Heredis institutio caput et fundamentum totius testamenti est – as a rule of Roman inheritance law (original) (raw)
Related papers
Law of Succession. Roman Legal Framework and Comparative Law Perspective
Wolters Kluwer Polska Warszawa, 2011
Adopting a comparative law perspective in deliberations on Roman law gives rise to a fundamental problem: the fact that the subject matter is inexhaustible. The Roman law of succession is the most extensive branch of Roman law and if one also includes in these considerations references to the regulations adopted in other laws of succession – across the ages as well as in contemporary law – it renders any attempts to give a comprehensive account impossible, although one should not have any apprehensions about rising to the challenge. Nevertheless, when writing about the Roman legal framework and comparative law perspective, at some point one has to say that ‘enough is enough’. Every fragment of this study could be developed further: both regarding the Roman regulations and the comparative context. Not everything has been said in this book, and not only because the times when extensive summae were produced have passed. No one writes works of this kind anymore and it would also be difficult to find someone willing to plough through them. In fact no one is able to prepare such a book on account of the amount of information they would have to include. Fortunately it is not access to information that is a problem today. Information is relatively easy to obtain, although this can sometimes involve considerable financial costs. What seems to be most important is the approach taken. We expect keys to interpretation and, moreover, that they are presented in a concise and accessible manner. The Roman law of succession, which was so well developed and dogmatically rich, evolved over many centuries. At different stages of its history it adopted many regulations concerning the same issues. Sometimes these solutions were vastly different from one another. All of them were thoroughly tested for their usefulness, perhaps with the exception of the ideas known from some of the imperial constitutions in late Roman law. The Roman law of succession thus constituted a jurisprudential framework of concepts. This framework can be treated as the language used for talking about the law of succession in general, irrespective even of which legal tradition the binding regulations derive from. Knowledge of the Roman law of succession – but not superficial knowledge, for example of selected regulations and only from a particular historical period in Roman law – allows any law of succession to be described: not only in mixed jurisdictions or in common law. Secondly, the Roman law of succession creates the framework for discussion about the law of succession and the regulations adopted by particular countries: about reforms, in the case of some countries, and building from scratch in the case of others. Thirdly, on account of the legal experience and specifically as a language of understanding, it offers great opportunities for the debate on the unification of the law of succession in Europe. It is difficult to overestimate the importance of the Roman experience, particularly in the area of the law of succession. Andrzej Stelmachowski’s students remember how he would tell them that one can only prove that the regulations pertaining to the area of the law of succession actually work in the third generation. Therefore the risk involved in creating new solutions is always substantial: and it is not easy to correct them. And then again, representatives of the younger generations who take part in the law-making process do not always remember what their predecessors had in mind; whereas lawyers are typically conservative, hence their unwillingness to change a law that is already familiar to them, including their reluctance to go back to using old regulations. From the perspective of the history of the law of succession, the Roman regulations are not just well developed. We owe the dissemination of many solutions to Roman law. What I specifically have in mind here is the will, which was alien to ancient laws, including the oldest Greek law as well as Germanic law. Many other solutions only started to emerge as late as in Roman law. It was therefore not only more developed than the laws that preceded it, but it was also more advanced than many of the laws that came after it. In the Law of the Twelve Tables, the Romans already distinguished between testate and intestate succession. Testamentary freedom gained increasing importance in Roman law which is why this book is divided into two parts. The first part discusses the functioning of law in society in relation to claiming succession from the deceased, and the second deals with the legal conditions under which de cuius could decide about the fate of his estate in the event of his death. Therefore, in the first part, after presenting the general notions, I point to the values and principles of the law of succession, deal with the order of intestate succession and the fate of the estate after the testator’s death. The second part concerns the will: its external form, the internal requirements for disposing of the estate and the interpretation of wills. The titles of both parts: ‘the Law’ and ‘the Testator’ point to the fulfilment of social expectations, which is so important in the law of succession, and the role of an individual as a legal entity. Two issues are involved here. The first one is understanding the law. To this end, nowadays we often make many distinctions, and European lawyers have been trying, since the Middle Ages, to formulate the law which was known to the Romans – who used it and, one could say, ‘had a ‘feel’ for it – into total formulas which describe the possible regulations theoretically and taking an overall viewpoint. In this, or in any other way, we compare and study legal history to understand our system better. The second issue pertains to man, since it is man that the law is in fact concerned with. This is connected with the tendency to create as many legal instruments as possible that enable his needs and expectations to be fulfilled. This is valued by lawyers, who like to have a lot to choose from and who are always looking for an alternative solution, because it may turn out to be better and more convenient. Roman law should be included in analyses of comparative law. If these analyses are thorough and based on an understanding of the law and its mechanisms, aims, values and principles, and do not simply involve comparing clauses or consist in arguing to prove a hypothesis that has been formulated in advance – then they are aware of and they prove the great value of the experience of Roman law. The experience of comparative law extends the experience of Roman law, verifies it and points to the dead-end alleys into which one can be led if the precepts of Roman law are slavishly followed. Common efforts are of much greater practical use: deliberating about Roman law while always having the comparative context in mind; analyzing comparative law taking Roman law into account. Therefore I pay attention to the context of comparative law when I talk about the Roman law of succession. A serious problem lies in the fact that both specialists in Roman law and comparative law specialists find it difficult to raise the consciousness of specialists in contemporary private law, namely civil law dogmatists. Inasmuch as they like to look for support in other legal orders, and are thus open to the comparative perspective, they are reluctant to pay heed to historical arguments. It is difficult to hold this against them if those arguments are sometimes badly formulated or presented. After all, historical argumentation is concerned with the usefulness of legal experience and not about telling old tales or adopting old legal solutions.
Creditur Vulgo Testamenta Hominum Speculum Est Morum: Why the Romans Made Wills
Classical Philology 84 (1989) 198-215
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Roman Legal Tradition, 2010
This article discusses the origins and development of the benevolent interpretation of wills. Modern law tends to construe a will, as far as possible, in a way that gives effect to the testator's intention and consequently avoids intestacy. This principle derives from a historical development which traces back to a Roman concept of benignior interpretatio, established by Ulpius Marcellus in the second century AD in a case where the testator's intention was unclear and the results of possible interpretations were even contradictory. Marcellus suggested interpreting the testator's behaviour with regard to his intention, in so far as it can be ascertained, at least partially, as a hypothetical intention. On the basis of an evaluative judgment Marcellus found a solution which is, as far as possible, in the testator's interest (benignior).
Law of Succession: Roman Framework and Comparative Perspective
Volume realizzato con l'intervento della Scuola di Giurisprudenza dell'Università di Camerino e del «Consorzio interuniversitario Gérard Boulvert per lo studio della civiltà giuridica europea e per la storia dei suoi ordinamenti» nell'àmbito della Convenzione con il Consiglio Nazionale delle Ricerche.
Wills in the Roman empire: a documentary approach, JJP Supp. 23, Warsaw 2015
The present book deals with the testamentary practice as seen through papyri, tablets, doctrinal and literary sources, manuscript tradition, etc. mostly in the period after the constitutio Antoniniana. The aim of Wills in the Roman empire: a documentary approach is to reconstruct how people applied law and how testamentary practice looked like in everyday life: how wills were made and opened, what was the meaning of particular dispositions. These questions constitute a part of a wider discussion concerning the level of knowledge and application of Roman law in the provinces after the edict of Caracalla. The book is supplemented with four Appendices, where all wills from the Hellenistic, Roman, and Byzantine periods are collected for the first time in scholarly literature.
Usucapio pro herede in The Institutes of Gaius
Krakowskie Studia z Historii Państwa i Prawa, 2018
Roman legal sources concerning usucapion in place of an heir (usucapio pro herede) are not numerous. We will only fi nd a relevant fragment in the second commentary of Gaius' Institutiones and a short text Pro herede vel pro possessore in the 41 st book of Justinian's Digesta. The paper focuses on the exegesis of the fi rst of the sources. According to the institution of usucapion in place of an heir, anybody who possessed any goods belonging to an inheritance could acquire the inheritance within a year. Therefore, the main purpose of the institution seemed to be determining who was going to be responsible for continuing the domestic worship (sacra familiaria). When the sacra had lost their social signifi cance, usucapio pro herede changed its subject to the goods that belonged to an inheritance, not the inheritance as such. In classical Roman law, usucapion in place of an heir started to be considered a dishonourable legal institution. Emperor Hadrian marginalised usucapio pro herede through a decree of the senate sponsored by him. The senatus consultum made usucapion possible to reverse by the actual heir. Emperor Marcus Aurelius introduced a new crime, the crimen expilatae hereditatis, which consisted in taking over goods that belonged to someone else's inheritance. However, usucapio pro herede was never abolished in a legal act.
Chung-Ang Saron, 2020
The Roman Empire has been celebrated for its integration policies, e.g. through granting citizenship to retired soldiers of the auxilia or to honoratiores of municipia. So far, however, it has been rarely looked at the effects these integration-policies had on Roman law. In this paper, the extent of the flexibility of Roman law dealing with incoming “foreign” elements (persons, legal traditions, etc.) is analyzed, with focus on elite integration. Particularly, some effects and necessities of regulating those issues can be observed in the Spanish municipal statutes. While on the one hand, legislators and jurisprudents tried everything to integrate such cases into the existing framework, at certain points minor issues became major problems and forced to modify or even change long-lived legal frames, especially with regard to family law and law of succession. Imperial taxation of inheritances, the so-called vicesimal hereditatium, can be regarded as a specific promoter of such change. Thus, the contact zones of municipia with regular “production” of new citizens had a great impact on the whole system of Roman law and society, and substantially tested Roman “integrativeness”.