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Persons Notes

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Law of Persons

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Gaius says all men are either free or slaves - rights depended entirely on status. Classifications to consider: o Free or unfree (note that there were quasi-servile conditions e.g. civil bondage) o Sui juris (in his own power) or alieni juris (in another's power) o Under guardianship or not under guardianship

Capitis deminutio

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The process by which status was reduced was capitis deminutio.

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It had a threefold role, affecting the three pillars of Roman life: o Status familiae - family rights o Status libertatis - freedom o Status civitatus - citizenship. Types of capitis deminutio:

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Minima - Family rights changed, but freedom and citizenship were retained. Could not enjoy the rights of his previous family. Note that while capitis deminutio carries negative connotations, this could occur as a result of normal things such as emancipation etc.

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Minor vel media - Loss of citizenship, but freedom was retained - banishment/deportation etc. Loss of commercium, connumbium and the ability to make a will.

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Maxima - All rights were lost - enslavement. Patriapotestas - Family

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Patria potestas means paternal power. The paterfamilias of a family had almost absolute control over those in his control and their property.

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The paterfamilias was the representative of the family - one roof, one purse etc. Only he could sue and be sued on contracts etc.

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The lineage of paterfamilias was determined through agnatic ties - male blood lines.

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Note that this concept was a fundamentally Roman one, and in many ways made little sense even to them. The Greeks, from whom the Romans took a lot from, granted sons a lot more power than the Romans. Effect of patriapotestas on family members:

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His power was huge and in early times he could put his children to death.

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The paterfamilias was expected to act out of 'love and not cruelty' - the censor could punish a paterfamilias who abused his powers. The paterfamilias was liable for delicts of those in his power. However, he was liable only up to value of the wrongdoer, otherwise he could surrender the individual concerned (noxal surrender).

Effect on the family's property:

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All family property (even that of, say, a middle aged married man) belonged to the paterfamilias.

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Some exceptions: o Peculium - property that belonged to a son indepently. It may have been gained through a gift by his father, from the State through property obtained on military service, and of certain officials. Note that a peculium given by the father remained his property. o Bona materna - a son could independently inherit from his mother (subject to a usufruct held by his father). o Bona adventicia - the right to inherit was extended, but the father could retain one half of the value on emancipation. The creation of potestas

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Potestas was created: o By birth (if under a valid marriage between Roman citizens) o By marriage (a manus marriage meant a woman changed family, but a free marriage meant she kept the same paterfamilias) o By legitimation of a child o By adoption (this was often to prevent a family dying out) o By imperial rescript (on extensions of citizenship) o On error of marriage (where a man accidentally married a woman he thought to be an error. On proof of the error citizenship was extended and potestas created) Termination of potestas:

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Death - where a father died his children became sui juris. Where a grandfather died, the status of paterfamilias may have passed to father.

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Variations on status - where there was a loss of status, where a wife had a manus marriage, where there was an adoption.

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On attainment of certain prestigious positions.

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Note the paterfamilias could not renounce potestas by throwing someone out of the house. Would require enslavement or death. Adoption

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Two types of adoption:

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