Legis actio per pignoris capionem

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The legisl actio per pignoris capionem was an enforcement process of the legislative procedure type that originated in early Roman times . Originally, this special enforcement procedure for military service payments ( aes militare, stipendium ) was granted from the existing military relationship, but was then generally used when sacred or public claims against third parties had to be enforced by securing pledges.

The legal origins of the procedure were based partly on the Twelve Tables Act and partly on older pontifical provisions. They were derived from the mos maiorum and were based on sacred customary law .

In addition, early enforcement proceedings were pursued by means of the legis actio per manus iniectionem .

Authorization basis and procedure

There was no standardized special authorization for access from seizure. The research assumes that it may be covered by the general clause of the legis actio sacramento (in personam) , which declared taking possession of the object as a subsequent legal consequence. The actual execution of the seizure by seizing the thing ( pignoris capio ) did not take place at the court ( in iure ) and in the presence of a praetor , but at the place where the thing was stored. The seizure of pledges could therefore take place on the days ( dies nefasti ) on which otherwise magistrate legal acts were excluded. Claims could result from sacral and public life matters.

The seizure of the thing was carried out according to a reasoning formula with the laying on of hands or a gesture in the presence of witnesses. The presence of the person affected by the measure on site was not a mandatory prerequisite for the execution. An objection by the addressee to the seizure had no suspensive effect. After a release period had expired, the seized items became the property of the pledgee. In the late Republican era and with the advent of the form process , the legis actio per pignoris capionem became obsolete and no longer applied.

Legal source

Gaius : Gaii Institutiones : 4, 26-29.

literature

Individual evidence

  1. ↑ a b Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 374.