Law Of Persons Notes

Supervision 2 The Law of Persons I. Legal Personality & Status The distinction between natural and juristic persons did not exist in Roman law; 'persons' meant human beings. However, some non-human corporate entities were recognised in law for expediency: Collegia - private societies formed as trade guilds. Allowed to hold property, benefit from legal obligations and appear in legal proceedings. Municipia - Different types of local community. Could own property, receive legacies etc... "Slavery is an institution of the ius gentium, whereby someone is against nature made subject to the ownership of another" D.1.5.4.1 III. Freedom and the Law of Slavery Methods of being enslaved: of children: paterfamilias had the right to sell his children - Sale (a) crime (b) evasion of duty e.g. not being listed in census; failure -to Punishment: pay debts (c) ingratitude to ex-master (d) S.C. Claudianum AD 52 forbad a female citizen from cohabiting with a male slave (e) selling oneself (illegal to do, punishment is enslavement) (f) straying dediticii (persons who have taken arms receive gifts and legacies. against Rome and were banished). Capture in war Charities - Again, after the conversion. Gifts usually made by Bishops. Birth: if the mother was a slave, so was the child. Hadrian provided only if the The State - Certain things not capable of public ownership e.g. sea mother had not been free at any point from conception to birth. If father was shores; provincial land. slave but mother a citizen, the child was free, provided she and the slave father were not cohabiting. The legal position of a slave Status - legal condition. Caput - the sum of rights, duties and powers vested by (i) Maltreatment - In early law the master had the power of life and death; brutal treatment that condition. In order to be of full status, one had to possess: brought disappointment however. In 81 BC the unjustified killing of someone else's slave (1) Freedom (libertas) - not a slave. was made a crime. In the 1st Century AD the lex Patronia penalised masters from forcing their slaves to fight wild beats in the arena without mag permission. In AD 428 it (2) Citizenship (civitas) - a citizen of Rome. was decreed that any slave forced into prostitution by her master was automatically freed. (3) Family (familia) - belonged to a Roman household A long line of enactments culminated in Justinian's 'reasonable chastisement' decree. Loss of any of these elements resulted in capitis deminutio (the greatest was loss of freedom; the least, a loss of family). (ii) Legal proceedings and noxal surrender - Could not be party to legal actions but were Churches - Only after the Christian conversion by Constantine - could! Actio quod iusu: Under this action the master was liable for a contract which he had expressly authorised his slave to make. Actio de peculio: A master could be sued to the extent of the value of the slave's peculium at the time of judgement, even if the transaction had been forbidden. If the master had benefitted beyond the peculium he is liable for this too. Actio tributoria: This action was available when the slave incurred obligations while trading with his peculium to the knowledge of the master. Liability limited to the part of the peculium used in the trade. responsible for any crimes they committed. Could act as witnesses; master could sue if slave was victim of delict. If slave committed delict, the master had a choice between paying for damage or surrendering slave (noxal surrender). Under Justinian, a slave who had been surrendered then worked off the damage was entitled to freedom. ! (iii) Property - Slaves could not own property; anything he acquired went to master. Slaves sometimes allowed a peculium; customs of the peculium generally viewed slave as virtual owner. ! (iv) Contracts - Slaves could make contracts for their masters. From the 2nd Century BC the praetor began to grant remedies against the master on his slave's contract. The underlying idea was that the master took the benefits derived from his slave's activities ought to take the burdens too. 

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