Key Concepts and Elements of Roman Law
1. Unilateral Legal Act
Unilateral legal acts are those that, to be born into the life of the law, require the concurrence of the will of one party or author. Examples: Testament, recognition of a child.
2. Bilateral Contract
A bilateral contract is one in which both parties are mutually bound. Examples: Sales, leasing, etc.
3. Conditions Precedent
A condition precedent is one on which the extinction of a right depends. It depends on the cessation or termination of the effects of a legal transaction that was originally effective. Example: “I will give you this book if it rains next week.”
4. Mode
Mode is a tax levied on the beneficiary of a donation. It imposes on the recipient of an act the requirement to give a destination to all or part of the property granted.
5. Natural Elements of the Act
Natural elements of the act are those that remain essential in a legal act. They are understood to belong without special clauses, but the parties may, if they wish, exclude them from the legal act by special clauses.
6. Condictio
Explanation of each condictio created by the praetor to annul acts of strict law, where there is an absence of a cause or it is illegal:
- Condictio Indebiti: This is pursued through the return of what was given or paid under the assumption that the reason why the provision had been made did not exist. An action that is given to recover payment of something that should not have been paid.
- Condictio Causa Data Causa Non Secuta: Used when a person provides something, taking into account that the other party would make another benefit in exchange. If this is not fulfilled, the person who did not complete their part may be required to return what was delivered.
- Condictio Ob Turpem Vel Iniustam Causam: This is used in cases where a person intends to get rich on the basis of a benefit that another had promised, or had given him something to run or not to act contrary to morality or law. Action is granted to recover money paid for an illegal or immoral cause or reason.
- Condictio Sine Causa: This was used to nullify acts without cause. It was used in all cases of enrichment that lacked a particular action or condition. Action to implement for ensuring the return of possession of items delivered without a cause that justifies the transfer.
- Condictio Ex Causa Furtiva: Granted to the victim of theft against the thief and his heirs. Its source was an unlawful act. It was designed to nullify any legal action that had been made in respect of a stolen thing after committing the crime of theft. Action granted during a crime of furtum to the victim to claim from the author or his heirs compensation equivalent to the highest value reached by the stolen thing after the robbery.
7. Right Real
A right real is what we have over a thing without regard to any particular person.
8. How to Buy the Domain
The fact or act that actually transfers ownership rights.
9. Specification
Specification exists when a person performs work or creates another device with materials without the consent of any owner.
10. Tradition
Tradition is a mode of acquiring ownership of things, which consists of the delivery that the owner makes of them to another, having on the one hand the power and intention to transfer the domain and on the other the ability and intent to purchase.
11. Delivery of the Thing in Tradition
Delivery is the material element of tradition that identifies it as a mode of acquisition. Delivery occurs when the assignor makes available to the purchaser the thing they want to transfer.
Not every delivery is tradition. For example, a lessor may deliver a thing to a lessee for them to use, but this delivery is not tradition. For delivery to constitute tradition, the existence of intent to transfer the domain is required.
Types of Delivery:
- Actual Delivery: The physical delivery of the thing, the physical movement of it from the hands of the assignor to the hands of the purchaser.
- Symbolic Delivery: The assignor delivers to the purchaser something that represents the thing that is intended to be delivered, or delivers something to facilitate or make possible the holding of the same by the purchaser.
- Traditio Longa Manu: The thing is shown to be transferred, and it is some distance away or has large dimensions.
- Traditio Ficta: Cases of transformation of the state of mind of the parties with respect to a thing (fictitious: no actual delivery of the thing). Takes two forms:
- Traditio Brevi Manu: This occurs when someone has the thing as a mere holder and acquires and becomes the owner of it. (Already held by the acquirer)
- Constitutum Possessorium: The reverse situation of traditio brevi manu. The owner disposes of the thing but continues their tenure, not as owner but as a mere holder. (No animus domini requiring possession)
3. Legal Act of Strict Law
Legal acts of strict law are characteristic of the Roman ius civile, the ius quiritarium, and can only be used by Roman citizens or those who enjoyed the ius commercium. They were generally formal, and only the wording of the statement was valid. In this sense, solemnity usually required orality and was accompanied by the presence of certain state officials, judges, or Roman priests. Over time, they were used less and less, which is explained by their very nature, as they are not consistent with fast and efficient trade.
4. Legal Act in Good Faith
Legal acts in good faith require all that is required between fair and honest people, that is, those who act in good faith. They were free from formalities, and their conclusion was simple and straightforward. They were not reserved exclusively to Roman citizens but could be used by foreign pilgrims. In these acts, the judge had a greater range of interpretation, and could use items such as equity, justice, and the intent of the parties.
5. Natural Elements of the Act
Natural elements of the act are those that remain essential in a legal act. They are understood to belong without special provisions, but the parties can, if they will, exclude them from the legal act by special clauses.
6. Error in Negotia
This is an effect of an error of fact that falls on the nature of the act or contract concluded. Effects: Vitiates consent, preventing the formation of consent, thus being more than offset, zero.
7. Error in Substance
This is one that rests on the essential qualities and determinants of a thing, that is, substance, or essential quality, or matter that is the object made the point to which the act or contract refers, i.e., on a quality that is the essence of the object. Effects: It should be distinguished:
- Strict Law: Does not vitiate consent, not being voidable. The act is enforced by the wording of the statement.
- Good Faith: Vitiates consent, the contract being voidable.
8. Exceptio Doli
Exceptio doli is a defense or exception that may oppose the author’s intent, if the obligation has not yet been implemented, to prevent the perpetrator of the fraud from obtaining in court the effects of the flawed legal business. That is, one who acted fraudulently demands in trial that the victim of fraud meet their obligations under the act or contract. What the victim does is defend by opposing the exception of fraud in order to paralyze the action brought by the plaintiff, alleging that they had hatched and carried out an intentional maneuver.
9. Condictio Ob Turpem Vel Iniustam Causam
This grants an action to recover money paid for an illegal or immoral cause or reason. It is used in cases where a person intends to get rich on the basis of a provision that another had promised or given him something to run or not to act contrary to morality or law.
10. Conditions Precedent
A condition precedent is one on which the extinction of a right depends. It depends on the cessation or termination of the effects of a legal transaction that was originally effective. Example: “I will give you this book, but only if it rains next week.”
11. Occupation
Occupation is a mode of acquiring ownership of things lacking an owner, consistent with the intent to acquire the property through material apprehension.
12. Tradition
Tradition is a mode of acquiring ownership of things, which consists of the delivery thereof by the owner to another, having on the one hand the power and intention to transfer the domain and on the other the ability and intent to purchase.
13. Actions or Procedures Issued by Roman Law to Protect Bonitary Property
- Exceptio Reivinditae et Traditae: This is the plea of res mancipi which has been sold by its quiritary owner and has become a tradition. In this case, the quiritary seller remained as owner until the time the buyer purchased the domain by adverse possession. During this period, the seller could recover possession of the thing that was in the hands of the purchaser by exercising the action for repossession. Example: Someone could dispose of a horse (which is mancipi) by selling it and then making the tradition, but not occupying a way to acquire the ius civile. The seller continues to own the horse as a quiritary owner and in bad faith could claim it, and the recovery action brought by him must be accepted. This exceptio reivinditae et traditae serves to invalidate the action for restitution filed under those circumstances, with the bonitary owner retaining possession of the thing. This bonitary owner is acquitted of the attempted lawsuit against him, for which he requires proof that the thing had been sold and that he had become a tradition.
- Actio Publiciana: This allowed the bonitary owner to recover possession if he lost it, having been deprived of it or any other circumstance. Since he could not pursue the action for repossession, which falls only to the quiritary owner, the magistrate granted him this actio publiciana, establishing a fiction, namely that he had assumed the time necessary for adverse possession, considering as if the bonitary owner had acquired the quiritary domain of the thing, even without completing the required time for this. This action can be tried both against a third-party vendor and against the owner when he has regained possession of the thing.
- Exceptio Doli: Its origin is found in the replicatio doli, a move that was extended to all those who had taken delivery of a res mancipi for something different from the purchase, for example, the thing that is given in payment of the constitution of a dowry or in the event of a donation. It was intended to inhibit or stop the action for repossession by the quiritary owner who, having alienated the thing in bad faith, attempted to retrieve it. With the exception of intentional or paralyzed action for restitution in all cases, as we have pointed out, except when the title or antecedent causes that served the traditional way to acquire was the sale, since in that case, the magistrate granted the bonitary owner the exceptio reivinditae et traditae. Example: If the quiritary owner of a horse was a creditor in payment of his debt, then making the tradition, and if the owner later tried to claim it as a quiritary owner, the action for restitution could paralyze the acquirer opposing the exceptio doli.