HISTORY
Roman Law
Form and content of law that was developed by the Romans during their 1,000 year empire starting in 500 BC; form in that it was written, and with content that sought to publish a comprehensive code of private law thus addressed a predictable structure for its people and the economy.
Roman law is the source of modern civil law.
When the Roman Empire began, circa 500 BC, it benefited greatly from a code of laws that was published in all the major centers for the people to read and for the judges to enforce: the Twelve Tables.
This tradition of written law stuck and culminated in the Corpus Juris Civilis of one of the last emperors of the Roman Empire, Justinian (482-565).
The Romans expanded upon the Twelve Tables, tentatively at first, benefiting from great legal minds and writers such as Tiberius Coruncanius (281-241 BC) and, later, Cicero (106 to 43 BC) as well as direct forays into amendment such as Lex Aquila of 286 BC.
The law they developed was logical and for the most part, commensurate with most people's common sense. In a nutshell, although it often provided rough justice, it was a hit with the people who knew what to expect in their private lives and in regards to commercial dealings.
By the time of Justinian, Roman law had become a massive body of written law mostly polluted by the writings of too many jurists, making it difficult for the judges to know which law to apply. The Law of Citations had brought some order but not enough.
Justinian ordered that the law be struck anew into a single publication (it turned out to be several publications) which became known by several names such as the Pandects, Justinian's Institutes and Corpus Juris Civilis (literally, the body of civil law).
Gradually, from the time of its publication in 533, this bible of Roman law permeated Europe and formed the basis of the civil law of Europe. Germany, in particular, took to Justinian's Roman law. Indeed, to a German jurist, the term Roman law is taken to mean Justinian's Institutes.
Many have contributed to Roman law including Tribonian, Justinian's foremost jurist, and those who from who Tribonian drew, Gaius and Ulpanius.
No system of law has more influenced the law. Most systems of law, whether stated to be civil or common law, borrow extensively from Roman law as evidenced by the plethora of fundamental Latin legal principles such as caveat emptor, res judicata or salus populi est supreme lex, or laws related to contracts, torts, families, wills and estates.
Comparing the Roman law to the common law, one jurist (Austin; cited by Schultz ) wrote:
"Turning from the study of the English to the study of Roman law, you escape from the empire of chaos and darkness to a world, which seems by comparison the region of order and light."
A
- Actor sequitur forum rei: The plaintiff must follow the forum of the thing in dispute.
Introductory Formulated by Roman jurists near the end of the third century AD,
the maxim actor sequitur forum rei is of ancient lineage. "Rei" being the genitive form as well of reus, a thing, as of nuts, a defendant, the phrase signifies that the moving party must seise, as the case may be. the forum of the defendant or of the property in suit. The formula stands today — in the words of a German jurist — "for a legal principle (Rechtssatz) that is known everywhere, widely recognized, and universally approved . . . [. Namely,] that the plain-tiff must go to the defendant's forum (Gerichtsstand)".
C
- Consuetudo Volentes Ducit, Lex Nolentes Trahit
Customs leads the willing, law drags the unwilling.
- Crimen Omnia Ex Se Nata Vitiat
Property obtained by crime is tainted (vitiated).
- commodum ex injuria sua nemo habere debet
Crime vitiates everything which springs from it.
- Cuius Est Solum Ejus Est Usque Ad Caelum
who owns the land, owns down to the center of the earth and up to the heavens.
D
Delegatus Non Potest Delegare
- a delegate cannot delegate.
(Note : One of the pivotal principles of administrative law: that a delegate cannot delegate.
A person to whom an authority or decision-making power has been delegated to from a higher source, cannot, in turn, delegate again to another, unless the original delegation explicitly authorized it. )
De Minimis Non Curat Lex : a common law principle whereby judges will not sit in judgment of extremely minor transgressions of the law.
Note : It has been restated as "the law does not concern itself with trifles".
E
- Ex Turpi Causa Non Oritur Actio : Of an illegal cause there can be no lawsuit.
F
- Falsa Demonstratio Non Nacet : A wrong description of an item in a legal document (such as a will) will not necessarily void the gift if it can be determined from other facts.
- Furiosi Nulla Voluntas Est : mentally impaired persons cannot validly sign a will.
Note : A Latin expression that mentally impaired or incapable persons cannot validly sign a will.
- Jus Ex Injuria Non Oritur : a legal right or entitlement cannot arise from an unlawful act or omission.
Note : Often summarized as simply ex injuria.
Certain facts when they spring from crime or other illegal or unlawful acts or omissions, no matter how public or prominent, cannot form the basis of law or legal rights.
Often stated as the logical extension of commodom ex injuria sua nemo habere debet as well as crimen omnia ex se nata vitiat.
For example, if a person seeking to break and enter your home in the middle of the night, fell into a deep construction hole, he could be estopped or precluded from obtaining damages because of ex injuria.
- Jus Spatiandi Et Manendi : referring to a legal right of way, and to enjoyment, granted to the public but only for the purposes of recreation or education, such as upon parks or public squares.
- Lubricum Linquae Non Facile Trahendum Est In Poena : the law tends to overlook rash or inconsiderate language spoken in the heat of the moment.
Note : A slip of the tongue is not subject to or, ought not to be lightly subject to punishment.
Necessitas Indicit Privilegium Quoad Jura Privata : From necessity spring privileges upon private rights.
- Nemo Debet Locupletari Ex Aliena Jactura : no one should be enriched by another's loss.
A principle of Roman law and, later civil law, which predates Justinian's Institutes of 533.
Wharton's Law Lexicon uses these words, although they seem limited to a maritime law context as set out in the Fletcher decision: "No one ought to be enriched by another's disaster."
This doctrine of basic fairness permeates the justice system in almost all countries of the world in some form or another, depending on the evolution, limitations and contexts of the various legal systems. As stated by Justice Bovill in Fletcher: "The general principle ... is acted upon in all Courts and in all countries but in its application, different countries have adopted different rules."
- Nemo Judex In Parte Sua : no person can judge a case in which he or she is party or in which he/she has an interest.
Latin, and a fundamental principle of natural justice which states that no person can judge a case in which he or she is party or in which he/she has an interest.
Also known as:
• nemo judex in sua causa; or
• nemo debet esse judex in propria causa.
- Quicquid Plantatur Solo, Solo Cedit : whatever is planted in the ground, belongs to the ground.
This Latin maxim has evolved considerably since its inception in Roman law, where it's application was mostly to determine that trees and crops were sold with, and formed part of the land. It now translates to "whatever is affixed to the ground, belongs to the ground" and is the basic law of fixtures.
Thus, following quicquid plantatur solo, solo cedit, loose bricks are chattels; moveables or personal property and do not form part of the land, no mattter how high a pile of them. However, once cemented together and used to erect a house, the bricks become part of the land and thus converts from chattel to real property.
- Qui Facit Per Alium Facit Per Se : He who acts through another, acts himself.
A fundamental premise of the agency law.
As stated in Colonial Securities Inc. v. Merrill Lynch, the US District Court referred to, in 1978, the: "... common law maxim qui facit per alium facit per se, he who acts through another acts himself operates to make the acts of an agent within the scope of his authority, in legal effect, the acts of his principal."
- Qui Jure Suo Utitur Neminem Facit Injuriam : he who exercises his legal rights harms no one.
Person may exercise freedom of action as regards his or her property.
Use of my right cannot be taken away from me because it injures another. Also stated as neminem laedit qui suo jure utitur, a form preferred by the civil law. Some jurists have stated the maxim as qui jure suo utitur neminem laedit. It conflicts and usually cedes to the maxim sic utera tuo ut alienam non laedas (use of property must not harm others). Indeed, in international law reigns a seemingly perpetual conflict between one nation's assertion of qui jure suo utitur neminem facit injuriam while neighbouring nations base their complaint on sic utera tuo ut alienam non laedas.
- Qui Non Obstat Quod Obstare Potest, Facere Videtur : an individual who does not prevent something which he/she could of prevented, is taken to have done that thing.
If a person lets something happens that he or she can prevent, without taking any action to prevent it, he or she will be taken by the law as having committed that action.
He seems to do, who does not oppose what he can oppose.
- Salus Populi Est Suprema Lex : the welfare of an individual yields to that of the community. Translated literally: The health, safety or welfare of the public is the supreme law.
- Sic Utera Tuo Ut Alienam Non Laedas : use your property in such a fashion so as to not disturb others.
Also sic utere tuo ut alienum non laedas.
Note : It often conflicts with qui jure suo utitur neminem facit injuriam (he who exercises his lawful rights, harms no-one).
- Ubi Jus Ibi Remedium : For every wrong, the law provides a remedy.
An overly ambitious principle or maxim of Roman law now often used, and well known to the common law.
- Valeat Quantum Valere Potest : it shall have effect as far as it can have effect.
Often expressed as simply valeat quantum.
