Legis actio sacramento in rem

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The legisl actio sacramento in rem was a civil law process of the (early) republican process type of legislative actions and the oldest known Roman property process. It was conceived as a pretender dispute, in which the plaintiff and the defendant assert their claim to ownership ( meum esse ) of the matter by means of speech and counter-speech . Both invest a considerable amount of money, the sacramentum (penalty) , for their respective claims of property. The judge decided which sacramentum leads to success ( cuius sacramentum iustum sit ) and thus indirectly made the determination of who had the better right in the matter.

Description by Gaius

An important source leads to the high-class jurist Gaius in the IV. Book 16. Chap. of his institutions .

Vindicatio and contravindicatio

For the legis actio sacramento in rem occurred only when the defendant ownership assertion ( vindicatio ) the plaintiff's own opposed ( contravindicatio ). For the amicable legisl actio sacramento , the only possible defendant was an owner who claimed the matter for himself, i.e. an owner.

“If an action was brought about a right in rem, movable and also moving things, which can be brought or brought to court at all, were vindicated before the court clerk in this way: The one who vindicated held a staff (festuca); then he seized the matter himself, for example a slave, and said as follows:

HVNC EGO HOMINEM EX IURE QVIRITIUM MEUM ESSE AIO SECUNDUM SUAM CAUSAM SICUT DIXI; ECCE TIBI, VINDICTAM INPOSUI
( I say that this slave is mine according to the law of the Quirites , according to his legal position. As I have spoken, see for yourself, I put on the staff )

and at the same time he put on the staff to the slave. The opponent spoke and acted in the same way. "

The punctuation of the proverb

The Scriptio continua of Verona Gaiuscodex is the misunderstanding of the spell formula all Travel: HUNC EGO HOMINEM EX IURE QUIRITIUM MEUM ESSE AIO SECUNDUM SUAM CAUSAM SICUT DIXI ECCE TIBI VINDICTAM INPOSUI. The formula consists of two main clauses. The grammar allows the caesura to be placed after AIO or after the clause SECUNDUM SUAM CAUSAM or even after SICUT DIXI. In the above translation, the caesura was set after SECUNDUM SUAM CAUSAM.

According to Wolf, the turning point is set at AIO in which he argues as follows:

1. In iure cessio . This legal transaction is modeled on the sacrament process. Therefore, if the acquirer, like the plaintiff in the process, has to touch the slave who is to be transferred to him with his hand and speak the formula HUNC EGO HOMINEM EX IURE QUIRITIUM MEUM ESSE AIO, then it can be assumed that this formula is the assertion of ownership of the vindication ritual is, and vice versa secundum ... does not belong to it.
2. the mancipatio : Her claim of ownership is also: HUNC EGO HOMINEM EX IURE QUIRITIUM MEUM ESSE AIO, and she too is accompanied by the laying on of hands. Due to the consistency of the claims of ownership in the process and mancipation ritual, this piece of formula proves to be a component of the oldest legal formula science.
3. The collection of Marcus Valerius Probus listed under the litterae singulares in legis actionibus SSCSDETV (secundum suam causam sicut dixi ecce tibi vindicta). The symbols in the collection are abbreviations of individual words, terms, standing expressions, connected parts of sentences and entire sentences. Every abbreviated multiple word sequence is a unit of meaning. The sigle SSCSDETV suggests that the first sentence of the proverb ended with MEUM ESSE AIO.

The saying of the vindication ritual can then be read as follows:

HUNC EGO HOMINEM EX IURE QUIRITIUM MEUM ESSE AIO.
SECUNDUM SUAM CAUSAM SICUT DIXI, ECCE TIBI VINDICTAM INPOSUI.

Hand laying and baton laying

The process initiation is clearly divided into two sections. The actual reasoning for the dispute in speech and counter-speech, with the invitation to take the oath and the oath itself, is preceded by a prelude. In this prelude the vindicare takes place with the above saying; vindicate both opponents, first the plaintiff, then the defendant. The legal dispute over ancient Roman property is characterized by a feature that has repeatedly raised doubts: the fact that not only the plaintiff, but both parties claim a 'meum esse ex iure quiritium'. Understanding depends on this peculiarity of the two vindications of the whole ritual. Max Kaser found an explanation from the then still underdeveloped conception of property by the Romans (only a relative, “shared” property). It is also conceivable that the story came about from the reproduction of given procedures of criminal origin (e.g. JG Wolf ).

Self-help theory

According to the self-help theory ( Jhering ; Kaser ), private law is derived from a state and legal system upstream of the individual's own power. Jhering described the vindicatio in 1852 as a “sham act” of self-help and the whole scene as a “sham fight”. The opponents of the trial, who touched the brought-in slave at the court, each claiming that he belongs to him, with the hand and with a stick or stick, seized him by force. In the “contradicting acts of empowerment”, the opponents of the litigation are fighting over the matter. They touch the object, touch it with a stick (festuca, vindicta) and claim their property in a ritual formula. This whole act expresses ritual access or empowerment against which physical violence is no longer permissible. 'Vindictam' may originally be 'vim dictam' (violence announced) and was only later reinterpreted as festuca. The second part of the formula then means: "accordingly (ie according to the previous vindication), as I have explained, before your eyes (and directed against you) I exercised the ritual violence". The mutual vindications follow the symbol of the violent settlement of disputes in the unregulated duel of the unlawful past. The name of the dispute 'manum conserere' (Gell. 20,10, 7 ff.), Which has been translated as "hand-in-hand" since Jhering, reminds us of this self-power as the root of the legal dispute.

Insult process according to Wolf

The opponents are not "hand-mean"; the name of the dispute 'manum conserere' is incorrectly translated as in the property vindication; one does not touch the other, but the one like the other the slave. And this gesture does not mean access; like the formula it accompanies, it is a declaration of ownership. The parties do not turn the stick or stick against each other; on the contrary, each of them directs it against the slave of whom he asserts in advance that it belongs to him. What is presented here as a prelude to justifying the dispute is neither empowerment nor struggle. The parties do not compete against each other, but act side by side. Everyone puts the festuca on the slave, which means that he beats or injures him. But only the owner is allowed to beat the slave. One of them is wrong: the plaintiff, if the defendant's claim of ownership is correct, the defendant, if the plaintiff's claim is correct. The subject of the trial is then right or wrong of the two alleged acts. Since only the owner can have acted legally, the legality of the act is more incidentally established as the perpetrator's property.

Association theory

According to the point of view represented by Okko Behrends , the share of sovereign organization in private law is emphasized. The early Roman period provides a simplified model of the constitutionality of private law, namely that freedom and property are the rights of members of the legal system. The Latin word group held together by the prefix * veni has a liberal-peaceful core meaning and is evidenced by an abundance of Indo-European relatives. The basic form vindicere refers exclusively to the assertion of freedom in the association, namely z. B. in the form that a fellow citizen stands before the praetor as a vindex in favor of a debtor who has been enslaved by his creditor by virtue of manus iniectio. According to the old view, one must be a free member of the association in order to be able to have property in it: property ex iure Quiritium only has the Quirit. * In the Roman case, Veni does not simply mean belonging to a large family, but rather a more complex issue, namely that someone is recognized as a full member of the gens (thought of as a kinship) and can therefore have all the rights in it that are granted by depend on this position. A vindication model emerges if one considers that the assertion of freedom and all the contents of property belong to the vindication type of action. Freedom and property rights to land, people and things also denote the most important rights of an early head of the family. In this view, the vindicta is that the staff - which gave a position in the manumissio vindicta, the release by staff, and with which in the contested vindications the holder of this position, the pater familias , symbolized his right to persons and things - is therefore the central symbol for urban Rome in its early days.

praetor

(Gaius) “When both of them had vindicated, the praetor said:
MITTITE AMBO HOMINEM,
( Let go of both the slave ).

Sacramenta

They let go of him. Whoever vindicated first spoke as follows:
POSTULO, ANNE DICAS, QUA EX CAUSA VINDICAVERIS
( I demand, say, for what [legally significant property] reason are you vindicating? ).

And he said,
IUS FECI, SICUT VINDICTAM INPOSUI.
( I was right the way I put the baton on ).

Then said the one who had vindicated first: . ( Since you vindicated wrongly, I call you to take an oath of 500 pounds of copper ). The opponent also said in the same way: ( And I you ).
QUANDO TU INIURIA VINDICAVISTI, QUINGENTIS ASSIBUS SACRAMENTO TE PROVOCO



ET EGO TE

But if the thing was worth less than 1,000 aces, they only took the oath for over 50 aces . Then followed the (steps) with which the complaint was made in person [shown in the lost text Gaius IV 15]. The praetor then assigned the dispute to one of the two: that is, he appointed one as the owner, and he ordered him to provide the opponent with guarantors for the dispute and for the interim possession, that means for the cause and the fruits. However, the praetor himself accepted other guarantors from everyone because of the oath (sacramentum), since the oath amount fell to the state treasury. "

Further development

A transition stage between the legis actio sacramento in rem and the classic rei vindicatio is the 'agere per sponsionem'. In order to avoid the sacramenta of the old process, the plaintiff has the defendant promise a (symbolic) amount of money by means of stipulatio in the event that the plaintiff is the owner. The legislative actions are repealed by the leges Iuliae (Gai. 4. 30), after it had already been pushed back by the procedures per sponsionem and per formulam petitoriam.

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