The Institutes of Justinian is a sixth-century Roman legal textbook, commissioned by Justinian and compiled from earlier jurists, that sets out the elements of law for students. This deck covers its preface, the three precepts of law, the divisions of law, and the rules on slavery, paternal power, marriage, and adoption.
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Chapter 1 · Question
Who did Justinian commission to compose the Institutes, and from what sources?
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Chapter 1 · Answer
Justinian commissioned Tribonian, master and ex-quaestor of the sacred palace, along with the law professors Theophilus and Dorotheus. The Institutes were compiled from the Institutes of ancient jurists, especially Gaius's commentaries on both the Institutes and the common cases, and from many other legal works. The three men submitted the work to Justinian, who read and examined it and gave it the fullest force of his constitutions.
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Introduction4 cards
Who did Justinian commission to compose the Institutes, and from what sources?
Justinian commissioned Tribonian, master and ex-quaestor of the sacred palace, along with the law professors Theophilus and Dorotheus. The Institutes were compiled from the Institutes of ancient jurists, especially Gaius's commentaries on both the Institutes and the common cases, and from many other legal works. The three men submitted the work to Justinian, who read and examined it and gave it the fullest force of his constitutions.
Chapter 1
What advantage does Justinian claim students gain from the new Institutes?
Justinian argues that previously even the foremost students could not read the imperial constitutions until after four years. Now, having received both the beginning and end of their legal teaching from the Emperor's mouth, students can begin studying the constitutions without delay, learning first lessons from imperial learning rather than ancient fables, and receiving nothing useless or incorrect.
Chapter 1
How is the Institutes structured, and what does it cover?
Justinian directed that the Institutes be divided into four books, comprising the first elements of the whole science of law. They briefly state the law previously obtaining as well as law that had fallen into disuse and was restored by imperial aid. They follow the completion of the fifty books of the Digest or Pandects, in which all the earlier law was collected with the aid of Tribonian and other able men.
Chapter 1
What dual ideal does Justinian set out for imperial rule in the preface?
Justinian states that imperial majesty should be armed with laws as well as glorified with arms, so there may be good government in times of war and peace. The ruler of Rome should not only be victorious over enemies but also show himself scrupulously regardful of justice as triumphant over conquered foes. The author presents this as achieved through deep application, forethought, and God's blessing.
Chapter 1
XXVI. Of guardians or curators who are (part 1)4 cards
According to the text, what are the three precepts of law?
The text states the precepts of law are: to live honestly, to injure no one, and to give every man his due. This follows the earlier definition of justice as the set and constant purpose which gives to every man his due. The author presents these as the foundational principles underlying the exposition of Roman law.
Chapter 2
How does the law of nature differ from the law of nations and civil law?
The author defines the law of nature as what nature teaches all animals, not just humans, including marriage and the rearing of children. The law of nations consists of rules prescribed by natural reason for all men and observed by all peoples alike. Civil law, by contrast, is what each state enacts for its own members and is peculiar to itself.
Chapter 2
What is a senatusconsult and why did it come to substitute for statutes?
A senatusconsult is a command and ordinance of the senate. The author explains that when the Roman people had grown so numerous that assembling them to enact statutes became difficult, it seemed right that the senate should be consulted instead of the people. This shows how practical necessity reshaped the sources of Roman law.
Chapter 2
How does the text define slavery and its origin?
The author defines slavery as an institution of the law of nations, against nature, subjecting one man to the dominion of another. He notes that by natural law all men were born free, and slavery arose through the law of nations, for instance by capture in war. The name 'slave' derives from generals ordering captives preserved and sold rather than killed.
Chapter 2
XXVI. Of guardians or curators who are (part 2)4 cards
What distinguishes Roman paternal power from other nations' authority over children?
The chapter states that the power of Roman citizens over their children is peculiar to Roman citizens and is found in no other nation. This power extends not only to children begotten in lawful wedlock but also to descendants through sons, such as grandchildren, while offspring of a daughter remain under their own father's power.
Chapter 3
What marriages are absolutely prohibited between ascendants and descendants, including adoptive ties?
Persons related as ascendant and descendant cannot lawfully intermarry—father and daughter, grandfather and granddaughter, mother and son, grandmother and grandson, and so on indefinitely. The prohibition is so absolute that even adoption creates it, and dissolving the adoption by emancipation does not remove the bar, so an adoptive daughter cannot be taken as wife even after emancipation.
Chapter 3
What conditions govern adoption by rescript of a child under puberty?
Adrogation of a pupil by imperial rescript is permitted only after cause is shown and the motive and expediency for the pupil are examined. The adrogator must give security to a public agent that if the pupil dies before puberty he will return the property to those who would have succeeded absent adoption. He may not emancipate without inquiry or without restoring property, and disinheritance or unjust emancipation entitles the pupil to a fourth of the adrogator's property.
Chapter 3
How does the chapter distinguish adoption by rescript from adoption before a magistrate?
Adoption by rescript of the Emperor is the mode for adopting independent persons, called adrogation. Adoption before a magistrate applies to persons already subject to an ascendant's power, whether a descendant in the first degree or remoter. A further peculiarity of adrogation by rescript is that the adrogated person's own children, as well as himself, fall under the adrogator's power as grandchildren.
Chapter 3
XXVI. Of guardians or curators who are (part 3)4 cards
Who may be appointed a testamentary guardian according to Title XIV?
Persons in the power of others may be appointed testamentary guardians, as may one's own slave, whose freedom is presumed tacitly conferred by the appointment. A stranger's slave may be appointed only with the words 'when he shall be free.' Appointment of the testator's own slave in that conditional form is void from the beginning, and so is appointment of another's slave without qualification.
Chapter 4
How does the chapter distinguish agnates from cognates?
Agnates are related through males, through male ascendants: a brother by the same father, a brother's son, a father's brother and his sons. Persons related only through females are cognates, not agnates. So the son of your father's sister is your cognate, not your agnate, because children belong to their father's family, not their mother's.
Chapter 4
What are the three orders of loss of status?
The greatest loss is simultaneous loss of citizenship and freedom, as with 'slaves of punishment,' freedmen condemned for ingratitude, and those who let themselves be sold to share the price. Minor or intermediate loss is loss of citizenship without loss of liberty, as by interdiction of fire and water or deportation to an island. The least loss occurs when citizenship and freedom remain but domestic position changes, as by adrogation or emancipation.
Chapter 4
When is a guardian's authority required for a pupil's act?
Authority is not needed for acts that simply improve the pupil's position, such as stipulating for delivery of property, but is required where he would be bound, as in sale, hire, agency, and deposit. It is also required to enter on an inheritance, demand possession of goods, or accept a trust inheritance. Authority must be given presently; later ratification or a letter has no effect.
Chapter 4
XXVI. Of guardians or curators who are (part 4)4 cards
What excuse from guardianship applies to those who die in war?
The chapter states an exception where guardians have died in war: it is agreed this applies only where they fell on the field of battle, because those who died for their country are deemed to live eternally in fame. This is framed as an exception to the rules on excuses from serving as guardian or curator.
Chapter 5
What time limits apply to alleging grounds of excuse from guardianship?
Those seeking exemption must allege their grounds within fifty days after hearing of their appointment, whatever its form or kind of guardianship, if within a hundred miles of the place of appointment. Those farther away get a day per twenty miles plus thirty days, but per Scaevola the total must never be less than fifty days.
Chapter 5
Who may bring an accusation of suspected guardianship, and who cannot?
The action is public, open to all; by a rescript of Severus and Antoninus even women may bring it, but only those with a close tie of affection, such as a mother, nurse, grandmother, or sister. Persons below puberty cannot accuse their guardians on suspicion, but those who have reached puberty may accuse their curators after taking advice of nearest relations.
Chapter 5
What is the consequence of removal on suspicion for fraud versus negligence?
A person removed from office on suspicion incurs infamy if the offence was fraud, but not if it was merely negligence. Guardians or curators guilty of fraud in administration must be removed even if they offer security, since security does not change evil intent but only gives more time to injure the pupil's property.
Chapter 5
XXV. Of codicils (part 1)1 cards
Under natural law, what things are common to all, and what limits access to the seashore?
The air, running water, the sea, and consequently the seashore are common to all by natural law. No one is forbidden access to the seashore, provided he abstains from injury to houses, monuments, and buildings generally, since these are not, like the sea itself, subject to the law of nations. The seashore extends to the limit of the highest tide in time of storm or winter.
Chapter 6
XXV. Of codicils (part 2)4 cards
Under Hadrian, how is a treasure found by accident in another's land divided?
The Emperor Hadrian, following natural equity, gave half to the finder and half to the owner of the soil, provided the finder found it by accident and not by specially searching for it. If found in the finder's own land, or by accident in sacred or religious soil, he took the whole. The same half-and-half principle applied to land of the Emperor, the treasury, or the State.
Chapter 7
When does a purchaser of goods become owner if the price is unpaid?
When a thing is sold and delivered, it does not become the purchaser's property until he has paid the price or satisfied the vendor otherwise, such as by another person accepting liability or by pledge. This rule, also in the Twelve Tables, is said to be a dictate of the law of all nations. But if the vendor gives the purchaser credit, the goods belong to him at once.
Chapter 7
What does 'fruits' include for animals, and does it include slave offspring?
For animals, 'fruits' comprises their young as well as milk, hair, and wool; thus lambs, kids, calves, and foals belong at once by natural law to the fructuary. But the term does not include the offspring of a female slave, which belongs to her master, since it seemed absurd to reckon human beings as fruits when all other fruits exist for their sake.
Chapter 7
How may a usufruct be extinguished, and what happens then?
A usufruct determines by the usufructuary's death, by either of the greater kinds of loss of status, by improper exercise, by nonexercise during the time fixed by law, by surrender to the owner (transfer to a third person being inoperative), and by consolidation when the fructuary becomes owner. A usufruct of a house ends if it burns down or falls, and no usufruct of the site can then be claimed. On determination it reverts to the ownership.
Chapter 7
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Under Justinian's constitution, how is property a child acquires from non-paternal sources treated?
The author states that by a general constitution the older rule, under which a child in power acquired everything for the parent, was improved as being cruel. Now whatever a child gains through property the father lets him control goes to the father, but property from any other source belongs to the child, though the father holds a usufruct in it.
Chapter 8
What did Justinian change about gifts before marriage?
Originally a gift before marriage was conditional on the marriage taking place and could never be made after it. Justin allowed increases during marriage where the dowry was increased. Justinian permitted such gifts to be first made after the marriage and renamed them gifts 'on account of' marriage, assimilating them to dowries.
Chapter 8
When can a donor revoke a fully executed gift between the living?
Gifts between the living, once complete, cannot be revoked at pleasure. The author notes, however, that by his constitution donors may revoke even completely executed gifts under certain circumstances, but only on proof of ingratitude by the recipient, the aim being to protect givers from injury or loss at the hands of those they benefited.
Chapter 8
How did Justinian reform acquisition by accrual when a joint owner manumitted a shared slave?
Previously, if one joint owner alone freed a shared slave, his share was lost and accrued to the other owner, cheating the slave of liberty while the harsher master gained. Justinian suppressed this, providing that the slave gains freedom, the manumitter keeps the benefit of his kindness, and the other owner receives a money equivalent proportionate to his interest.
Chapter 8
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What three sources does Justinian say the present law of testaments derives from?
The author states the present law of testaments comes from three sources: the civil law, which requires the witnesses and their continuous presence through execution; imperial constitutions, which require the testator and witnesses to sign the document; and the praetor's edict, which fixes the exact number of witnesses and requires them to seal the will.
Chapter 9
Who is disqualified from witnessing a testament under this chapter?
Women, persons below puberty, slaves, lunatics, the dumb or deaf, and those interdicted from managing their property cannot witness. Also barred are persons in the testator's power, and the heir or anyone connected to him by power, since the author argues the heir now stands as the old purchaser of the family and cannot witness in his own behalf.
Chapter 9
When do soldiers' wills enjoy relaxed formalities, and for how long after discharge?
Soldiers may make a binding will in any mode, written or oral, only while on actual service in camp. A testament executed in camp without formalities remains valid for one year after the testator's discharge; veterans and soldiers away from camp must observe the ordinary forms. The author notes the 'actual service' limit is a new, wise rule of the constitution.
Chapter 9
How does Trajan limit the privilege of soldiers' informal wills?
In his rescript to Statilius Severus, Trajan held the privilege applies only once it is proven a will was actually made. A soldier must have declared his heir before witnesses gathered expressly for that purpose; casual remarks like 'I make you my heir' do not amount to a testament, since otherwise witnesses could be procured after death to invent the deceased's wishes.
Chapter 9
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How does a father's silent pretermission of his children differ from a mother's?
By imperial constitutions, a father who knows he has children but passes over them in silence is treated as if he had specially disinherited them. A mother or maternal grandfather is not bound to institute children or grandchildren; their silence has the same effect as actual disinherison by a father, and omitted children have another remedy explained later.
Chapter 10
What happens when a slave is instituted heir by his own master?
If the slave remains a slave until the master's decease, he becomes both free and a necessary heir by the will. If the master manumits him during his lifetime, the slave may choose whether to accept, since he was not made free by the testament. If alienated, he needs his new master's order to accept.
Chapter 10
How is an inheritance divided when some heirs lack specified shares?
If no shares are specified, heirs divide equally. An heir left without an express share takes whatever fraction of the as remains undisposed; two or more such heirs split it equally. If the whole as is assigned to others, the shareless heir takes half, the rest divide the other half by their shares, regardless of his position in the institution.
Chapter 10
What is pupillary substitution and why is it allowed?
A testator may substitute an heir for children below puberty in his power, so the substitute takes if the child fails to inherit, or if the child inherits and then dies before puberty, becoming the child's heir. Customary law permits this because children are too young to make wills, so parents may make them for them.
Chapter 10
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When can children impeach a parent's will as unduteous?
Children wrongfully disinherited or passed over may bring the action, pretexting that the testator was of unsound mind, though the real point is that the will bears no mark of parental affection; a truly insane testator's will is simply void. Per the constitution, they may bring it only if absolutely nothing was left them. If even a small part or a single thing is left, the will stands, but the heir must make up the gift to a fourth of the intestate share.
Chapter 11
What are the three kinds of heirs, and what defines a necessary heir?
Heirs are necessary, family heirs and necessary, or external. A necessary heir is a slave of the testator instituted as heir; willing or unwilling, he becomes free and necessary heir immediately on the testator's decease. This is commonly done when the estate is embarrassed, so the heir rather than the testator may be insolvent and the creditors sell his property. His later acquisitions, however, are for his own benefit and never liable to a second sale.
Chapter 11
What does testamentary capacity mean for external heirs, and at which times is it required?
External heirs must have testamentary capacity at three points: the making of the will, the testator's decease, and acceptance of the inheritance (especially this last). Loss of status between the will and the decease or satisfaction of a condition does not prejudice the heir. Testamentary capacity means capacity to take for oneself or for a father or master, not merely to make a will, so lunatics, deaf persons, afterborn children, infants, children in power, and others' slaves may have it.
Chapter 11
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Under Justinian's law, when is a legacy given before an heir is appointed valid?
Formerly such a legacy was void, because a will derives its operation from the appointment of an heir, which is deemed the beginning and foundation of the whole testament; for the same reason a slave could not be enfranchised before an heir was appointed. The author notes that even the old lawyers disapproved of sacrificing the testator's intentions by too strictly following the order of the writing, and Justinian's constitution permits a legacy, and much more freedom, to be given before the appointment of an heir or in the middle of several appointments.
Chapter 12
What did Julian hold about a legacy of a flock later reduced to one sheep?
Julian held that the single survivor can be claimed, and that a legacy of a flock comprises sheep added to it after the making of the will, a flock being one aggregate composed of distinct members, just as a house is one aggregate composed of distinct stones built together. Accordingly, if the legacy consists of a house, pillars or marbles added after the making of the will pass under the bequest.
Chapter 12
How did the rules on legacies to uncertain persons change under Justinian?
Formerly legacies and fiduciary bequests to uncertain persons were not allowed, and even soldiers could not benefit them, as Hadrian decided by rescript; an uncertain person was one of whom the testator had no certain conception, though a legacy to an uncertain member of a certain class was valid. Imperial constitutions provided that such legacies paid by mistake could not be recovered back. Justinian's constitution amended these rules for legacies, fiduciary bequests and inheritances, but still maintains that an uncertain person cannot be appointed guardian.
Chapter 12
Does a mistake in the legatee's name or the thing's description invalidate a legacy?
No. If the testator makes a mistake in any of the names of the legatee, the legacy is valid provided there is no doubt as to the person intended, and the same rule applies to heirs, since names are used only to distinguish persons. Likewise an erroneous description of the thing bequeathed does not invalidate it: a legacy of 'Stichus my born slave' is good if it is clear who is meant, even if he was purchased, and so too if the testator names the wrong seller.
Chapter 12
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Who first introduced codicils, and under what emperor were they validated?
Lucius Lentulus, who was also the originator of trusts, first introduced codicils while dying in Africa under Augustus. He executed codicils confirmed by his will, begging Augustus to fulfill a trust; when the emperor complied, others followed the precedent. Augustus consulted jurists including Trebatius, who recommended admitting the practice as convenient and necessary to citizens.
Chapter 13
Why did Trebatius recommend that codicils be legally admitted?
Trebatius recommended their admission, remarking how convenient and even necessary the practice was to citizens, owing to the length of journeys taken in early days, during which a man might often be able to make codicils when he could not make a will. After Labeo made codicils, nobody doubted their complete validity.
Chapter 13
What did the SC. Pegasianum provide when an instituted heir refused to accept?
The SC. Pegasianum provided that, on the petition of the person to whom the heir is requested to transfer, the praetor shall order the heir to accept and transfer the inheritance. The transferee is then as capable of suing and being sued as a transferee under the SC. Trebellianum, and no stipulations are necessary because both senatusconsults operate concurrently.
Chapter 13
How did Justinian change the rules on trust inheritances?
Justinian resolved to repeal the SC. Pegasianum as the later enactment and give exclusive authority to the SC. Trebellianum, under which all trust inheritances are transferred whether the heir gets a fourth, more, less, or nothing. The heir may retain or recover a fourth, and the leading provision of the SC. Pegasianum compelling an unwilling heir to accept was transferred to the SC. Trebellianum.
Chapter 13
BOOK III. (part 1)3 cards
Who are 'family heirs' under intestate succession?
Family heirs are those in the deceased's power at death, such as a son, daughter, or grandchild by a son, whether natural or adoptive. A grandchild is not a family heir if the preceding person is still in the parent's power; posthumous children who would have been in his power also qualify. Family heirs succeed even if ignorant of their title or insane.
Chapter 14
How is the inheritance divided among grandchildren representing their fathers?
Grandchildren and greatgrandchildren represent their deceased father and take together with the surviving son or daughter; the nearer degree does not exclude the more remote. The estate is divided by number of stems, not individuals: one son takes half, and grandchildren by another son share the other half, however many they are.
Chapter 14
What did Justinian's constitution change for sons given in adoption?
The author states that Justinian corrected the old hardship where adopted sons lost rights to both natural and adoptive parents. The constitution enacts that a son given in adoption keeps his rights as if he had remained in his natural father's power, except he may succeed the adoptive father on intestacy. If the adoptive father makes a will, the son gets nothing, though adoption by natural ascendants and adrogation keep the older law.
Chapter 14
BOOK III. (part 2)4 cards
Under the SC. Tertullianum, what conditions entitled a mother to succeed to her intestate children?
The SC. Tertullianum, enacted under Hadrian, gave a freeborn woman with three children, or a freedwoman with four, the right to succeed to her intestate children's goods, even if she was under paternal power—though then she could not accept without the direction of the person in whose power she was. It did not extend to grandmothers. The author notes Justinian later abolished the child-count requirement.
Chapter 15
How did Justinian reform a mother's succession rights compared to earlier constitutions?
The author argues earlier constitutions were inconsistent toward mothers, sometimes deducting a third for others. By his constitution Justinian preferred the mother to all other statutory heirs and gave her the entire succession of her sons, except that brothers and sisters of the deceased share: with sisters only, the mother takes half; with a brother or brothers, the inheritance is divided equally among mother, brothers, and sisters.
Chapter 15
How does the praetor's cognate succession differ from agnatic succession in degree limits?
An agnate may claim the inheritance even ten degrees removed, under the Twelve Tables and the Edict promising possession to statutory heirs. But on mere natural kinship the praetor promises possession only to cognates within the sixth degree, the sole seventh-degree exception being children of a second cousin of the deceased.
Chapter 15
How are degrees of cognation counted, and what is the nearest possible collateral degree?
Degrees are counted upwards (parents), downwards (children), or collaterally. In the ascending and descending lines the nearest cognate may be in the first degree; in the collateral line no one is nearer than the second, which covers brothers and sisters. First degree: father, mother, son, daughter. Second: grandparents, grandchildren, siblings. Third: great-grandparents, great-grandchildren, nephews, nieces, uncles, aunts.
Chapter 15
BOOK III. (part 3)4 cards
Under Justinian's constitution, what share does a patron receive against a wealthy freedman's will?
If a freedman worth more than a hundred aurei dies leaving no children, or disinherits or passes them over, the patron may take possession against the will to one-third of the estate, not the old one-half. If the will leaves the patron less than a third, it is made up to that amount, and the third is free from all charges, which fall instead on the patron's coheirs.
Chapter 16
How did the lex Papia Poppaea change patrons' rights over freedmen's estates?
The lex Papia Poppaea gave patrons a share in the estate of a freedman worth a hundred thousand sesterces or more who left fewer than three children, whether he died testate or intestate. The patron took a portion equal to one child: half if one child survived, a third if two, and was excluded entirely if three children survived.
Chapter 16
What did the SC. Largianum and Trajan's edict provide regarding Latini Iuniani?
Under the lex Iunia, manumitters kept the property of Latini Iuniani, who lost their liberty at death. The SC. Largianum then provided that the manumitter's children, unless expressly disinherited, be preferred to external heirs in succession to a Latin's goods. Trajan's edict provided that a Latin who obtained citizenship by imperial favour without the patron's knowledge should live a citizen but die a Latin.
Chapter 16
What time limits did the praetor set for applying for possession of goods, and why?
The praetor allowed children and parents, adoptive as well as natural, one year to apply, and all other persons one hundred days. His aims were to save the estate's creditors from delay in their suits and give them a proper defendant, and to make it less easy for claimants to seize the deceased's property as in bankruptcy, where they consulted only their own advantage.
Chapter 16
BOOK III. (part 4)4 cards
How does Justinian classify obligations by their source?
The chapter divides obligations into four classes: contractual, quasi-contractual, delictal, and quasi-delictal. Contractual obligations further fall into four species, since contract is concluded either by delivery, by a form of words, by writing, or by consent. Separately, obligations are also divided into civil (established by statute or sanctioned by civil law) and praetorian (established by the praetor's jurisdiction, also called honorary).
Chapter 17
What distinguishes a loan for consumption (mutuum) from a loan for use?
In a loan for consumption the borrower receives ownership of things estimated by weight, number, or measure, and must return things of the same kind and quality, not the identical items; he remains bound even if the goods are lost by fire, shipwreck, or thieves. In a loan for use, ownership does not pass, the borrower must restore the same thing, and he is not liable for accident beyond his control absent fault. A loan for use must be gratuitous.
Chapter 17
What standard of care applies to a depositary for custody?
The depositary is bound to restore the identical thing deposited, but is liable only where it is lost through some positive act of commission on his part. He is not liable for carelessness, inattention, or negligence. The chapter reasons that one who entrusts property to a careless friend has no one to blame but himself for his want of caution.
Chapter 17
When does a stipulation for payment on a fixed future day become actionable?
An immediate debt is created, but it cannot be sued upon until the day fixed for payment arrives. Even on that very day an action cannot be brought, because the debtor ought to have the whole day allowed for payment; unless the whole day promised has passed, it cannot be certain that default has been made. A stipulation to pay 'today at Carthage' when made at Rome is void as physically impossible.
Chapter 17
BOOK III. (part 5)4 cards
When is a sale complete under Justinian's rules?
The author states that purchase and sale is complete as soon as the price is agreed, even before the price or any earnest is paid, since earnest merely evidences completion. For unwritten sales this rule stands unchanged. But by imperial constitution, a sale in writing is not binding unless written by the parties themselves, or signed by them if written by another, or executed before a notary.
Chapter 18
Can a stipulation benefit a third person other than the stipulator?
No one can validly stipulate for performance to someone other than himself, because the point of stipulation is to acquire a benefit for oneself, and a stipulator gains nothing if conveyance goes to a third party. To achieve this, one should stipulate a penalty payable to oneself on default, which makes the arrangement actionable. A stipulation is valid, however, where the promisor has his own interest, such as a guardian taking security from a co-guardian.
Chapter 18
What is the rule on impossible and preposterous conditions in stipulations?
An impossible condition, such as touching the sky with one's finger, cannot be fulfilled and voids the stipulation. But a negative form, promising if one does not touch the sky, is treated as unconditional and immediately actionable. A formerly void 'preposterous' stipulation, putting the later event first, was upheld by Leo for dowries, and the author extends full validity to such stipulations in every case.
Chapter 18
How are multiple fidejussors liable for the same obligation?
Each surety is liable for the whole amount, and the creditor may sue whichever he chooses for the whole. But by Hadrian's letter the creditor may be compelled to sue only for an aliquot share based on the number of solvent sureties at the start of the action, so insolvency increases the others' shares. A surety who pays everything alone bears the loss, having failed to invoke Hadrian's letter.
Chapter 18
BOOK III. (part 6)4 cards
Under Justinian, what contract arises when a man gives clothes to a fuller with hire left to later agreement?
No contract of hire is properly concluded, because the amount of hire was not fixed at the time but left to subsequent agreement between the parties. Instead, an action is given on the circumstances, as amounting to an innominate contract. The same rule applies to hire as to a sale where the price is left to be fixed by a third person.
Chapter 19
What did the statute of Zeno decide about emphyteusis, and how are risks allocated under it?
Zeno determined that emphyteusis is of a peculiar nature, not included under either hire or sale, but resting on the terms of the agreement in each case. Express terms bind as if inherent in the contract. If the parties did not agree at whose risk the land should be, total destruction falls on the owner and merely partial injury on the tenant. Justinian adopted these rules.
Chapter 19
Under Justinian, when a goldsmith makes rings from his own gold for a fixed price, what contract is it?
It is settled that there is only a purchase and sale, though Cassius had said the material was bought and sold and the labour let and hired. If, however, Titius provided the gold himself and agreed to pay the goldsmith for his work, the contract is clearly a letting and hiring.
Chapter 19
How did Servius Sulpicius's view on unequal partnership shares prevail over Quintus Mucius?
Mucius held that an arrangement giving one partner two-thirds of profit but only one-third of loss was contrary to the nature of partnership and invalid. Servius, whose opinion prevailed, disagreed, because a partner's services are often so valuable that it is just to admit him on more favourable terms. It is now admitted a partner may take profits and bear no loss, with net profit struck by balance.
Chapter 19
BOOK III. (part 7)4 cards
Under Justinian's constitution, when does duplication of damages on denial apply to legacies?
The author explains that the older rule applied duplication of damages on denial only to legacies of specific sums of money given by condemnation. By his constitution, which assimilated legacies and trust bequests, duplication of damages on denial became an incident of all actions for recovery, but only where the legatee or beneficiary is a church or other holy place honoured for religion and piety. Such legacies, even if paid when not due, cannot be reclaimed.
Chapter 20
What does a slave jointly owned acquire, and for whom?
A slave jointly owned acquires for all his owners in proportion to their property in him. The exception is where he names one owner exclusively in a stipulation or in delivery of property to himself, in which case he acquires for that one alone, as in 'do you promise to convey to Titius, my master?' If only one joint owner directed the stipulation, the author says it is now settled by imperial decision that the slave acquires for that owner only.
Chapter 20
What is acceptilation, and which obligations does it discharge?
Acceptilation is an acknowledgement of fictitious performance, extinguishing an obligation: the debtor asks whether the creditor has received what was promised, and the creditor replies that he has. It may be made in Greek if the form matches the Latin. The author says it discharges only obligations arising from verbal contract, since where words bind, words may loose; debts from other causes must first be transformed into stipulation form, then released. Partial acceptilation is allowed.
Chapter 20
When does novation extinguish the prior obligation under Justinian's constitution?
Novation occurs when a new obligation replaces the old, as when you owe Seius and he stipulates payment from Titius. The author notes that sometimes the first obligation is avoided even if the second fails, as where a pupil without guardian's authority promises. But by his constitution, no novation takes place unless the parties expressly state their intention to extinguish the prior obligation; otherwise the first subsists and the second is added, leaving two independent obligations.
Chapter 20
BOOK IV. (part 1)3 cards
When does using a borrowed thing become theft?
Using a thing lent for a different purpose than the lender contemplated is theft only if the borrower knows it is contrary to the owner's will and that the owner would refuse permission. If the borrower believes the owner would consent, it is not theft, since there is no theft without unlawful intention. The author notes it is also not theft if the owner actually consents though the borrower thinks otherwise.
Chapter 21
Who may bring the action on theft?
Any person interested in the security of the property may sue, even if not the owner; the owner cannot sue unless he suffers damage from the loss. Thus a pawnee may sue when a pawn is stolen, and a fuller or tailor may sue for stolen clothes if solvent enough to indemnify the owner. A depositary, answerable only for fraud, has no interest and cannot sue.
Chapter 21
What is the praetor's remedy for robbery and its measure?
Robbery is chargeable as theft, but the praetor introduced the action for robbery (rapine with violence). It may be brought within a year for four times the value, and after a year for simple damages, and lies even when only a single thing of the slightest value is taken with violence. The fourfold includes the thing or its value, so the penalty is in fact three times the value.
Chapter 21
BOOK IV. (part 2)4 cards
Under the lex Aquilia, how is damages assessed for a slave killed who was worth more within the year?
The statute's words 'whatever was of the highest value thereof within the year' mean the defendant pays not merely the slave's value at death, but his highest value within that year. This makes the action penal, since the sum may far exceed the actual loss, and consequently the right of action does not pass against the heir, though it would have if damages never exceeded the loss sustained.
Chapter 22
Under the third chapter of the lex Aquilia, what period fixes the chargeable value of the thing damaged?
Under this chapter it is not the highest value within a year but the value within the last thirty days that is chargeable on the author of the mischief. Although the statute does not expressly say 'highest value,' Sabinus rightly held damages must be assessed as if those words occurred here too, the Roman people having thought it sufficient to use them only in the first chapter.
Chapter 22
What acts constitute an injury or outrage under Title IV?
An outrage is inflicted not only by striking with fist, stick, or whip, but also by vituperation to collect a crowd, taking a man's effects claiming he owed one, writing or publishing defamatory prose or verse, constantly following a matron or child below puberty, or attempting anyone's chastity, and by innumerable other acts.
Chapter 22
What is a quasi-delictal obligation, and what examples does the chapter give?
The obligation of a judge who delivers an unjust or partial decision is not properly delictal nor from contract, but quasi-delictal, with a pecuniary penalty at the judge's discretion. Another case is a person from whose residence anything is thrown or poured out injuring another, or who keeps something hung over a public way; liability is quasi-delictal because it usually arises through another's fault, such as a slave or freedman.
Chapter 22
BOOK IV. (part 3)4 cards
What distinguishes a pledge from a hypothec in Roman law?
The term 'pledge' is properly used only where possession of the property is delivered to the creditor, especially if the property is movable. A hypothec is strictly a right created by mere agreement without delivery of possession. However, whenever debtor and creditor agree that certain property shall be security for a debt, the transaction is called pledge or hypothec indifferently, and the quasi-Servian action treats them alike.
Chapter 23
How do purely reparative, purely penal, and mixed actions differ?
All real actions are purely reparative. Personal actions from contract are nearly all reparative, though deposit in cases of riot, fire, building collapse, or shipwreck allows double damages against the bailee in person, making it mixed. Actions from delict are sometimes purely penal, like theft, and sometimes mixed, like robbery, where three-fourths is penalty and one-fourth compensation.
Chapter 23
What is the difference between equitable actions and actions of strict law?
In equitable actions the judge may assess on good and fair grounds the amount due, taking counterclaims into account and condemning only the balance. Examples include sale, hire, agency, deposit, partnership, guardianship, loan for use, mortgage, and division actions. In strict-law actions counterclaims were permitted since a rescript of Marcus, and the author notes a constitution widened setoff, except in the action on deposit.
Chapter 23
What are the maximum damages recoverable, and which actions give quadruple damages?
Damages may be once, twice, three, or four times the value of the plaintiff's interest; no action allows more than fourfold. Quadruple damages are recoverable by the action on theft detected in the commission, the action on intimidation, and the action for money given to induce a vexatious suit or to desist from one. A constitution also allows a statutory condiction for fourfold damages against officers exacting excess fees.
Chapter 23
BOOK IV. (part 4)4 cards
Under Justinian's rules, what happens if a plaintiff claims less than owed or demands the wrong thing?
The plaintiff runs no risk. By the constitution of Zeno, if he claims less than due, the judge may condemn the defendant for the residue in the same action. If he demands the wrong thing, he may correct the mistake in the same action—for example, claiming slave Eros when entitled to Stichus, or alleging a conveyance under a will when his right rests on a stipulation.
Chapter 24
When does a master's liability for a slave's contract exceed the peculium?
When the slave contracted at the master's bidding, the master is liable for the whole amount. Likewise under the actio exercitoria for a slave appointed shipmaster, and the actio institoria for a slave set over a shop or business. Also, if any of the borrowed money was converted to the master's uses, he is liable for that portion in full, regardless of the peculium.
Chapter 24
What is the senatusconsult of Macedo and why was it enacted?
It prohibited loans of money to children in power and denied the lender any action—against the child, whether still in power or emancipated, and against the parent, whether retaining or emancipating him. The Senate acted because persons in power, burdened by loans squandered in profligacy, often plotted against their parents' lives.
Chapter 24
What is a noxal action and what option does the condemned master have?
When a slave commits a delict—theft, robbery, unlawful damages, or outrage—a noxal action lies against the master. If condemned, the master may either pay the damages awarded or surrender the slave in satisfaction of the injury, permanently transferring ownership. The principle is that a master should suffer no detriment beyond losing the slave's body.
Chapter 24
BOOK IV. (part 5)4 cards
Under Justinian, what must an attorney for a plaintiff do if his appointment is not enrolled or confirmed in court?
The attorney must give security for ratification of his proceedings by his principal. The same rule applies if a guardian, curator, or other person managing another's affairs begins an action through an attorney. The chapter contrasts this with the defendant's position, where the defendant may appoint an attorney either personally in court with solemn stipulations or out of court by giving security as surety for the attorney.
Chapter 25
What distinction does the chapter draw between perpetual and temporary exceptions?
Perpetual or peremptory exceptions are obstructions of unlimited duration that practically destroy the plaintiff's ground of action, such as fraud, intimidation, and agreement never to sue. Temporary or dilatory exceptions merely postpone the plaintiff's right to sue for a while, for example an agreement not to sue for five years, after which the plaintiff can pursue the remedy. The chapter notes Justinian does not approve the older harsh rules.
Chapter 25
According to the chapter, can penal actions for delict be brought against an heir?
No. The rule is absolute that for delict—theft, robbery, outrage, or unlawful damage—no penal action can be brought against the heir. However, the heir of the person wronged may bring these actions, except in outrage and similar cases. Sometimes even a contract action cannot be brought against the heir, where the testator committed fraud and the heir did not profit. If a penal action was actually commenced by the original parties, it is transmitted to the heirs of each.
Chapter 25
What is a replication, and how does the chapter illustrate it?
A replication is the plaintiff's allegation used when an exception that seems just to the defendant is unjust to the plaintiff, parrying the exception's force. Example: a creditor agreed not to sue, then later agreed he might; if the debtor pleads the no-sue agreement, the creditor may plead a replication based on the later agreement. Further stages are called rejoinder and surrejoinder.
Chapter 25
BOOK IV. (part 6)4 cards
Under Justinian's constitution, what must a defendant do before stating a defence?
The defendant must first take an oath, swearing that he resists the plaintiff's claim because he believes his cause is good. He is not permitted even to state his defence until he swears this. The chapter presents the oath, along with money fines and fear of infamy, as among the best means of restraining unjustifiable litigation.
Chapter 26
What replaced the obsolete action for dishonest litigation against a plaintiff?
The old action penalized a plaintiff in a tenth part of the value claimed, but the chapter says the penalty was never actually exacted. Its place was taken by the plaintiff's oath that the action is commenced in good faith, and by the rule that a plaintiff suing without just cause must compensate his opponent for all losses and pay the costs of the action.
Chapter 26
Which actions carry infamy on condemnation, and does compounding also bring infamy?
Infamy follows condemnation in actions on theft, robbery, outrage, fraud, guardianship, agency, and deposit (if direct, not contrary), and in the action on partnership, which is always direct. In actions on theft, robbery, outrage, and fraud, it is infamous not only to be condemned but also to compound, since obligation based on delict differs widely from obligation based on contract.
Chapter 26
What is the penalty under the lex Pompeia on parricide?
The criminal is sewn up in a sack with a dog, a cock, a viper, and an ape, and thrown into the sea or a river according to the locality. The chapter explains this denies the criminal air while alive and interment in the earth when dead. Instigators or accomplices, even strangers, suffer the same penalty; killers of kin whose murder is not parricide fall under the lex Cornelia on assassination.
Chapter 26
Source and licence
Text used: Project Gutenberg eBook #5983 (Public domain in the United States). Generated from the full text; cards paraphrase the source.
Version: Public domain edition. Retrieved 2026-11-02. Cards reviewed 2026-11-02.
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