Mancipatio

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The mancipatio (German: Manzipation ) is a form of the legal transaction of the ius civile in ancient Roman legal relations . The legal act, which was already established in the time of the Twelve Tables Act, served to transfer property and other rights of rule.

Conceptually, the mancipatio is derived from the Latin words manus (hand) and capere (to grasp). A fixed ritual is followed, which is modeled on the legis actio sacramento in rem .

The ritual of the mancipatio

The mancipatio was a negotium per aes et libram (business by copper and scales). In the presence of at least five witnesses, who had to be Roman citizens , and one other Roman citizen, who took on the function of a balance holder ( libripens ) , the acquirer had to "seize" the slave or the thing in which he was to acquire property according to Gaius (recorded in Institutions 1, 119) to speak the following words:

"Hunc ego hominem ex iure Quiritium meum esse aio isque mihi emptus esto hoc aere aeneaque libra."

"I declare that this slave [or the respective object of purchase] belongs to me according to the law of the Quirites [= the Roman citizens] and he should be bought by me through this piece of copper and this copper scales."

After the balance holder had determined the weighted purchase price, the buyer handed the copper piece over to the previous owner. The seller, for his part, was silent, so did not counteract by contravindicatio and accepted the purchase price weighed down. In the further development of the legal figure, the addition of the purchase price was waived and the property purchaser symbolically knocked on the scales with a coin (mancipatio nummo uno) .

Res mancipi

The object of a mancipatio could only be legally certain objects, the so-called res mancipi (originally: res mancipii ). These were slaves, Italian land along with field servitutes (paths, water pipes and the like) as well as draft and pack animals (cattle, horses, donkeys, mules and mules), as well as all other agricultural means of production that are essential for rural conditions.

Historical development of the mancipatio

The ritual of the mancipatio comes from the procedure from a time when a piece of copper was not only given as a symbol for the purchase, but the purchase price was actually handed over on the spot and measured with the scales.

In addition to this memory of older sales, it is noticeable that the formula of mancipatio is similar to that of the early ownership process ( vindicatio ) . This also explains the peculiarity that only the acquirer expresses himself by means of a slogan: the acquirer asserts (like a plaintiff) his property right and the seller does not contradict this (like a defendant, who must be convicted if there is no reply). This shows that the concept of the contract was not yet fully formed, although the mancipatio was a purchase . This insofar as the seller does not actually act as a contractual partner. However, this could also be due to the fact that there was originally a ban on the sale of res mancipi , which was circumvented precisely by the fact that the purchaser acted outwardly as if he were already the owner, who was challenging his property from the seller (pseudo-business character). The claim of ownership was then combined with the declaration of purchase only later.

The development from the original purchase process to a ritual in which only the piece of copper is given as a symbolic purchase price has led in the course of Roman private law history to the fact that the res mancipi could also be assigned by mancipatio for any legal reason other than that of a purchase contract . The mancipatio can therefore be understood as a prototype of the disposal transaction .

The mancipatio allowed the pater familias , who exercised extensive domestic authority , to transfer not only slaves but also house sons (filiifamilias) to the ruling power of another head of the family. The Twelve Tables law stepped in insofar as it standardized:

"Si pater filium ter venum duit, filius a patre liber esto."

"If a father has sold his son three times, the son should be free from the father."

- XII panels , panel IV, 2.

This passage of text only makes sense because child sales were mostly made for work purposes and a transfer back took place after the work was done.

The mancipatio increasingly proved to be structurally obsolete at the beginning of the early imperial period . With the abandonment of the legal class system ( ius civile , ius honorarium and ius gentium ), the mancipatio as well as the form of transference in iure cessio were increasingly abandoned. In the compilations of the late antique emperor Justinian , the legal act had completely disappeared.

Aftertaste

The idea of ​​acquiring property by paying a symbolic purchase price on which a mancipatio is based has survived to this day. It is mainly used when the object to be purchased has significant defects, burdens or risks. With the purchase item, the purchaser assumes considerable costs or risks that the original owner would otherwise have to bear, for example when selling over-indebted companies or environmentally contaminated properties of the NVA for the (symbolic) price of 1 euro or 1 DM.

literature

Individual evidence

  1. It is believed that it goes back to the time of the oldest pontifical jurisprudence of the early royal times.
  2. Georges .
  3. ^ Fritz Sturm : Ius gentium. Imperialist whitewash of Roman lawyers . In: Roman Jurisprudence - Dogmatics, Tradition, Reception . Festschrift for Detlef Liebs on his 75th birthday. Edited by Karlheinz Muscheler . Duncker & Humblot, Berlin (= Freiburger Rechtsgeschichtliche Abhandlungen. New series, volume 63), pp. 663–669.