Volume 137, Issue 1

Law Reception in Antiquity . According to ancient records Rome sent to Athens and elsewhere to collect material for the Twelve Tables. Certain specific provisions of the Twelve Tables are said to be derived from Solon’s laws. All this is doubted today, but without sufficient reasons. Tab. V 3 Uti legassit etc. derives, as it seems, from Solon’s law on testamentary dispositions.

Reuven Yaron (1924–2014) in memoriam The importance of Ancient Jewish Law for Roman Law and Ancient Legal History – the example of the Rabbinic reception and modification of the Greco-Hellenistic diathēkē as dîjathîqî and the donatio mortis causa . This paper aims to show that ancient Jewish law is of greatest importance for interpreting Roman law and understanding ancient legal history. After exemplifying the close relation of the Pentateuch and the cuneiform law, we focus on the reception and modification of the Greco-Hellenistic diathēkē (testament), which came into Jewish law during tannaitic times as dîjathîqî and was reinterpreted by the rabbis as donation. Finally, we compare the rabbinic dîjathîqî and the Roman donatio mortis causa .

On litiscrescence in the actio ex testamento . The phenomenon of litiscrescence is allegedly already known to the Twelve Tables. In particular Max Kaser has convincingly attributed it to the ancient executive proceedings involving a vindex . While studies on the peculiarities of litiscrescence in the actio iudicati and the actio depensi as well as the actio legis Aquiliae (the only action which has retained this kind of ,penalty‘ in Justinian’s age) are available, an indepth study on the actio ex testamento in this context is missing. There are various specialities to consider, not only because of the different persons involved (testator, heir, legatee) but also because of the different possible objects of bequests and because there is not only o ne actio ex testamento but several. Whether general conclusions on litiscrescence can be drawn from these constellations will have to be considered.

The Roots of Prescription in Classical Roman Law : While it is widely presumed that prescription did not exist in Classical Roman Law, the author intends to show that, within certain areas of law, prescription was already in existence in Augustan times. The praescriptio temporis was used in penal and civil procedure alike and was submitted during preliminary proceedings. The most prominent prescription, the praescriptio longi temporis , stemmed from Roman fiscal law and potentially originated in Flavian times.

Die actio quasi Publiciana im byzantinischen Recht . In literature, D. 17,1,57 has been extensively discussed. In this fragment the former owner could reclaim his property by using the actio Publiciana, notwithstanding that the defendants had in good faith acquired ownership by acquisitive prescription (usucapio). The actio Publiciana in D. 17,1,57 should be interpreted as a special form of the actio Publiciana, which was normally given to a possessor in good faith. From Basilica-scholia it can be deduced that this special action, mentioned as actio quasi Publiciana, also applies in other cases. In Justinianic and Byzantine law the judge had to evaluate whether it was right that the defendant could raise an exceptio iusti dominii against this special form of the actio Publiciana.

Can Roman law still be a useful part of the compulsory curricular programme for legal education in the Netherlands? At the beginning of the nineteenth century Roman law taught the student a further systematization of private law. Later it was seen as an introduction to present-day private law, irrespective of whether it was taught in a pandectistic or a more historical way. For the second half of the twentieth century three divergent approaches could be discerned i.e. a ‘pandectistic’, a ‘neo-humanistic’ and a ‘legal historical’ one. Given this until recently existing state of legal education, various premises can be formulated, which preferably should underlie the teaching of Roman law in the near future, viz. an applicative approach, a connection with legal historical research, the awareness that the civilian tradition is not the only one and that it only started with the glossators, and avoiding anachronisms.

This contribution deals with Livy’s account of the peace treaty of Apamea between Rome and Antiochus III (189/188 BC), and in particular with Liv. 37,56,1–6, which treats the division of the Seleucid dominions in Asia Minor between Eumenes II and the Rhodians. With attention to Yardley’s new Loeb edition and translation of Livy’s fourth decade, it discusses grammatical problems and questions of textual transmission, translation, and historical and geographical interpretation.

On the noxal liability of the naked owner . According to an ancient and undisputed opinion the owner of a servus fructuarius could be sued noxally only if he had hired the slave from the usufructuary. The author aims at remediating this view by arguing that the owner of a servus fructuarius was already as such noxally liable if he was able to surrender the slave to the victim.

D. 50,9,6 (Scaev. 1 dig): Interpretation of a Municipal Statute Induced by a Governor? The responsum D. 50,9,6 (Scaev. 1 dig) of Q. Cervidius Scaevola contains a municipal law in Greek, punishing anyone requiring justice by avoiding the ordinary legal proceedings before the synhedrion. The inquirer asks if he committed a punishable offence since he acted in ignorance against a decretum. Scaevola replies that only offenders acting intentionally will undergo punishment. Although repudiating his suspicions of interpolations, this paper supports the hypothesis of Staffhorst, who considers the statute not emanating from a municipium, but from a Greek Polis. Furthermore, the analysis confirms that the decretum contains an interdiction to take action within another court than the synhedrion. The ignorantia concerns neither the statute, nor the decision, but the unlawfulness of the behaviour itself (adversus decretum facere) and is a conventional criterion of the Roman jurists in order to exclude bad faith or fault. Finally, the statute could be regarded as a rule originating from the authority of a Roman governor concerning provincial procedural law and its promulgation might have been induced by the governor himself in order to reduce the number of provincial inquiries towards Roman officials. Inhalt: I. Einleitung; II. Zur Datierung der Responsen Scaevolas; III. Interpolationsvermutungen; IV. Zu ignorans adversus decretum facere und zur Auslegung der Strafnorm ; V. Ergebnisse

Reconstruction and Editorial History of D. 27,1,6,14 (Mod. 2 excus.) . The Codex Florentinus, sole witness of the complete Graeca Modestini, is partially illegible at D. 27,1,6,14. This paper argues that the damaged part read ἔθνους ἱερωσύνη, against Mommsen’s rendering (ἔθνους ἱεραρχία). It then reviews the paragraph’s editorial history.

Reconstruction of D. 27,1,8pr. (Mod. 3 excus.) and C. 6,65,2 (Gord.; a. 239) . The Codex Florentinus, sole witness of the complete Graeca Modestini, is partially illegible at D. 27,1,8pr. This paper argues that the damaged part read πάντων πάλαι στρατιωτῶν, against Mommsen’s rendering (ἢ πάντων πάλαι στρατιωτῶν). Further, it proposes an emendation to Krüger’s text of C. 5,65,2 on the basis of the indirect Greek tradition that goes contrary to the Latin manuscripts.

On the text of the epistula in D. 34,4,30,1 (Scaev. 20 dig.) . The paper proposes to structure the epistula in D. 34,4,30,1 into a salutation, an affirmation of the following disposition, and the disposition. Over the course of the text’s tradition, parts of the disposition probably went lost, which led to a corruption.

Emendations to D. 29,1,2, D. 40,5,20 and C. 1,27,2,8 . Mommsen’s and Krüger’s respective editions of D. 29,1,2, D. 40,5,20 and C. 1,27,2,8 have observo in stand with the accusative. It is argued that it should stand with the ablative.

Constitutum possessorium in a case of quasi possessio . A precario tenens has interdictal possession of the right of way during the period of his holding. He has, likewise the holder of the predial servitude, an interdictum de itinere actuque . In D. 43,19,1,11 a precario tenens borrowes the right of way a second time, but from whom? And from whom he did it the first time? The understanding of the text is open to dispute. We should consider the facts in a different way, as if a constitutum possessorium has accrued: the right-holder regains quasi possessio of his right (interdictal possession de itinere ).

A fragment from the anonymous text known as the Collatio Legum Mosaicarum et Romanarum (The Collation of the Laws of Moses and of the Romans) or the Lex Dei (the Law of God) has recently been identified in the State Archives in Zadar, Croatia. The C ollatio is a late antique collection of Old Testament strictures and passages from Roman jurists and Roman law which continues to be the subject of scholarly debate. Close examination of this new fragment in the context of the manuscript tradition of the work can give insight into the nature of the lost codex from which it came as well as shed light on the transmission of the Collatio in the Middle Ages.

Emanzipation as rite de passage . Formula Visigothica 34 (7 th c.) describes an emancipation. The text suggests that sons of Romans had an expectation to be released in this way from the paternal power when they reached the age of majority. Emancipation was specifically dealt with in their law, the Lex Romana Visigothorum. Some of these do not figure in Justinian’s Code. They might fit the gap, otherwise filled by excerpts from the Theodosian Code, which, however, C. 8,48,6 of 531 would have made outdated. Form. 34 treats the emancipation as a rite de passage . As such it would have accommodated those peoples, made Roman in 212, whose children normally reached majority at a certain age but now were subjected to the Roman patria potestas -system. In this way the old situation would be restored within the Roman setting. Two Theodosian constitutions indicate indeed such a general use.