I. Eine μίσθωσις eines Palmengartens aus Philadelphia (P.Freib. 76) (Wolfgang Kaiser) (DOI 10.1515/zrgr-2022-0001)
Abstract:
The article edits, translates and comments a previously unreleased μίσθωσις of the year 226 AD about the date harvest of a palm grove in Philadelphia in Arsinoites (= P.Freib. 76). An offer in the form of a hypomnema forms the basis of the μίσθωσις. The owner of the property is an imperial priest and νεωκόρος of the great Sarapis, who is represented on the ground by a φροντιστής. Apart from boilerplate clauses the offer shows some special features. Except for the φόρος the five μισθωταί also pay another sum of money to the owner for the custody and the fertilization of the date palms. In appendix I it is discussed if further versions of the contract can be assumed, appendix II tries to do a partial reconstruction of P.Tebt. I 158 and appendix III discusses the problem of an adequate legal terminology to describe a μίσθωσις.
II. Bemerkungen zur celsinischen Definition der actio (Cels. 3 dig. D. 44,7,51) (Anna Novitskaya) (DOI 10.1515/zrgr-2022-0002)
Abstract:
Roman jurist Publius Juventus Celsus defines the actio as a right to pursue by judicial process that which is owed to one (Cels 3 dig. D. 44,7,51). This definition shaped modern terms in the European legal tradition such as an action in law, a subjective right, a civil procedure, a law suit etc. The article shows how the definition of Celsus was (mis)understood and (re)interpreted during the history of reception of Roman law. The primary focus will lie on the reinterpretation of the Celsus-Definition in the 19th century in the context of German pandectistic tradition. It will be shown, how the definition of Celsus formed modern axiomatic concepts of the German legal terminology und how it lost some of its relevance after the methodological shifts in Roman law scholarship in the 20th century.
III. Die testamentarischen Bestimmungen der tabula cerata von Trawsfynydd (AE 2004, 852) (Lisa Isola) (DOI 10.1515/zrgr-2022-0003)
Abstract:
Roman wills were usually written on waxed tablets due to the sealing regulations of the SC Neronianum and the associated enforceability of an assignment to the estate. Such wills were probably made by thousands of Roman citizens. Surprisingly, only one will of this type has survived in its almost complete form. Apart from a very small number of further fragments known from Egypt, a tablet from Wales was edited nearly twenty years ago, but has received little attention in the literature on Roman law and ancient legal history. The following article is dedicated to this tabula cerata from Trawsfynydd.
IV. Aequum putavit imperator. Imperial representation and juristic self-fashioning in the Decreta and Imperiales Sententiae of Julius Paulus (Elsemieke Daalder) (DOI 10.1515/zrgr-2022-0004)
Abstract:
This article discusses the content, context and publication of two collections of imperial judgments compiled by the Roman jurist Paul, the Decretorum libri tres and the Imperialium sententiarum in cognitionibus prolatarum libri sex. Based on a legal and contextual analysis of the 37 cases surviving in Justinian’s Digest, it is argued that these works served a political purpose and should mainly be regarded as a contribution to the imperial rhetoric and propaganda of its protagonist, the emperor Septimius Severus (193–211 CE). At the same time, the texts from these works also reveal Paul’s own desire to present himself as a skilled, knowledgeable and influential jurist.
V. The priority of acquisition secured creditors in classical Roman law (Vincent van Hoof) (DOI 10.1515/zrgr-2022-0005)
Abstract:
Sources on the (privileged) position of a secured creditor who has financed the acquisition of an asset are scarce. A comprehensive set of rules on the obtaining and enforcement of this type of security is absent. Dernburg has suggested that an element of pure chance was involved in whether or not an acquisition secured creditor had a privileged right of pledge. In this article, the author investigates the circumstances under which the acquisition secured creditor had priority over earlier secured creditors. The priority depended to a great extent on what parties had agreed upon in the contract and from which source the seller was paid. Several texts show how the acquisition secured creditor could protect his interests, for example, by paying the purchase price directly to the seller. It remains unclear, however, how priority competitions between an acquisition secured creditor and other privileged pledges were resolved, as there is no contemporary scholarly consensus on the interpretation of key texts.
VI. Die longi temporis praescriptio in der diokletianischen Reskriptenpraxis (Jan Dirk Harke) (DOI 10.1515/zrgr-2022-0006)
Abstract:
The longi temporis praescriptio in Diocletian’s rescripts. The concept of longi temporis praescriptio, as it appears from the sources, is essentially the work of the lawyers in Diocletian’s chancellery. Taking a comprehensive approach that also extends to usucapio, they establish two firmly defined prerequisites: titulus as the objective element, that is given a technical denomination for the first time, and bona fides, understood as the good faith of the possessor. The praescriptio is thus transformed into an institute of substantive law, which not only corresponds to the replacement of formulary by cognition procedure, but is also in line with the already existing relation to the person of the owner. In this way, Diocletian’s jurists develop the available legal material in a thoroughly innovative manner.
VII. A Slave or a generous benefactor? Legal analysis of 8th-century donations of boys from the Monastery of St. Phoibammon in the Western Thebes (DOI 10.1515/zrgr-2022-0007)
Abstract:
This article discusses the Coptic donations of children from the monastery of St. Phoibammon in Western Thebes. These documents, unparalleled elsewhere, attest the donations of free boys made by their parents to the local monastery. In the first part of this article, previous scholarship on the donations is reviewed. In the second part, the various ways in which parents could surrender their children both in legal practice and statutory law are compared to the donations of boys. Finally, the third part offers a comprehensive analysis of these donations within a wider social and legal context.
VIII. Ius quod necessitas constituit, Senatusconsultum est. Jacques Cujas und die Grundlage der normativen Befugnis des römischen Senates (Salvatore Marino) (DOI 10.1515/zrgr-2022-0008)
Abstract:
Ius quod necessitas constituit, Senatusconsultum est. Jacques Cujas and the foundation of the normative power of the Roman Senate. Jacqes Cujas identifies in his Paratitla, in his Observationes and extensively in the texts of his posthumously collected lectures, necessity to be the source and foundation of the normative power of the Roman Senate. In doing so, he revisited, rectified and refined the achievements of the medieval jurists, he connected literary and legal sources with philological precision and historical awareness, and achieved results, which are also particularly useful to the contemporary historiographical and historical legal reflection. This study attempts to render all these aspects, on the basis of the numerous testimonies in the Opera omnia, showing the context and the implications.
Legum Multitudo: Diskussionen und Perspektiven aus Anlass einer Übersetzung1) (Dario Mantovani) (DOI 10.1515/zrgr-2022-0009)
Abstract:
Legum Multitudo. Discussions and Perspectives on the Occasion of a Translation. On the occasion of the Spanish translation of his study on the leges publicae in Roman private law, the author clarifies some of his own statements which were subsequently misunderstood and criticized, before commenting on parallel developments in this field of research over the last decade, especially on the revaluation of the leges regiae. The new results confirm the importance which the Romans attached to the lex; the role played by other forms of written sources of law also emerges, that taken together with the activity of jurists leads to a more complex and realistic picture of the Roman legal system – without diminishing the importance of jurisprudence.
D. 19,1,23 Iulianus libro 13 digestorum (Wolfgang Ernst) (DOI 10.1515/zrgr-2022-0010)
Abstract:
D. 19,1,23 Iulianus libro 13 digestorum. Read as a contribution to the classical doctrine of id quod interest, D. 19,1,23 Iul. 13 dig. has often puzzled the reader. Julian seems to overcompensate a buyer for no good reason, only to be brusquely corrected by Marcellus. There may be a non-trivial explanation for Julian’s reasoning, especially once the palingenetical context is taken into account.
Zur Verfasserschaft des Edictum Theoderici (Rainer Jakobi) (DOI 10.1515/zrgr-2022-0011)
Abstract:
The readings of the only witness of the Edictum Theoderici, Pithou’s 1579 editio princeps, have often been misreported by modern editors. Unnecessary conjectures and editorial errors have sometimes even eliminated those true readings which give information about the disputed origin and authorship of the Edictum: At least, one law certainly shows the individual hand of Cassiodorus. Further errors in modern editions are corrected in the paper’s appendix.
Römisches Recht und kirchliches Recht. Rechtspluralismus und Multinormativität im merowingischen Frankenreich (Sebastian Scholz) (DOI 10.1515/zrgr-2022-0012)
Abstract:
This article shows how Roman law and ecclesiastical law combined and could lead to a generation of norms that were not normative but practical. The focus lies on the question of how the coexistence or intermixture of Roman and ecclesiastical law played out. What do we know about the processes of norm generation that were conditioned by legal pluralism in the early Middle Ages? Is it sufficient to label these phenomena with the term ‘legal pluralism’, or is the term ‘multinormativity’ more appropriate? This study focuses on the normative enactments on child abandonment in Roman and ecclesiastical law and their adoption in the legal practice of the formulae. In addition, the provision of the 18th canon of the Synod of Mâcon (581/583) on perjury and its connection to Roman law, as well as the inheritance provision of the 12th formula of the second book of the Formulae Marculfi are discussed.
Angebote in Form von Hypomnemata und Vertragsschlussbei der μίσθωσις (Wolfgang Kaiser) (DOI 10.1515/zrgr-2022-0012)
Abstract:
The article examines the various forms of signatures on offers for a μίσθωσις of land with regard to a conclusion of a contract. Reference is made to Peter Herrmann’s thesis (1958), which says that offers in the form of hypomnemata are seen as an empty form from a certain point in time onwards.
Überlegungen zum Vertragsschluss bei einer μίσθωσις über Grundstücke (Wolfgang Kaiser) (DOI 10.1515/zrgr-2022-0013)
Abstract:
The article discusses the question how a μίσθωσις of properties can become binding for the parties according to the greco-egyptian documents. It tries to show that Hans Julius Wolff’s teaching of the „Zweckverfügung“ is not sustainable for the conclusion of a μίσθωσις of properties. Instead of modifying this teaching (Behrend, Herrmann and Kränzlein), which is not indicated by the documents, the μίσθωσις of properties in the greco-egyptian documents can also be seen as a binding contract, and its liability is based on the consensus of the parties.
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