Band 138, Heft 1

A legal historian’s perspective on fragmentary inscriptions from Lauriacum . The fragments 4 and 18 from the small corpus of Roman legal inscriptions found at Lauriacum (Lorch/Upper Austria) contain a fragmentary text of eight lines. The terminology used in the inscription is that of a municipal law, and so the first commentators tried to identify the whole inscription as an extract from the Lex Flavia municipalis, although both fragments do not show a literal accordance to a rubric of this lex . As it will be seen, the fragments on the one hand concern the iurisdictio of municipal magistrates. On the other hand, the words usus captio , which can be read in line 7 of the tablet, have provoked a broad discussion among legal historians, who tried to explain, why the usucapio , an institution of the ius civile , could have been mentioned in this provincial context. In the last 40 years the Lex Lauriacensis has not been in the focus of Roman lawyers, and it has never been subject of a detailed commentary. Because of that, the text of the inscription and its possible additions shall be reconsidered and commentated in the following interdisciplinary study.

Causa and titulus. Qualifications of possession and a change of terminology in Ulp. D. 5,3,13,1 . – In D. 5,3,13,1, Ulpian states that every title to possession (like pro emptore , pro donato etc.) could be accompanied by a general title pro possessore , which becomes decisive if the other title failed. The text is interesting in two aspects: First, it is one of only a handful of classical texts which speak of titulus instead of causa possessionis . Therefore, the text is still today suspected of interpolation. Second, it is heavily disputed which circumstances lead to a possession pro possessore and why this typolology is used at all. This article proposes a solution to both problems. The pro possessore terminology can only be assessed correctly if we focus the procedural position of the possessor, especially in the realm of the hereditatis petitio . The new terminology ( titulus ) is a mere consequence of the fact, that the burden of prove is assigned according to the ,title‘ of possession indicated by the possessor, not by the real (and possibly unprovable) cause.

Note on professional ethics and fees in the Roman legal practice: jurists, orators, advocates . At first sight, there seems to be an accurate terminology for actors of legal assistance in Ancient Rome. Their understanding, however, must be occasionally reassessed in light of the particular context of Roman society in its respective time (such as the relevance of clientela , amicitia , and bureaucracy). Moreover, the legal practice must be analysed to further clarify their understanding. At the end of the Republic and in the Classical Age, the central topics are the links and contradictions between gratuitousness, gratia and remuneration (Cic. off. 2,65,66; D. 50,13). However, there are some actors that are difficult to grasp, such as iuris studiosi . Furthermore, no ideology can be identified concerning an advocate’s duties and countering an unscrupulous practice (Cic. off. 2,51). In Late Antiquity, the notion of key legal professionals grounds on advocati and iuris periti , as can be derived from the Colloquia scholica and in Edictum de pretiis 7,72. This development led to the creeping introduction of a remuneration for the legal profession until its realisation, manifested in Aug. Epist. 153,23.

Burying the dead as management of another´s affairs. Actio funeraria and the protection of personality rights post mortem . The paper discusses the history and the function of the Roman actio funeraria . It is argued that the claim for reimbursement of the funeral of another person is historically older than the recognition of negotiorum gestio at large and can be seen as a precursor of the actio negotiorum gestorum .

The Principle of the Irretroactivity of the Law in the Roman Legal Experience in the Republican Age . Through an in-depth analysis of literary and legal sources (primarily Cicero) and of epigraphic evidence, the author demonstrates that the principle of the law’s non-retroactivity was known to, and applied by, the Romans since the Republican age. The political struggle favored on several occasions the violation of this principle by imposing an extraordinary criminal legislation, aimed at sanctioning past behaviors of adversaries. But, although with undeniable limits of effectiveness in the dynamic relationship with the retroactivity, the author acknowledges that at the end of the first century BC non-retroactivity appeared as the dominant principle, consolidated both in the field of the civil law as well as substantive criminal law.

Tryphonin, Papinian and the regard for immaterial losses in the law of obligations . Contrary to the first impression given by the sources, there is no dispute among late classical lawyers as to whether a creditor can obtain compensation for an immaterial loss. Rather, the only disputed issue is whether a creditor can demand compensation for performance of monetary value even if it had benefitted a third party. Papinian and Paul affirm this with reference to the precept of bona fides . Tryphonin focuses on the creditor’s freedom of disposal: If the creditor can claim his interest in a hypothetical sale of the object of performance, he must also be entitled to do so if he wants to pass it on free of charge and thus prove his generosity.

D. 19,2,31 (Alf. 5 dig . a Paulo epit .) contains a juristic responsum composed in the intermediate rhetorical style. The recognition that the fragment has rhetorical aspects helps toward solving problems of authorship and makes the text intelligible from a legal perspective. The legal and rhetorical quality of the reply provides an insight into the intellectual culture of late Republican Rome.

Parakatatheke and last wills: on the background of D. 32.37.5 . Already Hans Julius Wolff refused the idea of a hermetical isolation between Roman law and local (provincial) legal practice in everyday life. Following his trace, this contribution will show that legal intercourse between different classes of provincial populace was far more intensive than generally assumed. Focusing on the period before the Constitutio Antoniniana (212 AD), a detailed exegesis of a unique decision of Scaevola follows. The Roman jurist delivers a paradigmatic case: He settles a dispute in which the Greek formula of parakatatheke was used by a Roman citizen for disposing about his assets on death. In fact, the legal act should be considered ineffective under Roman law. However, Scaevola looked for ways to enforce the claim. Roman law and provincial legal custom: Scaevola’s decision sheds a new light on the creative approach of Roman jurisdiction regarding foreign legal thoughts.

Reflections on the origin and scope of so-called laesio enormis : This paper attempts to show that the doctrine of so-called laesio enormis has its roots neither in social or economic reasons nor in moral or religious reasons. In the famous constitution C. 4,44,2 ( lex secunda ) Gregorius, a secretary of petitions under emperor Diocletian, has to solve a delicate juridical problem concerning agency: A father had sold land belonging to his son (as a procurator ) for less than half of its true value, obviously committing fraud. According to classical law (Iul. D. 41,4,7,6) the dominus negotii is allowed to sue a buyer of good faith if his procurator sells land below value for the sole purpose of causing loss. But as a son is not allowed to assert his father’s dolus (cf. for example C. 2,50,5,1), C.4,44,2 establishes objective criteria instead in order to decide in favour of the son. This allows us to explain the ultra dimidium rule, the criterion of pretium iustum , the right of the buyer to pay the difference, as well as the facts that the lex secunda is cited in C. 4,44,8 (by Hermogenian) as a precedent and that later constitutions (as CTh. 3,1,1; 4; 7) ignore a laesio ultra dimidium . Futhermore the paper discusses the procedural rules of the rescission of such a sale under Diocletian.

The Papyrology Rooms of the Sackler Library, Oxford, preserve the correspondence of the two famous papyrologists, B.P. Grenfell and A.S. Hunt, conducted with numerous scholars from Britain and continental Europe. The main subject of this correspondence is the editing of the texts found in the Oxyrhynchus papyri. On some of the most important legal papyri, namely P.Oxy. 1814, 2089 and especially 2103 (the ‘Oxyrhynchus Gaius’), Hunt sought out the collaboration of Roman law scholars such as F. de Zulueta, W.W. Buckland and E. Levy, who all participated to a varying degree in the editorial process of these legal documents. These letters, some of them hitherto unknown, are here published for the first time. They reveal the extent of the collaboration especially between Hunt and de Zulueta, the Regius Professor of Civil Law in Oxford. In addition to this correspondence, another letter on the same theme was discovered in the University Library of Aberdeen, where de Zulueta’s personal library is now located. It was sent to de Zulueta by the Italian Roman law scholar V. Arangio-Ruiz, who was then editing the PSI 1182 (the ‘Florentine Gaius’), and shows the ongoing dialogue between the two scholars on this important legal papyrus. Taken together, these letters allow a reconstruction of the editorial process applied to some of the most significant witnesses of Roman law sources unearthed in the 20 th century. This in turn provokes reflection on the desirability of submitting the standard editions of these sources to a new critical analysis.

Cautio de rato und naturale debitum in Venuleius D.46,8,8,1 . Venuleius deals with a unique case of naturalis obligatio: If a debtor, when paying to a an agent of the creditor, obtains a guarantee of approval by the creditor, he thereby indirectly recognises the claim and can therefore no longer invoke that the claim did not exist in reality, even if he defeats the creditor in a later trial.

On the meaning of Synktesis in inscriptions . The paper argues that the word σύγκτησις has the same meaning in inscriptions as in literary sources. Σύγκτησις refers to several contiguous pieces of land owned by one person.

On the meaning of σύγκτησις in Byzantine historians . The paper deals with the meaning of the word σύγκτησις in the works of Michael Attaliates and Nicetas Choniates.

The article is a re-edition of a papyrus published in the fourth volume of The Oxyrhynchus Papyri as a descriptum. It is a second-century will made for a female testator in Oxyrhynchos. One of the dispositions preserved in this text draws attention as it resembles the Roman legatum per praeceptionem, although the will was made for a peregrine.

The question whether the administrative division of the Roman empire in 364 or 395 implied also a divided legislation, i.e. that each part could or did legislate only for itself, has been extensively debated. To all appearances the emperors issued laws jointly, and likewise the prefects issued edicts jointly. Yet it is possible to deduce from the few relevant texts that these manifestations of unity were merely ideological: in practice each part could only issue laws for itself, and laws of the other part had to be confirmed expressly in order to gain validity. This implies that inclusion in the Theodosian Code of laws of each part did not make them universally valid.

Scriptores Iuris Romani. On Schiavone’s Project of Roman Legal Writers and their first volume on Quintus Mucius Scaevola . Scriptores Iuris Romani is a new edition of the works of the Roman jurists, comparable to that of any other author of Antiquity. Under the stewardship of A. Schiavone, this new edition undertakes to replace Mommsen’s edition of the Digest and Lenel’s ‘Palingenesia Iuris Civilis’. Due to its basis in the ‘approccio biografico’, and also due to a naive attitude towards the problems of the textual tradition – which becomes obvious in the editorial choices made by E. Stolfi, who is in charge of this volume on Mucius –, the edition of Mucius’ Opera is not as reliable as it should be. The whole enterprise must be considered an important achievement of scholarship on Mucius, but will neither replace Mommsen nor Lenel.

Who got seven lines erased in the funeral inscription I.Milet VI 2.570? In a funeral inscription from Miletus, well known since 1843, two passages have been neatly erased already in Antiquity. Recently they were carefully reconstructed by Praust and Wiedergut. This contribution aims to deepen the social and legal meaning of the text being not fully grasped by the authors. Surprisingly, among the persons entitled to be buried the owner of the grave monument did not mention his wife, and he restricted his sons to being sheer participants in the grave. On the other hand, he entrusted an outsider woman and her children (probably his own offspring) with power of disposal over the grave. Because of this woman his wife might have quitted the wedlock and claimed her dowry. After the owner’s death the dispute was settled resulting in the two erasures: the younger son, objecting the compromise, had been completely excluded and the former wife finally was admitted being buried in the monument.

Traces of reception in codex Paris, Bibliothèque nationale de France, lat. 4419 (Epitome monachi) . This short article deals with the manuscript Paris lat. 4419, which contains the Epitome monachi and was written at the end of the 9 th or at the beginning of the 10 th century. Some interesting annotations in the margin show the reception and interaction of users with the text. Selected annotations are discussed and analysed and an appendix with all marginal annotations of the codex is given.

Protecting the testator’s last will in times of a contagious disease: The so-called testamentum tempore pestis conditum in C. 6,23,8 (290) . This paper revisits C. 6,23,8, a constitution by emperor Diocletian from 290 CE on the subject of alleviated testamentary formalities in times of a contagious disease. It is argued that the imperial rescript is to be understood against the background of an epidemic raging at that time, maybe to be identified as the smallpocks. With this constitution, it is further argued, the emperor clarifies that a former piece of legislation, not passed down to us, exempts the testamentary witnesses in such times from assembling as a group with the person of the testator, while there is no exemption from the general requirement of calling in the accustomed number of witnesses. Thus, the emperor takes account of the testator’s need to stipulate his last will in times of crisis while at the same time having an eye to the witnesses’ fear of contagion.