ROMAN LAW

LAW – rule of conduct, just and obligatory, promulgated by a legitimate body. – St. Thomas ROMAN LAW: oftentimes interchangeably with Civil Law.

used

1. Extensive Sense – legal rules and principles which were in force among Romans without reference to the time when they were adopted. 2. Restricted Sense – law compiled under the support of the Emperor Justinian and his successors, comprising the Institutes, Digest and Novels, collectively denominated (body of civil law) to which all refer now as the authority or written reason, 2 DIVISIONS OF ROMAN LAW: 1. Public Laws – are the political, administrative and public international laws, including criminal and procedure. 2. Private Laws – known as “civil law” which includes mercantile law, private international law and civil procedure. It covers rules defining the rights and duties of the members of the community which arise from their mutual relations and to society for the protection of private interest. AUGUST 30, 1950 – effectivity date of the New Civil Code (Manuel Roxas, EO 48) HISTORY OF ROMAN LAW: - During the Roman Empire, the emperors became the absolute rulers. Christianity became the state religion. Rome was the cotiqueror, civilizer and law giver. PRE-JUSTINIAN ERA: 1. Archaic Period – Rome was an Aristocratic Nation controlled by the Senate. The Roman Senators held a magistry and perform public rites and gave advice on questions of law. o TWELVE TABLES – collection of legal principles engraved on

metal tablets and set up on the forum. 2. Republican Period – law was developed through the rise of a number of Jurists. (books were written: Law on persons, Real Rights and Obligations with monographs and commentaries) 3. Classical Period – Emperor Caesar gave importance to the opinions of the jurists. Later, their opinions became decisions. Legal Literature was produced (one of the most important works in this period) – Paul’s Quaestiones and Modestinus Responsa (most outstanding writing) 4. Post Classical Period – The jurists became the official advisers and who prepare the statutes. On question of laws, the majority opinion prevails than individual opinions. Law degree was required for government employment. JUSTINIAN CODIFICATION – the most significant in the history of Roman Law. The codification was necessary in order to revise all existing law and to correct all inconsistencies. CORPUS JURIS (Body of Law): 1. Institutes – an introduction to the entire work. It came from commentaries (book on persons, obligations and action) 2. Digests or Pandects – the purpose it to extract the spirit of jurisprudence from the decision made (from the questions and disputes of the Roman civilians) 3. Codex – contains Public and Criminal Law, based on the constitutions or documents issued from the Emperor. 4. Novels or Novellae Constitutiones – relates to Public and Ecclesiastical Affairs, Private Law and Intestate Succession.

ROMAN LAW – Prelim Reviewer R.A. 2010-2011

BARTOLISTS – applied Roman Law to practical problems of government administration. IUS – “whole body of law” (legal system) 1. Broad Sense – whole system of law (rights and duties protected and enforced) 2. Specific Sense – the right of the person JUSTICE – to render everyone his due JURISPRUDENCE – the study of both human and divine law PUBLIC LAW – regulates the government of the state and defines its relation with the citizens PRIVATE LAW – determines the rights and duties of individuals 1. Jus Naturale – “law of nature”, represents more of the moral basis upon which law is founded. 2. Jus Gentium – “law of nation”, a magistry with the duty of deciding cases between citizens and foreigners (treaties) 3. Jus Civil – “law of citizens”, the law which the people make for their own government and exclusively for that state. WRITTEN sources:

LAWS – drawn from several

1. Positive – enactments of assemblies a. Leges – “law”, proposed by different monarchs b. Plebiscita – law enacted by the people c. Senatus Consulta – law passed by senate or legislative body 2. Principium Placita – imperial laws or direct expressions of the imperial will a. Edicta – “proclamations” of the emperor

b. Decreta – “decrees”, judicial sentences of the emperor in cases submitted to him for judgment c. Mandata – “mandate”, instructions which the emperor addressed to a public function d. Rescripta – “rescripts”, answers given by the emperor to the magistrates for decisions of doubtful points. d.1. Epistola – reply to an official’s inquiry d.2. Subscriptio – reply to a private person 3. Magistratium Edicta – statements of the rules to be followed by a magistrate in deciding cases. a. Edictum Perpetuum – the praetor published a list of rules by he which intended to be bound. b. Edictum Repentinum – an emergency edict made to meet a particular case. 4. Responsa Prudentum – consisted of the answers and opinions of the jurists on legal questions submitted to them. o JURISCONSULTS – one who interprets the law publicly. AEQUITAS – “equity” (equal or fair), used an alternative to the word justum (lawful and just). LAW ON PERSONS: Personarum”

“De

Jure

CAPACTIY TO ACT – power to do acts with legal effects, is acquired and may be lost through death. PERSONAL CAPACITY - any person being capable of having and being the subject to rights. JURIDICAL CAPACITY – fitness to be the subject of legal relations ROMAN LAW – Prelim Reviewer R.A. 2010-2011

STATUS – capacity of the individual for the exercise and enjoyment of legal rights and his susceptibility to incur obligations BEGINNING OF PERSONALITY: - At the time of birth - When completely separated from the womb which is capable of surviving 3 TYPE OF STATUS: 1. Libertas – capacity to have and be the subject of rights and obligation of a FREEMAN. 2. Civitas - capacity to have and be the subject of rights and obligation of a ROMAN CITIZEN. 3. Familia - capacity to have and be the subject of rights and obligation of a person belonging to a ROMAN FAMILY. FREEDOM – the natural power to do what he pleases, unless prevented either by force or by law. SLAVERY – an institution of the law of nations whereby one is made the property of another, contrary to natural right. PATRIA POTESTAS – authority exercised by the head of the family. FAMILIA – all persons of the blood of the same ancestor; head of the family; all connected by agnation (under main blood); slaves of a man; property of a pater familias of whatever sort. CAUSES FOR THE RISE OF PATRIA POTESTAS: 1. Marriage 2. Legitimation 3. Adoption MARRIAGE – the legal tie that is formed by the union of a man and woman carrying with it the mode of life in which they are inseparable. NUPTIA – the ceremony which leads to the formation of the tie. 3 ESSENTIAL Roman Law)

REQUISITES:

(under

1. Consent of Parties a. Confarreatio – religious ceremony solemnized by a priest b. Coemptio – symbolic purchase of the wife in the presence of 5 witnesses and a balance holder. c. Usus – cohabitation of a man and a woman with the intention to marry within 1 year. (if the wife absented herself for 3 nights within one year, Usus is interrupted) 2. Age of Puberty – 14 yrs old (male); 12 yrs old (female) 3. Connubium – legal power of contracting marriage (legal capacity) a. Citizenship – both parties must be Romans b. Consanguinitas – “blood relationship”, prohibits marriages falling within the degree of blood relationship. i. Marriages between Collateral Relatives ii. Marriage of 1st cousincs iii. Man may not marry his paternal or maternal aunt c. Affinitas – marriages between “in-laws” d. Public Policy or Political Ground - (ex. Senator could not marry freed-woman; guardian cannot marry his ward; governor cannot marry an inhabitant) 4. If the parties are Alieni Juris (dependent) the consent of the pater familias was necessary. SPONSALIA – promise to contract a tie wherein the parties, at the age of 7 and their respective pater familias assure their consent. COMMUNITY PROPERTY – the new civil code eliminated the dowry system, although the parties may stipulate on it. (except for cultures with dowry system) DONATIONS PROPTER NUPTIAS – gifts that are given to the spouses by reason of their marriage. ROMAN LAW – Prelim Reviewer R.A. 2010-2011

DIVORCE marriage

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breaking

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LEGITIMATION – legal process wherein the offspring in concubinage were placed in the same position of legitimate children. ADOPTION – act by which the relation of paternity and filiation are established between persons not related by nature. 2 FORM OF ADOPTIO: 1. Plena – same effect as the adoption 2. Minus Plena – the adopted son remained in the family of his natural father. ADOTION OF A PERSON ALIENI JURIS: 1. Injure Cession – a fictitious lawsuit in which the adopting parent claims the adopted. 2. Execution of deed of adoption before a magistrate with the natural father expressing his consent. ADROGATIO – adoption of a person sui juris; not only adopted, but also those under his own potestas came under the control of the adopter. TERMINATION OF PATRIA POTESTAS: 1. Death of the pater or filius (father) 2. Loss or reduction of civil status of either parent or son 3. Attainment of a public distinction 4. Unworthy act of the pater familias 5. Emancipation 6. Marriage of children 7. Adoption TUTELA – “Tutor”, power given over a free person; it is exercised over children and women. It is ended when the pupil attained the age of puberty. 2 DUTIES OF A TUTOR: 1. To look after the ward 2. To administer the properties of the ward

TUTELAGE – is ended by the death of either the pupil or the tutor CURA - Guardianship over persons which commences after the age of puberty. 1. Minoris – exercised over adolescents, persons above 14 yrs old but below 25. 2. Prodigii – curatorship over sepndthrifts 3. Furiosi – “madman” 4. Special case of of cura – persons suffering from physical or mental defects.

DUTIES AND RESPONSIBILITIES OF GUARDIANSHIP: (Exception to the rule that those appointed were obliged to accept it) 1. Possession of 3 or more children. (grandchildren by a Son is counted; not from daughter) 2. Extreme poverty or ignorance 3. Rendition of public services such as the holding of an important magistracy 4. Membership in the intellectual or privileged of aristocracy of philosophers and grammarians, rhetoricians, physicians 5. Being in a position adverse to that of the pupil, such as enmity against the father or the pupil 6. The holding of 3 or more unsolicited tutelages or curatorship 7. Ill health of it prevents one from attending to his own affairs 8. He whose status has been questioned by the father of the pupil 9. Persons above 70 yrs old are excused 10.Persons in the military service 11.Those absent in the service of the state 12.Creditors or debtors of the pupil TERMINATION OF GUARDIANSHIP: 1. Death of the guardian or ward 2. Expiration of the term fixed in the testament (if appointed by testament) 3. Capitis Diminutio suffered by tutor or his loss of citizenship ROMAN LAW – Prelim Reviewer R.A. 2010-2011

4. Attainment of the age of puberty for the tutela or 25 yrs for the cura 5. Removal by magistrate on grounds of misconduct or extreme negligence 6. Retirement of the guardian

ROMAN LAW – Prelim Reviewer R.A. 2010-2011