Senatus consultum Velleianum

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The Senatus Consultum Velleianum is a resolution of the Roman Senate issued at the request of an eponymous (named) consul in the middle of the first century, probably in AD 46 . He urged the courts not to allow claims against women to be heard if these resulted from liabilities that served to secure claims against men (mostly husbands). Typically, they were based on intercessions from loans ( mutuum ) or guarantees ( sponsio , later fideiussio ).

Without the senatorial ban, the defendant would have been exposed to different claims for repayment, depending on whether the amount of money was determined or only determinable . The unenforceability of the claim was asserted by means of an objection .

history

The original Senate resolution must have been formulated in a very flimsy and non-binding manner, because Fritz Schulz praised it in an English-speaking context as a “superficial and clumsily worded enactment” (translated back to something like: “superficial and clumsily worded regulation”). In his opinion, the decision contained at best the character of a declaration of intent. That changed in the following years, however, because outlines were created for the decision, which also pacified the initial dispute as to whether Senatus consuls, in addition to the extremely significant leges , could even record enforceable measures. According to today's understanding, the prohibition encompassed not only the protected "obligations" from the guarantee and loan credit, but all forms of assuming or assuming debt . It was also irrelevant whether such a debt was assumed on one's own account or in favor of a third party ( intercedere pro aliis ).

Almost at the same time, another ban was issued, which was aimed at the sons of the pater familias , the so-called Senatus consultum Macedonianum . The arrangement against house sons closed the circle of protective rules in favor of the environment of the patria potestas . Even in ancient Rome, the prohibition of what is known as unnamed donation , which is a donation between spouses, was taken very seriously.

The intercession arrangements became more complicated under Justinian during late antiquity . He ordered that women were generally no longer allowed to assume liability for men, unless, as an exception, there was a reservation of exemption. Such exemptions could be provided in writing by means of a public document. They served as evidence of matching witness statements. Initially void intercessions could be healed. For this purpose, the legal transaction was simply repeated in writing. The mm business dealings were of no use in favor of their own husband, because in this legal relationship all business dealings were fundamentally absolutely void.

Intercessions by women were also unopposed during the Middle Ages and the early modern period. In order to be able to derive this right of defense with legal certainty, the Justinianic Novellae ( Authenicum ) were used, this part of the later so-called Corpus Iuris Civilis, which contained a decree on wives' legislation, which was mixed and applied with the slightly different original Senate resolution. If affirmations on oath could be presented, or if the women were in business life as merchants, the ineffectiveness of the rules of intercession could exceptionally be broken due to aspects of commercial law.

The codifications issued during the modern era lifted the Velleian intercession prohibition in parts or at least significantly weakened it, because special formal constraints or supplementary caretakers were introduced. If these formal requirements were met, the underlying transactions were also fully effective.

Late 19th century the laws fathers intervened at the consultations on the Civil Code (BGB) on a decision of the held in 1861, the second German Jurists back and raised with respect to Ms. guarantees the remaining limitations to capacity on. In 1988, the reservation of the consent of the guardianship court in the case of obligations between the wife and third parties and in favor of the husband was also lifted in the Swiss Civil Code . In South Africa, the Senatus Consultum Velleianum came to an end in 1971.

Federal Constitutional Court on dependents' guarantees

Even today, the case law on relatives' guarantees is in a context of the traditional Senatus Consultum Velleianum. It became clear in 1993 when the Federal Constitutional Court , the civil court with its decision Pledge instructed that legal transactions of this type are significantly more accurate in the future to check than in the past.

The court objected that in a large number of cases a (blatant) structural inferiority of the surety could be identified. The court took the view that this resulted primarily from excessive economic demands, often a consequence of the surety's underlying inexperience. Since then, civil jurisdiction has been required to check suspicious transactions for immoral moments. The yardstick for this is § 138 BGB . The case law now even operates specific intercession control and divides the facts into case groups (compare in this respect: more recent case law in guarantee law and immoral spouse's guarantee ).

literature

  • Wolfgang Ernst : Intercession. From the prohibition of women's intercession to the immorality of dependents' guarantees to protect consumers as intercedes. In: Reinhard Zimmermann , Rolf Knütel , Jens Peter Meincke (eds.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, ISBN 3-8114-9915-7 , pp. 395-430, here 397 f.
  • Berthold Kupisch : The Roman woman in business life. An instruction example: Ulpian, Julian, Marcellus D.16,1,8,2. In: Ulrich Hübner , Werner F. Ebke (ed.): Festschrift for Bernhard Großfeld on his 65th birthday. Verlag Recht und Wirtschaft, Heidelberg 1999, ISBN 3-8005-1207-6 , pp. 659-670.
  • Dieter Medicus : On the history of the Senatus Consultum Velleianum (= research on Roman law. 8, ZDB -ID 503908-3 ). Böhlau, Graz et al. 1957, (at the same time: Münster, university, dissertation, 1956).
  • Ulrike Mönnich: Protection of women from risky business. Intercession bans according to the Velleian Senate resolution (= dissertations on legal history. 10). Böhlau, Cologne et al. 1999, ISBN 3-412-14598-X (At the same time: University, dissertation, Cologne 1998, under the title Das Senatus Consultum Velleianum. ).
  • Heinrich Vogt : Studies on the senatus consultum Velleianum. Röhrscheid, Bonn 1952.
  • Reinhard Zimmermann : The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta, Kapstadt et al. 1990, ISBN 0-7021-2347-1 , pp. 145 ff.

Remarks

  1. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht (= Böhlau Study Books. ) Böhlau, Vienna et al. 1981, ISBN 3-205-07171-9 , pp. 291-296.
  2. ^ Fritz Schulz : Classical Roman Law. Clarendon Press, Oxford 1951, p. 569.
  3. ↑ Basically on the relationship between legal sources in brief: Max Kaser : Roman legal sources and applied legal method. in: Research on Roman Law Volume 36. Verlag Böhlau, Vienna, Cologne, Graz, 1986. ISBN 3-205-05001-0 . P. 16 f. (with reference to sources of the high and late classics Gaius and Ulpian ).
  4. ^ A b Wolfgang Ernst: Interzession. From the prohibition of women's intercession to the immorality of dependents' guarantees to protect consumers as interceders. In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. 1999, pp. 395-430, here 397 f.
  5. ^ Gustav Dietzel: The Senatus consultum Macedonianum. A civilist monograph. Hirzel, Leipzig 1856, ( digitized version ).
  6. ↑ Digest 14, 6; Codex Iustinianus 4, 28.
  7. ↑ Hans Hermann Seiler : Familia and family law or: Family law without a family? - A legal historical consideration. In: Hans Hermann Seiler: History and the present in civil law. Selected Writings. Edited by Elke Herrmann. Heymann, Köln et al. 2004, ISBN 3-452-25387-2 , pp. 217–228, here p. 219.
  8. ↑ Digest 24, 1; Codex Iustinianus 5, 3 and 16.
  9. ↑ Hans Kreller : The prohibition of women intercession from Augustus to Justinian. In: Gazette of the Philosophical-Historical Class of the Austrian Academy of Sciences. 1956, No. 1, pp. 1-11, here pp. 10 f .; Max Kaser : Roman private law. Section 2: The post-classical developments (= Handbook of Classical Studies . Section 10: Legal History of Antiquity. Part 3, Vol. 3). 2nd, revised edition with supplements to the 1st section. Beck, Munich 1975, ISBN 3-406-01429-1 , p. 461 ff.
  10. ↑ Codex Iustinianus 4,29,23,2 (anno 530).
  11. ↑ Codex Iustinianus 4,29,22 (anno 530).
  12. ↑ Novellae 134.8.
  13. ^ Wilhelm Girtanner : The guarantee after common civil rights. Historically and dogmatically presented. Department 1: Historical Department. Book 2: History of Dogmas in the Middle Ages and Modern Times. Hochhausen, Jena 1850, p. 258 ff .; Helmut Coing : European private law. Volume 1: Older Common Law. (1500-1800). Beck, Munich 1985, ISBN 3-406-30306-4 , p. 198 with further references; Oskar Lehner: Senatus Consultum Velleianum - The return of an ancient legal figure in early modern Austrian law. In: Journal of the Savigny Foundation for Legal History . German Department. Vol. 105, 1988, pp. 270-288, here pp. 277 ff.
  14. ↑ Authentica si qua mulier (Codex ad Senatus Consultum Velleianum)
  15. ^ Bernhard Windscheid : Textbook of Pandektenrecht. Volume 2. 9th edition, with a comparative presentation of German civil law, edited by Theodor Kipp . Rütten & Loenig, Frankfurt am Main 1906, p. 1127 ff .; Matthias Kordes: From the "speech" to the "Libellus actionis" . Cologne and the reception of Roman law at the turn of the late Middle Ages to the early modern period (1450–1550). In: Rheinische Vierteljahrsblätter 66 (2002), pp. 211–239 (especially pp. 224 ff.).
  16. ↑ Werner Schubert (Ed.): The templates of the editors for the first commission for the elaboration of the draft of a civil code. (Part 4): Gottlieb Planck : Family Law. Volume 1: Entry into and effects of marriage, marriage contracts. Unchanged photomechanical reprint of the edition reproduced as a manuscript from the years 1876–1883. de Gruyter, Berlin et al. 1983, p. 425.
  17. ^ Reinhard Zimmermann: The Law of Obligations. Roman Foundations of the Civilian Tradition. 1990, pp. 145 ff. (151).
  18. ↑ BVerfGE 89, 214 = NJW 1994, 36. (= Decision of October 19, 1993).
  19. ↑ Helmut Heinrichs in Palandt : Bürgerliches Gesetzbuch (= Beck's short comments. 7). 59th, revised edition. Beck, Munich 2000, ISBN 3-406-45570-0 , § 138, Rn. 37 ff .; Dieter Medicus : The importance of the creditor's expectations when concluding the guarantee. In: Bernhard Großfeld , Rolf Sack, Thomas MJ Möllers , Josef Drexl , Andreas Heinemann (eds.): Festschrift for Wolfgang Fikentscher on his 70th birthday. Mohr Siebeck, Tübingen 1998, ISBN 3-16-146704-3 , pp. 265-282.