor,” which itself is called ius praetorianum.

Ius offerendi (et succedendi). “Right of offering (and succeeding to)”; the right of (typically) a junior secured creditor to pay off a senior creditor secured by the same property and thereby promote the junior creditor's security interest.

Ius respondendi. “Right of giving [legal] responses”; a license granted by an emperor to issue presumptively authoritative opinions on issues of law.

Ius tollendi. “Right of removal”; typically in reference to building materials.

Ius vendendi. “Right of sale.”

Ius. “Right, law.”

Ius commune. Lit. “common law”; the continental European tradition of Roman-based civil law; not to be confused with the English “common law.”

Iusta causa. “Just cause”; legitimate reason.

Iusta possessio. “Legitimate/valid possession.”

Leges. “Statutes.”

Lex Atinia. “Atinian Statute”; a statute that was promulgated by a certain Atinius and retained his name in the title. The statute established that stolen property could not be usucapted unless it had first returned to the control of the owner.

style='font-size:8.0pt; line-height:125%;font-weight:bold'>Litis aestimatio. A judicial determination of the money value of contested property.

Litis contestatio. “Joinder of issue.”

Longa manu. See traditio longa manu.

Mala fides; mala fide. “Bad faith, with bad faith.”

Mancipatio. “Mancipation”; a formalized procedure that transfers ownership of res mancipi.

Mancipium. An archaic form of ownership that applied to certain kinds of property. See res mancipi.

Mandatum. Lit. “mandate”; a gratuitous contract of agency obliging the agent (“manda­tary”) to perform a specified task for his principal (“mandator”).

Mandatarius. “Mandatary”; a kind of agent. See mandatum.

Materia. “Material”; typically in reference to building materials.

Media sententia. “Middle opinion.”

Melius est. “It is better.”

Minor. Lit. “minor”; a person between the ages of 14 and 25. See Case 86.

Mutuum, mutua. “Loan, loans” of money or other fungible property. Mutuum transfers ownership of the property to the recipient. Cf. commodatum.

Naturalis possessio. “Natural possession”; actual holding, detention. Also called detentio.

Naturalis possessor. “Natural possessor”; holder, detentor.

Ne bis in idem. “Not twice on the same matter.”

Nemo plus iuris transferre potest quam ipse habet. “No one can transfer more right than he himself has.”

Nemo sibi ipse causam possessionis mutare potest. “No one can [unilaterally] change to his own benefit the legal basis of his possession.”

Occupatio. “Occupation”; taking possession and ownership of ownerless property.

Oculis et affectu. “With [one's] eyes and expression.”

Opus in solo factum. “Work done on the soil/ground.”

size=1 color=black face="Book Antiqua">Pactum de distrahendo. “Agreement about withdrawal/sale [of the security].”

Pater familias. “Father of the family”; legal head of the household.

Peculium. A sum of money or other property that is granted to a son-in-power or to a slave for the recipient's more-or-less discretionary use and management, though with the notional purpose of benefiting the father or master. Although technically still owned by the latter, peculium constitutes a separate property and is subject to different legal treatment.

Per extraneam personam nobis adquiri non posse. “[Possession] cannot be acquired through another person.”

Periculum est emptoris. “The buyer has the risk [of loss].”

Periculum. “Risk [of loss].”

Persona. “Person.”

Pignoris causa indivisa est. “The security interest is indivisible.”

Pignus. “Pledge”; a security interest in property that is to be placed in the possession of the creditor; the pledged property itself. Cf. hypotheca.

Pignus tacitum. “Silent pledge”; an implied (constructive) security interest.

Plerique. “Many [jurists], most [jurists].”

Plus est in re quam in existimatione. “There is more [significance] in the [objective] fact than in the [subjective] opinion.”

Possessio. “Possession” as a legal concept.

Potestas. “[Legitimate] power/[legal] control”; typically in reference to the potestas of the pater familias over the persons and property belonging to the family.

Precario. “By request.”

Prior tempore potior iure. “Prior in time is greater in right.”

Pro donato. lusta causa for good faith possession of property acquired by a putative donee.

Pro dote. lusta causa for good faith possession of property acquired by the putative recipient of a dowry

Pro emptore. lusta causa for good faith possession of property acquired by a putative buyer.

Pro herede. lusta causa for good faith possession of property acquired by a putative heir.

Pro legato. lusta causa for good faith possession of property acquired by a putative legatee.

Pro suo. lusta causa for good faith possession of property held by a putative owner.

Pro tradita erit accipienda. “[The property] will be deemed to have been delivered.” Procurator. “Procurator”; a kind of agent, typically with broad discretion and general power to manage the affairs of his principal. The agency is created by mandatum.

Prodigus. “Spendthrift, prodigal”; a person who has been legally so deemed.

Pupillus. “Ward.”

Quaesitum est. “The question has been asked...”

Quasi procurator. “As if a procurator.”

Receptum est. “It has been received that... ; the traditional rule is that... ”

Rectius. “Better, more correct.”

Rei vindicatio. “Vindication of property”; the legal proceeding by which an owner seeks to recover possession of his property that is currently in another's posses­sion. See section “A” of Chapter IV.

Replicatio (pl. replicationes). “Reply” to an affirmative defense.

Replicatio rei venditae et traditae. “Reply that the property was sold and delivered.” Res. “Property; subject matter.”

Res aliena. “Property of another.”

Res aliena pignori data. “Property of another given in pledge.”

Res cottidianae. “Everyday [legal] matters”; the title of a work ascribed to the jurist Gaius.

Res derelictae. “Abandoned property.”

Res furtivae. “Stolen property.”

Res judicata. “Matter that has already been adjudicated.”

Res mancipi. Property of a kind that requires the formal procedure of mancipatio or in iure cessio in order for the civil law ownership to be validly transferred. Res mancipi included “buildings and land on Italian soil, rustic (not urban) ser­vitudes connected with such land, slaves, and farm animals of draft and burden” (Berger, translating Gaius, Inst. 1.120). See mancipium.

Res nec mancipi. “Property that is not of the kind res mancipi.

Res nullius. Lit. “property of no one”; ownerless property.

Responsum. “Response”; typically of a jurist's opinion regarding a legal question that has been posed.

Reversio. “Return.”

Reversio ad dominum. “Return to the owner.”

Reversio in potestatem. “Return to the power/control [of the master or owner].” Ridiculum. “Ridiculous.”

Saltus. “Place of pasturage, pasture, grove(s).”

Senatusconsulta. “Resolutions of the Senate.”

Servus furiosus. “Slave who is mad/insane.”

Servitus. “Servitude.”

Servitus oneris ferendi. An urban servitude that requires the servient property to “sup­port the load” (typically a wall) on the adjacent dominant property.

Servus fugitivus. “Fugitive slave.”

Servus impubes. “Slave [who is an] impubes.”

Signum; signare. “Sign, mark, signature; to sign or mark.”

Solo animo. “By means of intent alone.”

Stipulatio. An enforceable promise in the form of an oral contract.

Subtilitas. “Subtlety”; in reference to a captious insistence on legal technicalities.

Superficies solo cedit. “The surface goes with the ground”; a specific instance of the more general principle defined under accessio cedit principali.

Superfluum. style='font-size:8.5pt;line-height:115%'>“Surplus” from the sale of secured property after the debt has been satis­fied from the sale proceeds. Also called hyperocha.

Taberna. “Shop.”

The(n)saurus. “Treasure”; in a legal context, “treasure-trove.”

Tignum iunctum. “Joined timber.” See actio de tigno iuncto.

Traditio. “Delivery.”

Traditio brevi manu. “Delivery by means of a short hand”; referring to constructive delivery when the property is already held by the designated possessor.

Traditio ex iusta causa. “Delivery based on a legitimate reason.”

Traditio longa manu. “Delivery by means of a long hand”; referring to a form of deliv­ery that is effective even though there is no physical contact with the property by the transferor or his agent at the time of the transfer.

Tutor. “Guardian”; typically for minors under the age of puberty; also often for adult women in connection with legal transactions.

Usuarius. “Usuary”; a person who has the right to use another's property as the benefi­ciary of the personal servitude of usus.

Usucapio. “Usucapion, usucaption”; acquisition of ownership by prescription.

Usucapio libertatis. “Usucapion of the liberty [of ownership]”; referring to the extin­guishment of an urban servitude by the servient tenant's acting in a manner incon­sistent with the servitude's existence during a limitations period of non-use by the dominant tenant.

Usufructuarius. “Usufructuary”; a person who has the right to use and take the fruits of another's property as the beneficiary of the personal servitude of usu(s)fructus.

Usu(s)fructus. “Usufruct”; a personal servitude conferring a right to the exclusive use and fruits of another's property.

Usus. “Use”; a personal servitude conferring the right to use another's property”.

Utilis. “Useful”; typically in reference to public policy or to the benefit of private liti­gants in specified circumstances.

Utilitas. “Utility”; typically in reference to public policy or to the benefit of private litigants in specified circumstances.

Utilitatis causa [iure singulari] receptum. “Accepted [by special rule] for the sake of utilitas.”

Vacua possessio. Lit. “empty possession”; referring to unencumbered or unimpeded possession.

Venire contra factum proprium non licet. “It is not permitted to come [into court] complaining of [the consequences of] one's own act.”

Verius est. “It is more correct.”

Veteres. “The old [jurists]”; in reference to those of the notionally pre-classical period. Vis/vi, vi factum. “Force/by force, done with force.”

Via. Lit. “Road, way”; an easement appurtenant to a dominant tenement, consisting of the right to travel over and to drive animals over a portion of the servient tene­ment. Cf. iter.

Vicinitas. “Vicinity”; in reference to the principle that praedial servitudes can only benefit properties adjacent to the servient property.

Vim vi repellere licet. “One may repel force with force.”

Vir bonus. See bonus vir.

Vis armata. “Armed force.”

Vulgo dictum, vulgo dicitur, vulgo traditum. “It is commonly said that; it is traditionally held that.”

the ordinary action on the pledge is not available; nevertheless, equity requires that an analogous action on the pledge should be granted without difficulty.” Emphasis added.