Adjective action

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The adjectic complaints ("transferring" the complaint to the person in charge; actiones adiecticiae qualitatis ) were an application in Roman law for the settlement of obligations with third parties. They were used to settle disputes arising from obligations that a person subjected to violence had entered into and for which the person in charge ( dominus ) was personally and directly liable.

Representation and direct liability

Basically, the need for traffic according to legal representation regulations in ancient Rome was taken into account by the violent relationships under personal law. It was not necessary for the pater familias, as head of the family , to enter into commitments within the framework of his unrestricted patria potestas . He was also contractually bound if a family member subject to him, including house children ( filiifamilias ) or slaves ( servi ), acted and entered into obligations within the framework of the powers granted to them. Although the members of the house association subject to the head of the family were not legally competent , they were legally competent . According to the research of Ernst Levy and Max Kaser , the limited independence is said to have applied at least to late antiquity .

The landlord acquired claims and debts directly ( vinculum iuris ) on the basis of legal transactions by the family subordinates and was therefore liable for them. The principle of the otherwise effective exclusion of contracts in favor of third parties (“ alteri stipulari nemo potest ” translates as “ nobody can be promised anything for another ”) remained unaffected by these violent relationships .

The civil law system was reflected in the process. House children were actionable but had no assets. Slaves were completely incapable of litigation . In order to protect the creditors , payment obligations , claims for the return of property and claims for damages had to be attributed to the dominus , who was also the business owner , procedurally. Since according to Roman law understanding the procedural implementation of an essential characteristic was of a claim - in the absence of dogmatic differentiate between private and Zivilprozessrecht - under the actiones had to be implemented, the force transducer saw optionally one of the adjektizischen actions exposed (joint liability).

The individual adjectic complaints ( actiones ) dealt with direct liability according to criteria that had to be factually differentiated. In some cases, the person in power was even liable for various adjectic complaints at the same time.

The lawsuits in detail ( actiones )

actio de peculio ( peculiar complaint )

The actio de peculio was used when the dominus had left special assets to the violent subject for independent management and obligations arose from it, for which his master was responsible. The special fund was called peculium because it was often specimens or parts of the livestock ( pecus = cattle ) of the ruler. The ruler was liable up to the amount of the assessed value with his entire property, but limited in the judgment up to the amount of the value of the special fund. Insofar as the liability was limited to the value of the peculium , the scope of the possibility of access during enforcement was open. With against the peculium standing demands could dominus offset . The creditors were satisfied in the order in which the action was brought.

In the period of late antiquity, slaves and house children are even said to have been liable within the framework of the actio de peculio . Legal research indicates that the lower class agricultural workers and household members subjected to violence have increasingly unified, reduced to a common lower class. Late antiquity slaves even experienced an appreciation compared to the time of the principate .

actio de in rem verso ( version action )

With the actio de in rem verso ( action for use) the dominus could be claimed if it had been enriched by a legal transaction of the victim of violence . In rem verso clarifies the obligation to reimburse (" ... vel si quid in rem NN inde versum est ... " translates as: " ... or if something has got into the defendant's property ... ").

actio tributoria ( distribution suit )

This lawsuit was granted if the victim of violence (with the knowledge of the person in charge) had a commercial transaction or a business enterprise and this resulted in serious liabilities for the principal. It is not an adjectic complaint in the narrower sense, but by virtue of the factual context of the business activities of those subjected to violence who were granted a peculium for commercial business activities . This became a special fund through which the praetor opened special bankruptcy in the event of overindebtedness and satisfied the creditors according to their quota. The remaining assets of the person in charge remained unaffected (limitation of liability).

actio quod iussu ( action for instructions )

If a victim of violence had authorized a business partner (third party) to conduct and / or conclude business with the victim of violence at his own risk, he could be prosecuted for this by means of the actio quod issu as if it had been his own business. The subsequent ratihabitio (approval) was equated with the previous iussum (authorization) . If the authorization was exceeded, a recourse had to be made to the actio de peculio or actio de in rem verso .

actio exercitoria et institoria ( shipping company / trading business )

The action brought against the company owner was the actio institoria , derived from the Latin institor , the employee. The action directed against the shipowner was the actio exercitoria , which was derived from the Latin exercere and referred to the operation of a shipping company.

Both types of lawsuits were not limited to those subjected to violence. They were used in the area of casuistic regulations. Examples of this are the liability of the shipowner ( exercitor navis ) for the debts of the appointed captain or the shopkeeper ( taverna ) for the operations manager ( institor ) employed in the business . In these cases, the duty of the person in charge was to be subject to a general authorization to conclude all contracts related to the assigned task. The Roman jurists justify the extension of liability of the person in charge to obligations by non-violent people by analogy of the activities of ship managers or operations managers to domestic victims of violence.

In the late Classical period , Papinian created analogies to the cases and began to develop the principle of representation from them . For example, he transferred it to the asset manager ( procurator ) commissioned by his principal who bought or sold an item or took out a loan. Ernst Rabel praised Papinian's approach as one of Papinian's fame, although it would take until the 19th century for the dogmatics of the right of representation to be developed, because only from this point on was there a clear separation between representation, power of attorney and commissioned business.

Procedure and legal consequences

Mainly contractual fulfillment claims based on mutual trust or stipulation and transfer claims under property law were pursued , as well as claims from the right to enrichment if fulfillment failed. The condictio was a suitable type of action . The application was made per legis actio per condictionem . Under tort law , the condictio furtiva came into play in the event of theft .

literature

  • Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 6 no. 4-10 (pp. 75-79).
  • Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 319-325.
  • Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 35 f.
  • Max Kaser : Roman private law , Volume I, 2nd edition, Munich 1971.
  • Max Kaser: The Roman Private Law , Volume II, The Post-Classical Developments , 2nd Edition, Munich 1975.
  • Nicole Kreuter: Roman private law in the 5th century AD: The interpretation of the Visigoth Gregorianus and Hermogenianus (Freiburg legal history treatises), Duncker & Humblot, Berlin 1993.
  • Ernst Levy : Western Roman Vulgar Law , The Law of Obligations, Weimar 1956.
  • Ulrich Manthe : History of Roman law (= Beck'sche series. 2132). CH Beck, Munich 2000, ISBN 3-406-44732-5 , p. 60 ff.
  • Uwe Wesel : History of Law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . P. 212 f.

Remarks

  1. ↑ a b c Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 6 no. 4-10 (pp. 75-79).
  2. ↑ The performance of house children and slaves side by side in: PS 2,31,20.
  3. ^ A b Ernst Levy : Weströmisches Vulgarrecht , Das Obligationenrecht, Weimar 1956, pp. 70 ff. (72); Max Kaser : Das Roman Privatrecht , Volume I, 2nd edition, Munich 1971, p. 607 and Volume II, The post-classical developments , 2nd edition, Munich 1975, p. 100 ff. (102 ff.), 106, 113, 125.
  4. ↑ Gaius 2.87.
  5. ↑ Ulpian : D. 45,1,38,17; in common law , a similarly sounding doctrine of the “privity of contract” was basically preserved until the date of the adoption of the Contract (Rights of Third Parties) Act from 1999.
  6. ↑ a b c Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 35 f.
  7. ↑ a b Herbert Hausmaninger , Walter Selb : Roman private law , Böhlau, Vienna, 1981 (9th edition 2001.) (Böhlau Study Books) ISBN 3-205-07171-9 , pp 319-325.
  8. ↑ Gaius 4.73.
  9. ↑ Nicole Kreuter: Roman private law in the 5th century AD: The interpretation of the Visigothic Gregorianus and Hermogenianus (Freiburg legal-historical treatises), Duncker & Humblot, Berlin 1993, pp. 144 ff. (144).
  10. ↑ Justinian I expanded the actio de in rem verso to include enrichments made by acts and legal acts of non-violent people in the interests of the enriched. This legal development became a model for the modern legal conception, because it was reflected in §§ 1041, 1042 ABGB .
  11. ↑ Gaius 4.72.
  12. ↑ Gaius 4.70
  13. ↑ Gaius 4.71.
  14. ↑ Papinian , Digest 14.3.19 pr .; see also Ulpian Digest 19.1.13.25.