Periods of Roman legal history: Early Roman Law (753-250 BC) The ius civile is only recognized legal system applicable only to Roman citizens and was inflexible and formal Preclassical period (250-27 BC) Introduction of the ius gentium legal system applicable to matters concerning foreigners and was noted for its equality, flexibility and lack of formalism Classical period (27BC – AD 284) In AD 212 Emperor Caracalla promulgated the constitutio Antoniniana, which theoretically extends citizenship to all inhabitants of the Roman Empire. This removed any need for different legal systems for citizens and non-citizens and the differences between the various systems gradually disappeared Postclassical period (AD 284-565) Due to lawmen not having a sound knowledge of Latin and Greek and a widespread shortage of written legal sources, the law became increasingly simplified and superficial with more local laws introduced. There was a renewed interest in classical law which led to the codification by Emperor Justinian (Corpus lures Civilis). The Roman Law of Things Part A Definition: the system of legal principles / rules that regulate the relationship between a legal subject and a particular kind of legal object, namely a thing. Function: to harmonise the great variety of individual rights in respect of things, regulated in three ways: Defining the content and limits of ownership Harmonising the cases where different people have different real rights in respect of the same thing Regulating the exchange of and dealings with things and real rights Res in nostro patrimonio Things in the estate Res extra nostrum patrimonium Things outside the estate – of no significance to the law of things as these are things beyond human control and ownership could not be had Such things were either: Things subject to divine law (res nullius divini uiris), Things that belonged to the state or community (res communes omnium), or Things that belonged to everyone (res nullius humani iuris) Res in commercio Things in commerce which could be acquired in ownership Res extra commercium Things outside commerce which could not be acquired in ownership Various things in the commercial world: Corporeal things: things that can be touched or observed by means of the senses (land, books, etc). Only corporeal things were susceptible to ownership and possession
The Roman Law of Obligations Part B General Principles of the law of obligations The law of obligations is characterised by a right to claim a specific performance from a specific person This is a personal right which can be enforced with the aid of a personal action Definition of obligation: a legal bond between 2 or more parties, one of which had a personal right (creditor) against the other party (debtor) to enforce a particular performance, while the debtor is under obligation to the creditor to perform Creditor has personal right to performance Debtor has obligation to perform Sources of obligations Contracts: in roman law not every agreement gave rise to an obligatory contract. To create an enforceable contract, the element of causa contractus had to be present: The 4 types of contracts recognized by Roman law: Agreement + delivery of a thing = contractus re Real contracts created by agreement followed by delivery of a thing Examples: loan for consumption, loan for use, deposit and pledge Agreement + formal words = contractus verbis Agreement followed by the use of certain formal words Example: Stipulatio where only one party promises the other party that he will perform Agreement + writing = contractus litteris Agreement followed by a written document or written entry into a ledger Example: Agreement = contractus consensu A consensual agreement (no further requirements) Examples: contracts of purchase and sale, letting & hiring, mandate & the contract of partnership Later on, if an agreement did not fall into any of the above 4 categories, the praetor could intervene and hold the parties to an agreement, despite that no contract existed. Eventually this led to the position where a mere agreement could give rise to a contract = relevant today! Example: Conradie v Rossouw 1919 AD 279 at 320 Appeal Judge Solomon formulated the principle that is still accepted as the basis for the existence of a contract today: An agreement between 2 or more persons entered into seriously and deliberately is enforceable by action