Praetor and the praetorian edict PDF

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Praetorian edicts occurred annually with the new praetor releasing new principles as well as new remedies and defences that the citizens of Rome could use to reinforce their civil law claims and the rules by which he would be guided, during the time of roughly 67BC the praetor become bound by law to follow his own edict. These edicts carried on year after year from the old praetor to the new, leading to a large body of rules which helped to develop the ius honorarium and were a vital part in developing and aiding Roman law. During the late Republic the praetorian edicts were used to form a body of law known as the ius honorarium which the magistrates had given the authority of law. Ius honorarium is a vital part of Roman law and was described by Papinian as aiding, supplementing or correcting the ius civile, which was the main body of law in ancient Rome and was the law of the Roman citizens. Although the praetors did not have legislative competence and lacked legal expertise their edicts did help to develop Roman law and their importance is highlighted through their supplementation of the much of the body of the ius honorarium. Ius civile, the main body of Roman law, had derived from statutes as well as unwritten common law as interpreted by the Roman jurists. The ius honorarium played a vital part in aiding the ius civile which highlights its importance and the importance of the praetorian edicts. The edicts of Praetors gave remedies in cases in which the civil law did not cater to, take for example the granting of supplementary remedies introduced by the Praetorian edict which widened the provisions of the lex aquilia. The power of the Praetor is also highlighted through the fact that he could use edicts to improve or correct the ius civiles, although it did not happen often, if the Praetor decided it was necessary for the Roman citizens he was able to do so. Take for example the fact that under the ius civile it was the rightful heir that would receive the inheritance, however, the Praetor changed this to allow in certain circumstances a claimant to receive inheritance even in preference to the rightful heir. Their ability to correct and alter the civil law of Roman jurisdiction truly proves the weight they carried in law. To conclude, Praetors were indirect law-makers, although often they were not legally skilled they have played a vital part in aiding Roman law. Praetorian edicts played a large part in the making of the ius honorarium, a key body of law in Roman jurisdiction which even improved and aided its main body of law; the ius civile.

During the sixteenth and seventeenth century Scots law had a close contact with the European civilian tradition, influencing its legal system. Throughout this essay it will be discussed whether or not Scots law stood squarely within the European civilian tradition at the time of the sixteenth and seventeenth century or whether national identity in Scotland was taking over during that time. Up until the reformation in the sixteenth century , Canon law (jus canoncium), which was the law laid down by papal pronouncements, it had close influence to Roman law and set out

regulations for Christian organisations as well as being legally binding on the Church courts in Scotland and was an important authority in secular courts. After 1560 once papal authority was rejected, Canon law served as a persuasive authority and could be applied in courts as long as it did not conflict with the reformed doctrine as it was accepted as part of the Scots law. The canon law which applied to Church courts in Scotland was a big part of introducing Roman notions and beliefs into the Scots legal system. The migration of Scottish students abroad to study Roman and canon law also lead to its infiltration into the Scots legal system. Due to the fact that there were no universities in Scotland before the fifteenth century, many migrated to countries such as Italy and France and later the Netherlands bringing back the knowledge they had learned and taking on high office positions, further integrating Roman law into Scots law. Take for example William Elphinstone who had studied Roman law in France and after his return to Scotland became the Bishop of Aberdeen as well as the Chancellor of Scotland. Elphinstone is also believed to have inspired the enactment of the Education Act 1496, the act of Scottish parliament which made it a requirement for landowners to send their eldest son to learn about latin, arts and law. Then in 1532 the The College of Justice legislation, had established a supreme court in Scotland, it consisted of the Lords of Council and the Lords of Session as well as Judges who were trained in both Roman and Cannon law, they often used Roman law to aid them in their decisions in any legal issues that had to be resolved.

The impact that Roman law had on the Scottish legal system could also be found written in literature commenting on the Scots law. Take for example the institutional writer Thomas Craig, his work, the jus feudale was published in 1655 and dealt with feudal law. The influence of Roman law on Scots law is clearly highlighted by Craig, he comments that when there is no solution within Scottish legislation to a certain issue, Roman law will be used to resolve the problem. In the work of Stair, the ‘Institutions of the law of Scotland’ he competes Roman law against the rational natural law, and states that Roman law is not a binding authority in Scotland but rather a source of law that can be used when there is an absence of national law or customs, take for example Stair using Roman law as a way of finding solutions to the law of risk of sale. It is clear that during the seventeenth century, a legal national identity was increasing within the Scots legal system and it seems that Stair agreed with this. George Mackenzie, a Scottish lawyer as well as legal writer, had also commented on Roman law within Scotland. He first published his work the ‘Institutions’ in 1684, where he comments on the relevance of Roman law within the Scots legal system, for example when dealing with underage persons or with legal obligations. He stated that Scots law took primacy but that Roman law was still of key importance. In the seventeenth century, Roman law still had some influence on the way that decisions were made by the Court of Session. Although Roman law was not legally binding it was cited in several cases and had helped to resolve disputes, such as for example in the case of Ballenden v Macmath. The reason as to why Roman law was still being cited in court even though it did not legally bind could be due to the fact that many of those presiding in court and Scottish

advocates were educated and had academic training in Roman law. This highlights how important Roman law still was during the seventeenth century in Scotland, as it was still being used to help settle disputes even when it was no longer binding on the courts. To conclude, the idea that during the sixteenth and seventeenth century Scots law stood squarely within the European civilian tradition was arguably true to an extent. Roman law had a massive influence on Scots law, with individuals studying Roman law abroad and then using their new expertise in Scotland. However, that influence started to decrease slightly after the reformation in the sixteenth century when Canon law was no longer legally binding. The works of many legal writers also highlight that although Roman law was of key importance to Scotland, slowly its own national legal identity started to show with Roman law only being used in parts of which Scots law did not cater to. Items that fell under the category of res nullius, meaning that they did not yet have an owner or had owner that has ceased to exist could be acquired through the mode of acquisition of occupatio. The first taker of such an item would become its owner. Wild animals captured land, sea or air fell under the category of res nullius and would fall under the ownership of the person that caught them due to occupatio. Animals could be classed as either wild (ferae) or tame (mansuetae), tame animals fell under the classification of res mobiles and were subject to normal ownership rules. One could however, possess the ownership of a wild animal if he is in effective control of it, such control being called custodia, yet, the injury of a wild animal without capturing it would not be sufficient enough to be regarded as having ownership of it. A person will be in ownership of a wild animal as long as he has supervision and physical control over it, the moment that the animal escapes from the custody of the person who had caught it and is no longer in sight it regains its freedom and can again be considered as res nullius and fall under the ownership of another individual. Regarding animals that are animus revertendi, meaning ones that have a habit of leaving and returning, the rules are slightly different. Gaius stated that the ownership of these animals was not lost as soon as they were out of sight but rather when their habit of returning had stopped. Animals that fell under this category were for example, bees, pigeons and deer. Just because a wild animal was on your land did not constitute for your ownership of it, capturing a res nullius animal on someone else's land also did not mean that it fell under the ownership of the individual that owned the land. Having rights over a land does not constitute having rights over the animal on it. The animal is not yours until you capture it and have supervision over it and therefore seeing bees on your property does not amount to you having ownership of them, to do so it would be necessary to enclose them in a beehive, however, following the rule of animus revertendi, if they left and failed to return that ownership would be lost. Once a person loses ownership of their animal when they lose sight of them, the animal becomes res nullius once again and the individual cannot be liable for any damages caused by

the beast as they have ceased to be the owner. This was however, before the Edict of the Aediles was introduced which states that those who kept beasts of certain kinds near a highway were responsible for any damage they did. Within Classical Roman law jurisdiction, Specificatio could be described as a mode of acquisition of property, it was the transformation of another person’s items and materials into something completely new. Many similarities exist between Specificatio and Accession meaning that making the distinction between the two could sometimes prove difficult, which is why the requirements for Specificatio must be discussed. A dispute about Specficatio and its definition had occurred between two schools of jurists; the Proculians and Sabinians. The Sabinians believed that the owner of the original material could claim the new item no matter its transformation. Contrary to this, the Proculians argued that once a completely new product was made, the owner was the person who had made it. A compromise was adopted by Justinian to this dispute where the creator of the item would become its owner if and only if the said item could be transformed back into its original form and so the addition of value to the original product was not enough for the creator to become the owner. Take for example a statue made of gold, the ownership of it would belong to the owner of the gold rather than the creator of the statue due to the fact that it could be melted down back into its original form. A test of Nova Species could be applied to determine whether or not the change of an object amounted to Specificatio, the objects could not be merely improved, it was required for the item to change species completely, it had to have its own name and identity. Take the example provided by Buckland that the breaking of an egg was not specification but making an omelet out if it was. Using the Nova Species test highlights the change of this item’s identity, from something raw to something consumable and the change of its name from an egg to an omelet. The writing or printing on a material did not constitute Specificatio but rather fell under the law of Accessio and so the owner was the person who owned the original material and not the creator of the writing, it did not matter if the writing added significant value to the material as had Gaius stated that even if the writing was in gold the finished product still did not belong to the creator, the creator of the writing could only seek compensation for his work but he was not the owner of it, no matter the value of the possible, song, story, poem or speech that had been written. Therefore, writing or printing did not amount to a requirement for Specificatio however, the case was different for paintings. Although Paul had held that paintings should be regarded in the same way as writing, Gaius believed contrary to this and eventually Justinian settled a dispute on whether it belonged to the artist or the owner of the canvas and followed the beliefs of Gaius, deciding that it was the painting and not the canvas that was the principal thing and so the owner was the creator of the art rather than the owner of the original canvas.

It must also be discussed whether or not bonae fidei; good faith was a requirement for the creator to become owner or whether the creator of the new item could become its owner even if he was acting in bad faith. There are passages in the Corpus Juris which would suggest that good faith was a requirement, an example given is one stating that a person whos silver was

stolen to make cups could sue the creator for the cups or the mass of the silver through the use of actio furti or condictio furtiva. These actions would allow for the original owner to receive compensation for the stolen materials. This suggests that good faith may be a requirement for Specificatio as although the silver was completely transformed and given a new name the owner of the original material may be able to claim damages for it. However, there are other arguments which suggest that good faith is not a requirement and that the manufacturer of the new item could gain ownership even if he had acted in bad faith, this is due to the fact that even though the creator who was acting in bad faith could be sued for theft and made to pay damages towards the person who owned the original material, these actions did not mean that the new object would be given back to the original owner, if the owner to whom the materials belonged to used the the action of rei vindicatio he would be able to gain possession of the transformed item however, that is not mentioned as a remedy. So, it seems that although the creator who stole the items may be sued for damages he may still be entitled to the product that he had made. To conclude, specification was a mode of acquisition of property in roman law jurisdiction with similarities to that of accessio however, it had its own requirements. Specificatio was the complete transformation of material into a new product, the product had to have its own new identity and name to be in ownership of the person who created it and as held by Justinian it could not be transformed back to its original form. It was decided that writing did not amount to specificatio but painting did and it seems that acting in good faith was not a necessity of specificatio and that even an individual who was acting in bad faith could gain ownership of the new product he had created. The Mandate (Mandatum), was a contract in Roman Law, it was one of bonae fidei, which meant that it was a contract of good faith. The Negotiorum Gestio was a type of a quasi-contract unlike the Mandate, it was not a consensual contract. There are many similarities between the two, such as for example the fact that in both a person acts on behalf of another individual, just like in mandate, there was a range of matters which the gestor could take care of, they could be of factual or legal nature, it was also important that neither the gestor or the mandatarius acted solely in their own interest. Although there are clear resemblances between the two, the distinctions between them must be noted, some of these differences will be discussed within this essay. The first and most obvious difference between the Mandate contract and the Negotiorum Gestio was that the former is a contract and the latter an obligatory relationship ex lege, there is no mutual consent between two parties within the Negotiorum Gestio. The contract of Mandatum was constituted by an individual, known as the mandatarius, who had promised to do something at the request of the individual known as the mandator without any reward or payment, it is believed it began with requests from one friend to another to help with some sort of legal proceedings, an agreement between them was formed and therefore a contract came into existence. In contrast a Negotiorum Gestio occurred when an individual known as the gestor acted on behalf of another person, known as the principal without their permission, take for example a case of an individual helping an absent neighbour whose property may have been destroyed, the individual chooses to repair it without their neighbours authorization taking on any possible expenses that may result from his actions. In this case there is no agreement between the parties and therefore, there is no contract, there is however a relationship that arises in quasi-contract and is recognised and treated by law as if there was a contract between

the parties involved. So, one of the important distinctions between the two is knowledge, a parties lack of knowledge of what is occurring on his behalf leads to the quasi-contract whereas in a mandate a party has agreed and is aware of the fact that another individual is providing a service on their behalf. Within the Negotiorum Gestio, the gestor had a duty of performance set upon him, he had to complete the task that he undertook, there was no way for the gestor to terminate the quasicontract if he had not finished what he had started. Contrary to this, there were several ways for the mandatarius to be discharged from a mandate contract. For example, through mutual consent, renunciation or if the promise had become impossible to complete. The key thing to note is that there were ways for the mandarius to terminate a contract and he was even himself able to renounce from a contract without any liability as long as he had not yet started the performance of his promise, only facing liability if the mandator was unable to find a similar service elsewhere. There was no such option for the gestor once he decided to undertake a task on another's behalf, even if the death of the person for whom the gestor was acting had occurred he was not discharged from his responsibilities. This was again different for a mandate, the death of either of the parties would mean that the contract would cease to exist and so the individual that had made the promise to act on another’s behalf would be released from his duties if the mandatory had passed, unless the stopping or delay of the performance could be of danger. This highlights the difference between the two contracts, the contract of mandate could be terminated however, even in the case of death of the principal the gestor would not be released from his duties and the obligation had to be completed. A promise in a Mandate was made gratuitously, meaning that payment was not involved if payment did occur the contract would become one of hire. This was different for the quasicontract of Negotiorum Gestio, as the gestor taking on the responsibilities of another done so expecting later recompensation for the expenses he may have acquired. It was the duty of the principal to accept and reimburse the gestor for the actions he had done, the gestor could be reimbursed as long as he had acted in a responsible manner and that his actions had to have been beneficial when done as well as being done in the interest of the principal and not the gestor. The gestor had to have done with the inspection of later being reimbursed if his actions were done as a way of gift or due to feelings of friendship he could not be paid back for his expenses. This shows the difference between the two, the Man...