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IUS HONORARIUM
IUS CIVILE
Historical introduction
III century BC
BEFORE
The ius civile
was based on
custom or
legislation and
it applied
exclusively to
Roman citizens.
AFTER
The ius civile was
developed by the
Romans to be
applied both to
themselves and to
foreigners.
The most important jurists who founded the ius civile are:
Publius Mucius,
Brutus &
Manilius
as
Pomponio said.
Pomponio
He treats of components of
the ius civile in terms of
rhetorical distinction between
divisio and partitio and in
terms of the different
technique for the purposes of
the definition of a particular
concept.
Cicero
EXAMPLE
He invoked the image of the limbs of a human body; they are
divisible into head, limbs, trunk, but do not constitute a body
and does not perform the same function if not compounds in
that particular collection. In turn the body cannot exist in his
perfect structural configuration if one of its parts.
LEGES
It does not offer any particular problems with the heading of
leges, that during this period we should consider including of
plebiscites.
The analysis of the procedure for the formation and enactment
of laws not the specific subject of this course, so we simply
remember that the so-called leges plebiscita rogatae and
constitute, after the codification of the XII Tables, the only
normative source general of ius civile, but are in very small
number and govern very limited areas of private law.
SENATORIAL CONSULTS
Major issues can envisage the mention of Senatorial consults,
especially if you want to assign to this same general regulatory
value of pars leges.
It is well known that throughout the period of the Republic the
Senate had no power to legislate in the proper sense, since it was
not within its competence to issue rules with General value
designed to regulate the conduct of all citizens.
The difficulty is overcome easily if one considers instead the overall
size of ius civile, in which the intervention is mediated ' of the
Senate is very frequent, through its advisory powers, extending to
all activities of prosecutors, and that will undoubtedly affect the
same training laws and edicts of the magistrates.
RES IUDICATAE
The speech is more complex in relation to res iudicatae.
If we take into account the fact that the text of Cicero does
not give a list of ' sources of law ' as appropriate procedures to
establish binding rules in the context of sorting, but these are
the components of the ius civile seen in the collection of all
elements which are included in its process of formation, the
problem ceases to be that of the value of ' binding ' of
judgments , to move to the question of the practical impact
that the res iudicatae could have in determining the overall
ius, and what relationship they should be considered with
other factors, such as auctoritas prudentium, mos, aequitas.
Topica
&
Rethorica ad Herennium
Topica
The reference to res iudicatae in the Topica has clearly a
different value from that which you can locate other sources of
speech, in which they are considered in terms of the evidence
inartifciales such as exempla, and reviewing the criteria for
the most effective quote from them before the judge to
influence their decision.
Rethorica ad Herennium
The fact that a judge or a magistrate has previously uttered in a
sense in connection with a similar case can be used to persuade
the judge in front of which we discuss to rule Similarly; to this
end, the citation of the exemplum will be all the more useful and
effective the more similar are the two cases that decided
previously and that still to be decided, the more they will be close
in time, and the more authoritative and prestigious was the
judge, or the Court or the magistrate from which the previous
decision; even more effective will be the mention of a large
number of judgments of the same content, especially if you know
that the opponent does not have the possibility to oppose a
number equal to or greater than the opposite content rulings.
EXAMPLE
The restriction of freedom of establishment in respect of
testamentary heirs, implemented in part through equitable
solutions of the Tribunal of the centumviri and from whose
judgments he derived the rule sui heredes aut instituendi sunt
aut exheredand : in fact in the judgments of the Court of the
centumviri was stated consistently the principle that, where the
son was ' preterite ', that is not mentioned in any way, the will, to
equitable reasons, had to be considered ineffective.
The popular cause curiana, which tells Cicero, created a '
previous' of great importance for the prevalence of an
interpretation time to focus the will of the testator in relation to a
literal application of the words contained in the will.
IUS HONORARIUM
In this regard it should be noted that while the ius civile had
its organic nature and was constructed in a logical way, the
ius honorarium had not organic, because it did not cover the
whole field of private type social relations, and was mostly
inspired by the needs not of logic, but of opportunity or
justice.
PAPINIAN
DEMONSTRATIO
Gai says. 4.40: The demonstratio is the part of the formula,
which [..] because they indicate the question about which
acts: as this part of the formula: "Given that A. Agerio sold a
slave to N. Negidio"; also this: "Given that A. Agerio filed a
slave at N. Negidio".
INTENTIO
Gai says. 4, 41: "The intentio is the part of the formula with
which the actor states his claim: as this part of the formula
"If it appears to the court that no Negidio must give ten
thousand gold to Aulus Agerio" so this "everything N.
Negidio duty is give and take to A. Agerio" ; also this: "If it
appears to the judge that the slave belongs to A. Agerio
under the law of the Quirites".
ADIUDICATIO
Gai says. 4.42: "The adiudicatio is the part of the formula,
with which it allows the judge to award something to
someone of the litigants, as if between joint heirs will act on
the sharing-or pearl division between co-owners of
communion or between close to the settlement of boundaries.
In fact there is no "what is necessary to award, the court
awarded to Tom."
CONDEMNATIO
Gai says. 4.43: "The condemnatio is the part of the formula
with which gives the court the power to condemn and acquit;
as this part of the formula: "Judge condemns N. Negidio ten
thousand gold to A. Agerio".
PAUL
"... quamvis enim jure civil deficiant free, here propter capitis
deminutionem desierunt on heredes them, tamen propter
aequitatem rescindit eorum capitis deminutionem praetor":
EXAMPLE
2
The introduction of the register praetorian, exceptions and
prosecutions in cases where the protection of the contractual
will had been "spoiled" by deceit or violence .
PAUL
ideo autem hanc exceptionem praetor proposuit it when dolus
suus for occasionem iuris civilis contra naturalem aequitatem
prosit
PAPINIAN
... Here aequitate defensionis infringere
actionem potest, doli exceptione tutus est
Papinian