Roman Philosophy- THE SUMMARY

1 Compilation by Cessy Ciar – 1AA | Principles of Roman Philosophy in Philippine Jurisprudence by Atty. Jorge Coquia

THINGS (De Rerum Divisione) Things (Res) - Whatever is capable of being the subject of a right.

I. Principal Divisions of Things:

1. Res Divini Juris - subject to divine law and belong to no one.

2. Res Sacrae - dedicated to gods above or celestial beings, duly consecrated by the pontiffs as sacred buildings and offerings. General rule: Res Sacrae is not subject to mortgage or sale. Exception: When such sale is for purchasing the freedom of captives, support of the poor in time of famine, or to pay debts of the church. Res Religiosae - dedicated to the gods below or abandoned to the infernal gods. (Cemeteries and tombs)

Res Sanctae- placed under the special protection of the gods by having a severe penalty attached to the violation of their security.

3. Res Humani Juris –subject to human law and

capable of human ownership. a. Res publicae - belonging to the state

and for the use of its citizens, like rivers and ports.

b. Res privatae - capable of being owned by individual persons or entities.

4. Nostro patrimonio or within patrimony –

capable of private ownership.

Extra nostro patrirnonium - things which are not capable of ownership.

a. Res publicae - public properties such as rivers and ports.

b. Res comunes- common to all mankind, such as air, running water, and the sea.

c. Res universtatis- belonging to corporate bodies (universities), such as theatres and stadia.

Res nullius - Things not appropriated by anyone, such as common or unoccupied lands, and wild animals.

d. Res alcujus- things belonging to someone.

5. Res Mancipi (manciple things) – in order to be

transferred or conveyed, required the formality of a mancipium, such as slaves and 4-footed animals.

Res nec Mancipi- may be transferred without the said formality

MANCIPIUM – a symbolic sale conducted in the presence of 5 witnesses and of a libripens or balance holder.

6. Res Corporales- physical things (tangible), such

as money, slaves, garment, and gold. Res Incorporales – Do not have physical existence over which rights may be exercised like rights of servitudes, of action, inheritance or obligation.

7. Res Quae Usu Consumuntur (fungible)-

consumed through its use (examples: wheat or money). Res Quae Usu Non Consumuntur (non- fungible) - cannot be consumed by its use (example: furniture).

8. Mobiles (movables) – susceptible to physical

transfer Immobiles (immovables) – properties which are not susceptible to physical transfer.

The wide range of classifications of Res relies primarily on the many characteristics a thing possesses. Thus, one thing could be susceptible to two or more classifications because of its nature and application.

II. Treatment of Things according to Real Right and Personal Rights

Real Right (Jus In Rem)- belongs to a person, immediately and absolutely, and which is the same against the world. Personal Right (Jus In Personem)- gives the possessor a power to oblige another person to give or procure, to do or not to do something. Real Right vs. Personal Right

Real Right Personal Right Can be enforced against:

Any person in the world.

A particular party to an obligation.

Transferrability:

May be transferred readily.

In general, may not be transferred except in certain cases.

Remedy exercised through:

Action in rem - against anyone in possession of the thing or anyone who contests the right.

Actio in personam - directed only to the particular defendant on the obligation.

III. OWNERSHIP

Ownership (Dominium) The right of enjoyment or control over a thing, unless limited by law. It is a perfect and complete property or ownership of a thing. Five inherent elements:

a. Jus Intendi or right to use the thing. b. Jus Abutendi or right to abuse. c. Jus Fruendi or right to enjoy the fruits. d. Jus Disponendi or right to dispose of the thing. e. Jus Vindicandi or right to defend the title

against anybody and to recover.

“The best way to finish an unpleasant task is to get started.”

-Anonymous


These characteristics and elements of ownership according to Roman Law transcends to Philippine Laws at present, where provisions referring to them are stated in Art. 427 to 439 of the Civil Code of The Philippines governing Ownership. Possession (Possessio) Can be understood in two ways:

a. Natural possession- merely physical detention or holding of a thing

b. Civil possession- actual or physical detention coupled with the intent to retain the thing as one’s own

Two elements in possession:

1. Corpus (physical) 2. Animus (intent)

Modes of Acquiring Ownership Can be divided into two main classes:

a. Original methods A. Occupatio B. Accessio

b. Derivative methods a. Mancipation f. Usucapion b. Jus Jure Cessio g. Praescripto c. Traditio h. Adjudicatio d. Donation i. Lex e. Thesaurus

*A third minor classification for acquiring ownership is by authority of the State.

A. Original Methods of Acquiring Ownership

1. Occupatio- taking possession of a thing which never had an owner or had ceased to have one.

*In Philippine Law, acquiring ownership over a thing by Occupation is provided for under Article 713 to 720 of the Civil Code.

Two essential elements of

Occupatio: a. The thing to be acquired is res

nullius, which has not been appropriated by another person.

b. The person acquiring must have physical control (corpus) over the thing, and the intent to own (animus).

General rule: wild animals become the property of the captor as long as they remain within the same’s keeping. But when they escape and recovered their natural liberty, they cease to be the property of the first captor, and consequently, becomes the property of anyone who captures them. Exception: Fowls and geese are not naturally wild and once frightened away from the farm and manage to escape, they remain the property of the original owner.

Animus Revertendi – refers to animals that form the habit of going and returning to the premises of their owner. Ownership is retained by the keeper until they lose such habit of returning.

2. Accessio – acquiring ownership by the increase or actual gain of one’s property.

*In Philippine Law, The right of accession is provided for under Article 440 of the Civil Code.

Forms of Accessio: A. By Natural Increase B. By An Act of Man

By Natural Increase:

1. Fructus - “fruits” of one’s property become the property of the owner.

2. Alluvion – the gradual addition to the land of the owner by the action of water.

Exception to this is Avulsion, where if the action of the river is so sudden that it cuts a known portion of land and transfers it to the land of the owner, the original owner retains ownership.

3. Insula in flumine nata – the formation of an island in the river. The island belongs to the owners of the riparian banks. If it forms on the sea, it becomes property of the first occupant. 4. Beds and rivers which are abandoned by natural change of course of waters is owned by the proprietor of the bank up to the line of the mid channel. 5. Plantatio – whatever is planted on the land has taken root is owned by the owner. 6. Bona fide purchaser of land has the rights to the fruits thereof.

By Any Act of Man 1. Written characters accede to the owner of

the paper or parchment which they are written

2. Painter of a painting on the tablet of another becomes the owner, but he must pay the cost of the tablet to the owner.

3. Inadeficatio – If a man builds on his own ground with the materials of another, he shall be the owner of the building by principle of superficies solo credit, subject to a real action available to the owner of the materials for the recovery of their value.

4. Mixture of things - the two owners intentionally mix their materials, ownership belongs to them in common. If accidental – if it can be reduced to its original nature, the material belongs to the owner, subject to the right of the maker to be compensated. If it cannot be reduced, it belongs to the maker, subject to the right of the owner to be compensated.


B. Derivative Methods in Acquiring Ownership 1. Mancipation - A formal ceremony of transfer of

property, a symbolic act in the presence of both parties, 5 witnesses and a libripens. Applies to certain things only, which includes lands and slaves.

2. Jus Jure Cessio – a fictitious lawsuit where the transferee claimed before the praetor to be the owner of a res. The transferor admits the claim, and the praetor adjudges the ownership to the transferee.

3. Traditio - an owner of a corporeal thing transfers to his ownership to another.

Elements: a. transferor is the owner b. must place the legal possession to the transferee c. Intention of passing the property d. transferee must have the intention to become the owner.

4. Donation (De Donationibus) - A mode of transferring property by gift.

From: Dono – signifies that the whole property was passed by delivery Dare – expressing the mode thereof Two Kinds of Donation A. Donation Mortis Causa - is a donation made in contemplation of death - takes effect only upon the death of the donor and that it is recoverable anytime before his death. B. Donation Inter Vivos - one which takes effect during the lifetime of the donor - Under the old law, mancipium was necessary if the thing donated is a res mancipi. - If the object was res mancipi, traditio was enough.

5. Thesaurus – ownership over buried treasure. If a buried treasure was found by a man on his land, he becomes the owner of that property. The same rule applies if the treasure was found in a sacred or religious place provided that it was not through express search. If the treasure was found in the land of another, half goes to the finder and the other half to the proprietor. The same rule applies if the treasure was found in a public property.

6. Usucapion - a mode of acquiring ownership through continuous and uninterrupted possession for a length of time which eventually ripens into legal dominium.

Requisites: a. The thing should be susceptible of being held in dominio. b. The thing must be possessed ex justa causa.

Ex justa causa – it must have come into the power of the possessor by some recognized legal mode of acquisition. c. The possession must be in good faith. *Usurpatio - interruption of usucapion Period of usucapio: later law – 10 years if in the same province; 20 years if in different provinces for immovable under Justinian – 3 years was sufficient for movables

7. Praescriptio (possessio longi temporis) – Under the praetorian period, it is similar to Usupacio, but is applicable only to provincial lands.

8. Adjudicatio - in an action to divide an inheritance or property owned in common, the order of the court conveys the res adjudged to each claimant.

9. Lex – ownership transferred by virtue of statutes.

IV. SERVITUDES

The Right Of Ownership Over Things Divisions: 1. Jura in suaere - is a right exercised by an individual over his own property 2. Jura in re aliena - is a right exercised by a person over the property of another In Jura in re aliena, there are:

Servitudes - certain portions of the right of ownership separated from the rest, and enjoyed by persons other than the owner of the thing itself. Classifications of Servitudes A. According to manner of exercise. a. Positive – where the person entitled to the right could do something over the servient property. For example, right of way (iter). b. Negative – where the person entitled to the right could prohibit the owner of the servient property from doing something which he could perform without servitude. An example is easement of light and view. B. According to the nature of the right of the service. a. Praedial or real servitude – is a right charged on an estate for the benefit of one estate belonging to another proprietor. - either rural or urban

Iter - is the right of passage for a man on foot or horseback over the servient estate

Actus – includes the right of driving beasts or vehicles.

Via – is the right of passage, of driving beasts, vehicles, dragging stones over timber and of walking.

Aquaeductus – is the right to conduct water through the land of another.


b. Rural servitude – include right to draw water, watering of cattle, feeding of cattle, digging sand, or to burn lime.

Urban servitudes – those established in towns or cities.

Oneris ferendi – the right to place the weight of a house on the adjoining house

Tigni immittendi – the right to insert a beam thru or upon a neighbor’s wall

Stillicidii vel fluminis recipiendi – the right to let rain fall from one’s roof upon the roof or adjacent land of a neighbor.

Altius non tollendi – the right to prevent an adjoining owner from erecting edifices which would impair light and view

Servitude ne luminibus officiatur– prevented the res serviens from doing anything, whether by building, planting or any other means, whereby the light was intercepted from the house.

Servitude no prospecfui offendatur – prevented a neighbor from doing anything that would make the view from the house of the res dominans less pleasant and open

Ius lumindean – obliged a neighbor in building a wall to leave apertures through which we can look beyond.

c. Personal Servitudes – right attached to the person

entitled to it. Personal Servitudes include: Usufruct ( de Usufructu) - right to use and enjoy things movable or immovable belonging to others, provided the substance of the things used remains unimpaired Usufructuary – person to whom the usufructis was given Rights of a Usufructuary a) Jus Utendi- to make every possible use of the thing apart from consuming it b) Jus Fruendi- taking all the fruits of the thing Servitudes may be created by: 1) Testament 2) Agreement of the parties ( stipulation ) 3) Judicial decree for the division of inheritance ( adjudication ) 4) Law ( lege ) 5) Continuous and uninterrupted possession of the right ( praescriptio ) 6) Transfer of ownership accompanied by reservation of servitude ( deduction ) Termination of Usufruct: a) Death or capits diminution b) Non utendo per modum et tempus- non usage of the right agreed on by the parties or the time fixed by law c) Domino cedatur- surrendering the right to the owner

d) Consolidation- acquiring naked ownership of the whole property when the naked and beneficial ownership have been consolidated e) If the object of the usufructuary is consumed, perished or suffered substantial alteration f) Expiration of the period or the accomplishment of the condition set

V. PLEDGE (Jus Pignoris) Pledge is the right given to the creditor over a thing belonging to another in order to secure the payment of a debt.

If the debtor satisfied the debt on time, the property pledged was returned.

If the debtor failed to pay within a specified period, the creditor had the right to sell or pledge the thing and satisfy his own claim from the proceeds or be constituted as the owner of the thing if there was no purchaser.

VI. MORTGAGE The debtor retains the possession of the thing given as a security for an obligation. General Rule: power of alienation over a thing belongs to the owner. Exception: Tutors and curators – may alienate the goods of their pupils and of those committed to their care.

WILLS & SUCCESSION (De Testamentes Ordinandis)

SUCCESSION - means the replacement by one person of another individual in his property, rights & obligations TESTAMENTARY SUCCESSION - means the succession by means of a will or testament. I. TESTAMENTS - means the last declaration in the form and manner required by law of one’s will regarding that which he wished to be done after his death.

A. ORDINARY KINDS OF TESTAMENTS a. Galatis comitiis b. Procinctum factum c. Per aes et libram d. Praetorian testament e. Tripartium B. SPECIAL KINDS OF TESTAMENTS a. Military will (De militari Testamento) b. Testamentum in tempore pestis

- made in times of pestilence c. Testamentum in ruri conditum - made in the rural areas d. Parentis inter liberos - made by a father in favor of his child


II. CAPACITY TO MAKE A WILL TESTAMENTI FACTIO – capacity to make a will, to receive under a will or to be witness to a will. A. PERSONS INCAPACITATED TO MAKE A WILL a. Slaves b. Captives c. Persons who suffered the maxima or media capitis diminution d. Foreigners e. Deaf & dumb f. Blind men g. Women h. Madmen i. Persons under the age of puberty j. Prodigals k. Persons made intestabilis for a crime committed or those condemned to infamy for grave offenses B. PERSONS WHO CANNOT TAKE UNDER A WILL a. Foreigners b. Women c. Uncertain persons d. Children of persons convicted of treason, apostates and heretics e. Children of parties to prohibited marriages C. PERSONS WHO CANNOT BECOME A WITNESS TO A WILL a. Slaves b. Persons in the same family with the testator c. Person as instituted as heir, in subjection to him, his father, in whose power he is, nor his brother under the power of the same father d. Persons under the age of puberty e. Deaf & dumb persons f. Interdicted prodigals g. Intestabilis III. FORMS OF WILLS Testaments may be written upon tablet, paper parchment or any other substance. IV. INSTITUTIONS OF HEIRS - means the act by which the testator designates his heir who is to carry on his legal existence after his death.

KINDS OF HEIRS a. Necessarii

- the slave instituted by his own master and gives his freedom.

b. Sui et necessarii - the descendants of the testator in his power at the time of his death.

c. Extranei or stranger heirs - are subject to the power of the testator and can refuse to accept the inheritance.

V. SUBSTITUTION - is the designation of an alternate heir in case the first one did not take under the testament.

A. ADVANTAGES OF CO-HEIRS BY BEING SUBSTITUTED TO EACH OTHER a. In the case of substitution, if the heir does not take, the substituted heir has the liberty of choice of taking the vacant share. b. The surviving co-heirs might possibly gain by not having to share with the representatives of the deceased heirs. B. RULES OF SUBSTITUTION a. If a testator having instituted several heirs with unequal shares, substitutes them reciprocally, the one to the other, and makes no mention of the shares they are to have in the substitution, he is considered to have given the same shares in the institution. b. If a co-heir is substituted to any instituted heir, and a third person to that co-heir, the third person should be admitted to the portions of both without distinction. c. If a testator institutes the slaves of another as his heir under misapprehension that this slave is a pater familias, and later substitutes another in his place, then if the slaves enter upon the inheritance at the command of his masters, the substituted person would be admitted to apart. The park which each took was one-half of the inheritance. Substution pupillaris is where the testators appoints a substitute for a child below the age of puberty in case the latter should die before reaching that age. Quasi-pupillaris VS Pupillary substitution VI. INVALIDATION OF TESTAMENTS A testament duly made remains valid until it is either revoked or rendered ineffectual. VII. DISINHERITANCE Suus heres – forced heirs CAUSES THAT MAY DISINHERIT A SUUS HERES a. Wrong committed against the testator b. Acts of personal unworthiness VIII. LEGACIES (De Legatis) - part of the inheritance which the heirs is enjoined to pay or give over to a third person. A. FOUR KINDS OF LEGACIES a. Per vindicationem – real effect b. Per damnationem – compulsory effect c. Sinendi modo – heir is obliged to allow the legatee to take the thing given d. Per praeceptionem – gift is given to one already a co-heir of some part of inheritance


B. CAUSES THAT MAY FAIL A LEGACY a. By nature of legacy itself b. By nature of the testament c. By act of the testator or legatee d. If the legatee dies before the legacy is vested IX. FIDEICOMMISSARY INHERITANCE FIDEICOMMISSUM – a devise made to some person with a request annexed that he should give the property to someone who was incapable of taking directly under a will. TWO KINDS OF FIDEICOMMISSA a. Fideicommissum rei singulae b. Universal fideicommissum fidei-committeus – the person who made fideicommissum fiduciarius – the person requested to perform fideicommissum fideicommissum – the person benefited by fideicommissum X. INTESTATE SUCCESSION A. ORDER OF SUCCESSION (Under the Twelve Tables) a. Sui heredes b. Agnati proxima c. Gentiles B. ORDER OF INTESTATE SUCCESSION (Under the Justinian Law) a. Descendants, including children by adoption b. Ascendants c. Brothers & sisters of the half blood d. Collaterals which are nearest in degree e. Husband or wife f. Fiscus or imperial treasury C. SUCCESSORS BY INTESTACY (Under the law of the praetor) a. Unde liberi – children of decedent, emancipated filii- familias & adopted children b. Unde legitimi – legal heirs c. Unde cognate – derived origin from a male ancestor d. Unde vir et uxor – surviving spouse D. CASES WHICH POSSESSION OF THE INHERITANCE WAS GIVEN UNDER A CLOAK OF PROTECTION (bonorum possession) a. Secundum tabulas – in accordance with the will b. Contra tabulas – contrary to the will c. Intestati – with regards to intestacy Addictio bonorum libertatis causa – mode of succession whereby a former slave applied for the possession of the goods of his former master in case nobody accepted the inheritance of the latter.

TWO PURPOSES OF ADDICTIO BONORUM LIBERTAIS CAUSA a. To spare a bankrupt master the indignity of having goods sold in bankruptcy b. To give effect to the dispositions of the master’s testament Bonorum venditio – mode of succession in which an individual could be granted the possession of the estate of the bankrupt by purchasing the same at public auction and undertaking to satisfy the claims of the creditors. XI. EFFECTS OF ACQUISITION OF A HEREDITAS a. The heir become the same person as the deceased b. The heir becomes debtor in the deceased’s obligations except those which are personal in nature. c. The heir to the successor of a bankrupt estate has to meet the debts in full out of his own funds.

OBLICON

OBLIGATION (De Obligationibus)

- Juridical or legal tie by which we are so constrained that of necessity, we must render something in accordance with the laws of our State

Classification:

1. According to law recognizing them: a.) Civil or those constituted by civil laws b.) Praetorian or honorary – established by the

decree of the praetor 2. According to saction:

a.) Natural or moral b.) Legal

3.) According to source:

a.) Excontractu – derived from contracts

b.) Quasi excontractu – derived from quasi contracts or voluntary acts of man

c.) Ex maleficio – arise from delicts or crimes

d.) Quai ex maleficio – derived from quasi delicts or torts

Obligatio – could be enforced by an action that the tie was binding on the person bound in favor of the creditor.

- tie between debtor and creditor with regards to the right thus gained, duty thus owed, mode by which it was created

Solvere – term used where the debtor is bound to render


3 Kinds:

a.) Dare – to give the property in a thing or the possession of it

b.) Facere – doing of something c.) Praestare – making good as the person

guilty of fault or negligence; obligation of restoring goods taken by delictual act

Sources of Obligation:

- Contracts and Delicts (Main) - Quasi Contractus and Quasi ex delicto

(Additional)

CONTRACT (Ex Contractu)

- Species of agreement, manifested in the legal form, by virtue of which a person binds himself in favor of another, or reciprocally to the fulfillment of a prestation to give, to do or not to do.

- Requires the presence of object, causa and consent 1.) Politicatio – offer made by one party and

the acceptance by the other 2.) Vinculum Juris - accord of wills that should

be expressed in a particular manner Ex: Nexum – form of conveyance by scales and copper which is the only mode of contract in the old law

Three Recognized Forms of Making Contracts

1.) Verbis – stipulation which the agreement was perfected by a formal question followed by a corresponding formal answer

2.) Litteris – perfected by the making of a formal entry in a ledger

3.) Re or real – perfected by mere delivery like commodatum, mutuum, depositum, or pignus

4.) Consensu – perfected by mere consent of the parties in contracts like sale, letting in hire, partnership and mandatum

Classification of contracts:

1. Effect: Unilateral – obligation upon only one party Bilateral – obligation on both parties

2. Designation Nominate – properly classified and designated with names Innominate – do not take any form recognized in civil law

a.) Do ut des b.) Do ut facias c.) Facio ut des d.) Facio ut facias

3. Manner of perfection a.) Verbis – perfected by verbal

question and answer b.) Litteris – making formal entry in a

ledger

c.) Consensu – perfected by mere agreement

d.) Re – delivery of a thing 4. Consideration

a.) Gratuitous – object is the benefit of the person with whom it is made, without any profit or advantage received

b.) Onerous – both parties share the burden

c.) 5. 5. Execution

a.) Executed – transaction is competed at the time of the contract as in a purchase and sale where the object was delivered and the price paid

b.) Executory – some act remains to be done at the time of perfection

Natural Obligations – no legal action was attached but moral claim was involved and cannot be sued back when voluntarily done

Stipulations (De verboriim obligatione)

- Means of making a contract in which a solemn form of question and answer was uttered

- Only bound one party, the maker of the promise and the remissor had to receive the promise in order to secure a reciprocal right

- Maybe made subject to a penalty stipulating that something shall be done or not be done, otherwise the promisor slave will be given by way of penalty

- May either be judicial or praetorian, conventional or common, or both a.) Judicial stipulation – proceed exclusively

from the office of the judge b.) Praetorian stipulation – proceed

exclusively from the office of the praetor as the giving security against fraud, or engagement to pursue a fugitive slave or pay his price

c.) Conventional- made by the agreement of the parties

d.) Common – providing for security of the property of the pupil under guardianship

Kinds:

a.) Simple or pure – no condition was imposed b.) Conditional – depended on the happening of

the condition c.) With a term – fulfilled upon the termination of a

period

Causes for invalidating contracts

1. On account of their object – stipulates for a thing which does not or cannot exist. Applies if the thing is not within the commerce of man, such as sacred or public things appropriated for public use. Remedy can be invoked against the seller who stipulates contract not within the commerce of man

2. On the account of persons by whom it is stipulated


3. On the account of persons for whom the stipulation is made

4. On account of persons between whom the stipulation is made

5. On account of the manner which they were made

6. On account of the time 7. On account of a condition

Literal Contracts (Litteris)

- Originated in a certain entry or statement of it being made in books of the creditor with the consent of the debtor

Forms:

1. Transcriptio a re in personam - something already owed, the debtor assented to the creditor making an entry of the debt. Iiiis operated as novation of an old debt,and the creditor could ring an action to enforce his claim.

2. Transcriptio a persona in personam – one took on himself the debt of another

Real Contracts - perfected by the delivery of the thing

Kinds:

1. Mutuum – loan on consumable goods, in which the equivalent of he thing lent must be returned (e.g. wine, silver, gold)

2. Commodatum – loan for use whereby the thing lent must be returned. It is gratuitous. Otherwise, it becomes locatio.

3. Depositum – one person delivers a thing to another for safekeeping where depositary is liable for the loss or deterioration of the thing deposited

4. Pignus or pledge – contract where one person delivers a thing to another as a security for a debt. The thing is returned upon the debt paid on time, otherwise, creditor can sell it and apply proceeds thereof to satisfy obligation.

Consensual Contracts (De Consensu obligatione)

- perfected by mere consent

1.) Emptio et cendetio – purchase and sale 2.) Locatio et conduction – contract of letting and

hiring 3.) Societas or partnership 4.) Mandamus or Mandate

Purchase and Sale (Emptio et vendetio )

- One person binds himself to deliver a definite thing to another for a price certain in money

- Essential elements are consent of parties, definite thing to be sold and price fixed

- Contract is complete when the price has been fixed but the seller retains ownership (dominus) until he delivered it to the buyer having paid the price or security thereof

- Fixed price must consist in a sum of money, otherwise it will be an exchange

- Void when a person knowingly purchase a sacred or religious place, or a public place

Seller - Restore double if he refuses to fulfill the

obligation - Bound to recompense the buyer if disturbed by

the real owner of the thing - Obliged to secure buyer against secret faults - Bound to preserve the thing as a good father of

the family

Buyer - If faults were discovered, he has the option to

a.) Reduction of the price according as the seller had or had no knowledge of the defect

b.) Action for Rescission with the return of the thing

- Bound to pay the price and the interest from the day when he had received the thing sold

- If the thing is lost by accident or third person, the loss fell on the buyer and not on the seller but the price fixed will remain due and cannot be altered

Letting and Hiring (Locatio et Conductio)

- Perfected as soon as the amount to be paid for hiring has been agreed

- Letter has an action of locati, the hirer an action conducti

- Complete by mere consent of the parties and produces personal obligation and not real rights

- Dominus remained with the letter - Price must be in money, otherwise it will be

considered an exchange Kinds:

1.) Locatio conduction rerum

- One person lets a thing and the other hires it 2.) Locatio conductio operarum

- One person lets his services and another hires them without reference to object of which the services are to be performed

3.) Locatio conduction operis faciendi

- One person puts out a particular piece of work to be done, and other contracts to do it

4.) Carriage by sea - Execritor navis takes the job of carrying goods

of more than one shipper Elements of Locatio Conductio:

1.) Thing or service to be let 2.) Price or consideration for the letting (mercer or

protium) Letter (owner / locator)

- Obliged to guarantee the hirer against eviction, and reimburse him for any useful or necessary expenses he had incurred

- Risk of fortuitous event is borne by him


Hirer (conductor) - Does everything according to the terms of the

hiring - Supplies according to the rules of equity if

anything was omitted - Succeeded by the heirs when he dies except in

locatio conductio where the personal services terminated

Cause of Termination

1.) Sale of the thing hired in location conduction rei

2.) Rent was two years in arrears or thing was grossly misused

3.) If locator has indispensable need for it 4.) If conductor was prevented from getting benefit

from it, as by armed force Partnership (Societas)

- Two or more persons contribute, res corporalis or service for a common purpose with the intention of dividing profits among themselves

- Absent stipulation, share on gain or loss are equal subject to qualification that a party gets greater share if he has given more than the other

- Void if one party is totally excluded from gain - Third person may sue all partners if they could

show that they have benefited by the contract Kinds:

1. Societas universarom bonorum

- Everything belonging or accruing in any way to each partner is held in common

- Property acquired afterwards had to be delivered to the partnership

2. Societas univesarom quae ex quaestu veniunt

- All things which are gained or acquired by each partner thru the business belong to the partnership except inheritance or legacies

3. Societas negotiationis alicujus - Partnership is formed to carry on a particular

business 4. Societas vectigalis - Farming of one or more branches of public

revenues 5. Societas rei unius

-one or more particular things are held in common

Mandatory - Anyone who acts in behalf of the rest, and

empowered to act as to their express desire (mandatum)

- Has an action against them for expenses and losses he incurred

Causes for Dissolution

1. Renunciation or withdrawal of one of the partners

2. Death or incapacity - Even if there are more than two partners, death

of one will dissolve the partnership unless contrary stipulated

3. Purpose has been accomplished or subject matter ceased to exist

4. One party compels dissolution by action 5. Expiration of the period 6. One partner borne down by the weight of his

debts, make accession of his goods, and his private property to satisfy his debts

Grounds for filing action against a partner: 1. Action pro socio - Enforcement of accounts, compensation for

losses or for dissolution of partnership 2. Action on a delict committed by any of the

partners 3. Actio communi dividundo - To secure partition of the partnership property Action pro socio

- Action for malicious wrong, negligence and carelessness

Mandatum (De Mandato)

- Had three concepts in roman law ( agency, suretyship or assignment)

Agency -contract whereby one person at the request of another gratuitously undertakes to perform some service for him Suretyship

- Mandator asks the mandatory to enter into contract of loan with a third person

Assignment

- One person grants to another the right to bring suit in court

Five Modes of Mandato 1. Sua- for the benefit of the mandatory only 2. Sue et tua – for the benefit of the mandator

and mandatory 3. Aliena – mandate for the benefit of third

person 4. Sue et aliena – benefit of the mandator and

third person 5. Tua et aliena – benefit of the mandatory and

third person Mandatum

- Discharge of an office of friendship - Always necessarily gratuitous, mandatory

obliged to bestow on it the care of the most diligent paterfamilias, and if he failed to discharge the trust, he maybe condemned in an action mandate

Mandatarius

- Obliged to discharge their reciprocal duties and compelled to account for, all they received, and to pay over the profits to the mandatory

- Must not exceed the limits of the mandate Mandator

- Obliged to reimburse with interest the mandatarius for all the expenses incurred, to indemnify him for all the losses


Mandate - Extinguished if before it is executed, the

mandatory or the mandator dies - Valid if after the mandatory dies, the mandatory

not knowing of his death, executed the mandate, but it can be revoked anytime

- Once accepted, it must be executed or else renounced to permit the mandatory to carry his purpose by himself or by another person

Honorarium

- Mandator’s offer of a reward in gratitude for one’s service

- Cannot be subject of an action Salarium

- Recompense offered to those who exercised their liberal profession such as philosophers, rhetoricians, physicians, and advocates

- Cannot be subject of an action QUASI CONTRACTS (obligation quasi ex contractu)

- Licit and purely voluntary acts which author becomes obligated to a third person and sometimes reciprocal obligations between interested parties spring therefrom

- There is no agreement but the person is placed in a circumstance that through justice and equity he is bound

Kinds: 1. Negotiorum Gestio - Person manages the affairs of another in his

absence, without the authority of the latter, both have the reciprocal actions negotiorum gestio

- Employ exact diligence as he employs in the management of his own affairs

2. Tutor’s right to be reimbursed for expenses against his pupil, as well as the right of the pupil to have an accounting of the guardian’s management are both based on quasi contracts

3. If a thing is owned in common by two or more persons, not partners, then each of them has an obligation to give an account of the profit which he alone has received and demanded reimbursement for expenses incurred.

4. The acceptance of the inheritance imposed on

the heir the obligation of carrying out the wishes of the testator like delivery of legacies.

5. Solutio Indebiti - A person received money not due, but paid by

mistake and received in good faith, was bound to repay the same.

Obligation ex delicto

- Obligation arise from wrongdoing that serves as a penalty and not a compensation

Delict

- Wrongful act committed by one person against another, a right violating in rem of a person

- There must be an overt act violating a right in rem, done with evil intent or negligence

Kinds:

1. Theft (Furtum) - From the word furvum or act committed

secretly at night - Actual touching or seizing of a movable thing

with evil intent contrary to the wishes of the owner

- Any person may be liable as long as he lent his aid or planned the crime

- Action for theft maybe brought by any person interested in the safety of the thing

Two kinds of theft: a.) Furtum manifestum - Thief was caught in the act or in the place

where the crime was committed - Penalty is four times the value of the thing

stolen - Death penalty if the thief is a slave ( Law of the

Twelve Tables)

b.) Furtum nec manifestum - Thief was able to take the thing stolen to its

destination - Penalty is double the value of the thing

Two kinds of furtum according from the Twelve Tables

a.) Conceptum furtum – thing lost was sought and found in the presence of witnesses in one’s house, making the owner of the house liable for action concepti

b.) Furtum Oblatum – thief placed the thing stolen into one’s house

- Thief and those who assisted him are penalized Robbery

- Taking away of the property of another by force or intimidation

- Action brought (w/n 1 year) against the robber is vi bonorum raptorum

- Penalty is three times the value of the thing stolen

Damage to property (damnum injuria datum)

- Damage caused the property of another either wilfully of through negligence, established by Lex Aquila

- A person who kills another by accident without any fault on his part is not liable

2. Injury to persons (injuria) - Unlawful violation against the reputation and

safety of a free man - Committed not only when someone is wounded

but also when there is a public insult written, composed and published as defamatory verses, or has attempted chastity of anyone

- Actionii could be brought as an action for the injury

- The gravity of the act is determined by the nature of the act, place and social standing of the person


Three special senses: a.) Wrongful act ( nulle jure) b.) Fault committed by a judge who gives

judgment not according to law c.) Outrage or affront

Remedy of the injured party

- Civil action ( sum estimated which constitute the penalty)

- Criminal action ( judge inflicts an extraordinary punishment)

Kinds of Delicts

1. Dolus or Fraud

- Any act that transgressed honest and fair dealing

- Craft, deceit or machination intended to circumvent another

2. Metus - Duress imposed upon the person to force him

to enter into transaction - May cover any kind of mental compulsion on

account of immediate danger 3. Servi corrupti - Willful corruption of a slave of another. It can

be moral. Quasi- Delict Obligation

- It is not the doer himself that is punished but someone who stands in a peculiar relationship to him Ex: quasi delict committed by a judge qui litem suam facit -committed through favor, corruption or fear, or even ignorance of the law

Kinds of Quasi Delict

1. Dejectis et effuses

- householder liable for any damage caused by anything thrown or poured out of his house where injured party can recover double damages.

- Quasi ex maleficio if the offender occupies an apartment, a proprietor, or a hirer

-

2. De positis et suspensis - Person keeps or suspends from a building, and

it falls to anyone passing by is liable for ten aurei

3. Quasi ex maleficio

- Master of a ship, inn or stable is liable to the traveler for any damage, loss or theft

- Recover double damages

4. Noxae deditio - Person injured by a slave or filius has an action

against the mater or pater

Culpa, dolus and diligentia Dolus

- a person who is bound to another by a contract was subjected to harm with respect to anything included in the contract

Dolum

- a person is the cause of the injury not intentionally inflicted unless it was a result of unavoidable accident

Degrees of Culpa Lata culpa – any man would have scrupled to commit

- undergoes a slight degree of responsibility ( grave fault)

Dolus – extreme negligence due to design, or consist in falling short of the high standard of carefulness to avoid injury Levis – carefulness employed in the management of affairs by a person who deserves to be bonus paterfamilias Culpa levis- used as much care as he does about his own things Mora (Delay)

- subject a person to something more than the fulfillment of the contract

- makes a person liable to pay for interest on express agreement

Effects of Mora 1. Risk passes to the creditor 2. Creditor is liable for the cost of the upkeep of

the res 3. Any mora of the debtor is extinguished

Extinguishment of the Obligation:

1. By contractius actus - Reversal of the process which resulted in the

formation of the juridical tie 2. By performance - Payment or performance 3. By novation - Substitution, change or renewal of an obligation

or obligatory relation - Subrogatio, conversion of existing obligation

between the same parties or the substitution of a new creditor

4. Subsequent impossibility without the debtor’s fault

5. By prescription 6. Obligation arising from delicts discharged by

pardon 7. Death when obligation is purely personal 8. Merger or confusion or set off 9. Litis contestation and res judicata - Judgment has been given on the obligation - Cause of action, parties and subject matter are

the same, and judgment final 10. Pact or agreement not to sue a delictual

obligation


Natural Obligations

1. Debt of a slave to another person 2. Obligations between pater and any member of

the family 3. Loan to a filius familias 4. Debt of a pupil without authority of the tutor 5. Debt of a person who was reduced to capitis

diminutio 6. Nudum pactum to pay interest

ACTIONS (De Actionibus)

I. CIVIL PROCEDURE Action is the right of suing before a judge for that which is due a person. Through three principal systems known as Legis actiones the Roman law procedure to enforce legal rights has been developed. Legis Actio – characterized by rigid ritualism with religious significance. Two Parts: 1. In Jure- stage characterized by ritualism under the control of a magistrate 2. Iudex – Stage under the control of a fact finder who received the evidence from the parties KINDS OF ACTIONS I. As to basis: a. Actio in rem (real actions) – a person claims against the world, a thing corporeal or incorporeal as his. Example: An action to enforce a right to a servitude or ownership thereof. - A real action is one where the plaintiff seeks the recovery of real property or, as indicated in what is now Rule 4, Section 1 of the Rules of Court - An action affecting title to or recovery of possession of real property. - An action for quieting of title to real property. - Article 1141 NCC plainly provides that real actions over immovables prescribe after thirty years. - Section 1, Rule 4 of the Rules of Court states the venue of real actions.

Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.

Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated.

b. Actio in personam (personal action) – brought against a particular person by virtue of his liability on an obligation. Example: Personal action based on contract

- Sec. 2, Rule 4 Rules of Court Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any

of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. c. Mixtae (Mixed action) – partly real and partly personal Some real actions are the ff: 1. Vindicatio – where one asserted or vindicated his title as against the whole world. 2. Actio confesoria – an action bringing a claim as to the existence of servitude and seeking its enforcement. 3. Negutoria – an action brought by an owner of a property for the purpose of reclaiming servitude over it. 4. Petitio hereditatis – an action claiming his inheritance. FIVE KINDS OF REAL ACTIONS INSTITUTED BY THE PRAETOR 1. Accion publiciana or plenaria de posesion – as for example when an individual exercising usurcapio has lost possession, he was allowed by praetor to file a suit as if continuity has never been broken. - Action first decreed by praetor publicius - [Is also used to refer to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty. - Jurisdiction over an accion publiciana is vested in a court of general jurisdiction. Specifically, the regional trial court exercises exclusive original jurisdiction "in all civil actions which involve x x x possession of real property. G.R. No. 139561, Galdiano vs Valdez] * Rescissoria – converse of action publiciana - The praetor allowed the owner to rescind the usupacio and to claim the thing by feigning that the usupacio had not been perfected. 2. Actio pauliana – an action to rescind a sale of property made for the purpose of defrauding creditors. - it has a counterpart in the RPC called “fraudulent insolvency”. - [an action to rescind or an accion pauliana must be of last resort, availed of only after all other legal remedies have been exhausted and have been proven futile. - For as long as the creditor still has a remedy at law for the enforcement of his claim against the debtor, the creditor will not have any cause of action against the creditor for rescission of the contracts entered into by and between the debtor and another person or persons. For an accion pauliana to accrue, the following requisites must concur: 1) That the plaintiff asking for rescission has a credit prior to, the alienation, although demandable later; 2) That the debtor has made a subsequent contract conveying a patrimonial benefit to a third person; 3) That the creditor has no other legal remedy to satisfy his claim, but would benefit by rescission of the conveyance to the third person; 4) That the act being impugned is fraudulent; 5) That the third person who received the property conveyed, if by onerous title, has been an accomplice in the fraud.


- An accion pauliana presupposes the following: 1) A judgment; 2) the issuance by the trial court of a writ of execution for the satisfaction of the judgment, and 3) the failure of the sheriff to enforce and satisfy the judgment of the court. It requires that the creditor has exhausted the property of the debtor: The date of the decision of the trial court is immaterial. What is important is that the credit of the plaintiff antedates that of the fraudulent alienation by the debtor of his property. After all, the decision of the trial court against the debtor will retroact to the time when the debtor became indebted to the creditor. (G.R. No. 144169, Cheng vs CA)] 3. Actio Serviana – was brought to get possession some properties of a farmer which are held as pledge to secure the rent of the land. - A suit may be commenced for the stock and cattle of a farmer, which are obligated as a pledge for the rent of the ground which he farms of his landlord. 4. Actio quasi-Serviana – an action where creditors for things pledged or mortgaged to them. - There is no difference between a pledge and a hypotheca, for the two terms are indifferently applied to anything which both the creditor and debtor agree shall be bound as security for the debt. * Pledge is applied to movables and actually delivered to a creditor. Article 1274 NCC – refers to pledge. It is considered as a real contract. It is not valid unless the thing pledged is delivered and placed in the possession of the creditor, or of a third person by common agreement. * Hypotheca is applied to anything bound by simple agreement without delivery. PRAETOR ALSO INTRODUCED THE FOLLOWING ACTIONS: 1. Actio de constituta pecunia – was given to enforce the pact made for the payment of a sum already due. - Originally, this action was applied only to things which could form the subject of mutuum. - It was a pact and gave rise not to a defense, as most of the pacts – simple contracts – but to positive right of action as the most formal contracts. - It seems to have been one of the most important contracts among the Romans 2. Actio receptititia – an action given against bankers (argentarii) who promised to satisfy the demands of a creditor of one of their customers. - The creditor made the banker set a date for payment of his claim. - It was a remedy for an ancient contract, couched in formal terms and confined to contracts with a banker, when he had made e.g. a promise to pay a sum of money, or deliver something else to a customer on a day named – e.g. had accepted a bill for a customer. 3. Actio de peculio – an action against fathers and masters who are liable to the extent of the peculium of their sons in potestae or slaves for the obligations they have contracted.

- Although the contracts are without the consent of their fathers or masters yet they have profited from them, or even if they have not profited they are liable up to their peculium. 4. De Jure Jurando – an action for the purpose of ascertaining whether a party to a suit, when challenged to do so, had sworn that the facts on which he predicated his claim or defense were true. - Either party may challenge the other to swear to the truth of his statement. - this might be done out of court, and if the party challenged took the oath, his statement could no longer be impugned by the person who had challenged him. II. As to origin 1. Civil which arise jus civile.

1) It is used in contradistinction to barbarous or savage, to indicate a state of society reduced to order and regular government; thus we speak of civil life, civil society, civil government, and civil liberty.

2) It is sometimes used in contradistinction to

criminal, to indicate the private rights and remedies of men, as members of the community, in contrast to those which are public and relate to the government; thus we speak of civil process and criminal process, civil jurisdiction and criminal jurisdiction 2. Praetorian – were enforceable by magisterial decree. The praetor also introduced some penal actions by

virtue of their jurisdictions, as for example:

Action against a person who has tampered with the praetor’s album or against those who summon patrons or ascendants without obtaining previous permission;

Against those who carry away by force anyone summoned to appear before magistrate, or fraudulently induces a third person to carry him off.

Prejudicial actions seem to be real actions with the object of establishing a fact which was a necessary preliminary to further judicial proceedings.

- they resemble actions in rem because they were not brought on any obligation.

- Examples: it is inquired whether a man is born free; or has been free; or he is the offspring of his reputed father.

- Common subjects of this action are: status, such as those of paternity, filiation, and patronage.

III. According to the powers given to the judge 1. Bona fidei – where the magistrate determined the rights of the parties on the light of equitable consideration.

a) empti and venditi in purchase and sale; b) locati and conducti letting and management of

the affairs of another without agreement; c) negotiorum gestorum in negotiorum gestio;

- Management of the business of another. Under this principle, a party who voluntarily takes care of the affairs of another person, without any express or implied authority from that person, may claim reimbursement of his necessary and


useful expenses, whether he has been successful or not. Negotiorum gestio is therefore the likely origin of the concept of salvage (infra) in Maritime Law.

- In the NCC (Art. 1160), Negotiorum gestio is one of the kinds of quasi-contracts. It is the voluntary management of the property or affairs of another without the knowledge or consent of the latter.

- It explicity covers abandoned or neglected property or business.

d) Mandati in mandatum – to do an act for another e) depositi in deposits f) pro socio in partnership g) tutelain tutorship and guardianship h) commodati in commodatum i) pigneraticia in pledge j) commum dividundo in diviosn of properties owned in common k) hereditatis petition in recovery of inheritance l) familia erscisundae in partition among heirs Principal effects of this form of action are: a) All circumstances tending to show bad faith were

taken into consideration; b) Customs and common sense were also

considered in the determination of the decision of the judge;

c) The judge may notice any counterclaim that the defendant might make arising out of same transation.

2. Stricti juris – where the parties were bound by means of a stipulation to the strict performance of their corresponding obligation. - strict construction and interpretation of the formula was required - The judge was obliged to adhere strictly to the principles of civil law - Dolus malos or counterclaims could not be considered 3. Actiones arbitrariae – where the magistrate issued an order with defendant to do something or make the restitution. - it appeared in both real actions and personal actions, as, for example the action doli where restitution is demanded - If the defendant does not, on the order of the judge either restore, exhibit, or pay the thing, he ought to be condemned IV. As to form 1. Directa where the intention of the formula appeared in its original form as set out in the law creating it or in the edict of the praetor 2. Utilis where the magistrate alters the terms of the formula in order to suit the facts of the case V. As to object to be recovered 1. Simplum – if the value of the thing in litigation is what claimed for 2. Duplum – if the value of the sought to be recovered is twice that object in litigation. - Example: an action of theft not manifest 3. Simple value is sued for in contracts of mutuum or sale

4. Persequendae causa – where the plaintiff seeks to recover a definite thing 5. Persona Persequendae causa – if the plaintiff seeks the imposition of a penalty upon the defendant 6. Action mixtae – if both the recovery of the thing and the imposition of a penalty upon the defendant were sought VI. As to liability 1. Directa – brought against a person on the basis of his personal liability 2. Adjectitia qualitatis – brought against an individual by reason of a liability caused by a person related to him

o Noxale action – the wrongful acts of a slave if he commits robbery or theft or does any damage in which his master of the slave may pay the damage or deliver up his slave as noxa

3. De pauperis – action against the owner of an animal that caused damage VII. As to prescription 1. GR: That the action arising from tge old civil law, the Senatus consultum or the constitution were perpetual – there was no limit to the time which they ought to be brought. 2. Temporales – praetorian actions, or they were barred if not brought within a certain period. - usually, they must be brought within annus utilis ir annually (Art. 1106. By prescription, one acquires ownership and other real rights through the lapse of time in the manner and under the conditions laid down by law. In the same way, rights and conditions are lost by prescription. ) XPTNS to praetorian actions that they should be brought annually:

1) Actions given to bonorum possessor 2) To everyone placed in loco heredis 3) The praetorian action for furtum manifestum

were perpetual Exceptions (De Exceptionibus)

- Introduced as a means of defense for those against whom an action is brought it often happens that the action of the plaintiff may be unjust as regards the person against whom it is brought.

- Magistrate decided whether, on the statement of facts, the plaintiff had the right of action. Though the plaintiff might have the right to an action, the defendant might have some ground to urge why, in the particular instance, the action should be defeated. (Whatever ground, it should be distinctly stated by the defendant to the praetor.

- The defendant in making an exception was not supposed to admit the truth of the plaintiffs statement. The plaintiff had to first prove his intentio. If he proved it to the satisfaction of the judex, it was then for the defendant to prove his exception, by affirming the facts on which the exception is vested.

- Exception can be met by replication.

Justinian Period


- Res judicata or a cause already decided produced the effect of exceptio.

- In order that a res judicata should be available, it was necessary that there should have been in the former action, the same thing as the subject matter of the litigation, the same quantity, the same right, the same ground of action and the same parties.

Confesi- a defendant in action for a sum of money admitted his liability, Litis contestation- an agreement between parties to a litigation (lis) to submit their dipute to judex. This novates whatever legal relationship the parties stood in by new relationship. Plus petitio- claiming too much in amount or too soon resulted in the loss of right of action or prevented another action. Interdicts (De Interdictis)

- Preclude to an action. - Orders issued by the praetor in the exercise of

his magisterial functions, ordering or prohibiting something to be done. The praetor published a general edict stating the leading principles on which he would act.

- Employed in disputes as to possession or quasi- possession.

- Interdicts were (1) populare- applicable to anyone; and (2) privatae- appreciable only to particular persons or particular things.

- Interdicts were sometimes public in character in which the praetor stated the reason which induced him to grant them. Ex. He adopts them as a sure and speedy remedy in cases where danger was threatened to objects which the public is specially interested in to be preserved such as public roads, or sacred places.

- Interdicts are prohibitoria if they forbade something to be done. Ex. Forbidding the use of force against any person in lawful possession, or to build on a sacred place, or to do anything which may impede navigation.

- - Restitutory interdicts- those by which the

praetor orders something to be restored to a bonorum possessor.

- - Exhibitory interdicts- those by which the

praetor orders the production of a person or object. Ex. The production of the person whose freedom is being questioned, or to exhibit to the father the children under his power.

- Some interdicts were given to acquire or to retake something (acipiscendae or reciperandae) and to retain something (retinandi).

- Restitution in integrum- is an order called by a praetor after injury to rescind a transaction which had prejudiced the legal position of the applicant and to restore the former position of the parties (status quo ante). Ex. Where a minor (minoritas) has entered into a transaction which was prejudicial to him; or there was fraud (dolus) or intimidation or duress (metus), the restitution in

integrum is granted. In short, it is putting things back as they were. - It may also be granted if there has been error in procedure.

II. Criminal Procedure

- Under the republican period, the consuls took

charge of the trial of cases. Comitia centuriata- acted as court of people.

- The system of quaestio as investigation of a crime was introduced. It developed a court called quaestio pecuniae repe-tundoe composed of judges according to the number required in a particular law violated. Any citizen may appear before the quaestio to accuse a person of a crime swearing to the truth of his charge.

- Under the imperial period, the courts called judicia publica were created. In Rome, the praefectus urbis exercised plenary jurisdiction over all offenses committed within the city and suburds.

- In the province, there were also individual magistrates but there was a supreme provincial court with the governor as the presiding magistrate. In cases in the provinces, appeals were taken from the governors to the praefectus praetorio. Appeals were also made from the magistrate to the praefectus urbis and then to the emperor. In some cases appeal may be taken to the senatus.

- In order to prevent reckless or unjust lawsuits, pecuniary penalties or sometimes infliction of infamy were imposed. The plaintiff was restrained from recklessly bringing an action not only of being condemned in damages and costs but by any action of calumny. The defendant could bring an action by which he could recover one-tenth of what the plaintiff claimed, if by action, and one-fourth, if by interdict. The unsuccessful plaintiff, even if he had honestly brought the action, was made to pay a tenth of what he claimed.

- Judiciary (De Officio Judicis)

- Roman law also imposed penalties on judges who decide cases contrary to law, the constitutions or the customary usage.

- If the judge gave a sentence manifestly wrong, or if the sum was fixed in the condemnation by the praetor, but the judge condemned the defendant in a different sum, the sentence was void without any appeal being necessary.

- If the judge was mistaken, as for instance, in the mode of considering some fact, an appeal was allowed, notice of which had to be given in two days. Justinian prolonged it to ten days after the sentence.

- During imperial regime, the Emperor was the supreme judge of the appeal. However, Emperor Hadrian made appeal to the senate final.


Public Prosecutions (De Publicis Judciis) - These are actions which may be generally

instituted by a citizen. Persons who were excluded from bringing criminal accusation:

(1) when the injury complained of was done to themselves or their near relation;

(2) persons below the age of puberty; (3) Persons made infamous by a judicial sentence;

and (4) Persons so poor as not to possess fifty aurei.

- But generally, it was the right to anyone to

make a criminal charge, although he might be totally unconnected by any ties with the person who suffered from the crime.

- Some public prosecutions were capital in nature and imposed the extreme punishment of the law. Others carry the penalty of infamy and pecuniary penalty.

Lex Julia de adulteris

- A death penalty was imposed on those guilty of adultery and those who give themselves up to lewdness with their own sex. Punished also seduction.

- Lex Cornelia de sicariis

- Provides for the striking with the sworn of vengeance, murderers and those armed with a telum for the purpose of killing a man; it also punishes those who by hateful acts, use poisons or magic charms to kill men or publicly sell hurtful drugs.

- Lex Pompeia de paricidiis

- Provided that anyone who hastened the death of a parent or child, or any other relation included in parricide, and whoever is an accomplice of the crime, although a stranger is to be sued up in a sack with a dog, a cock, a viper and an ape, and enclosed within this horrible prison he is to be thrown into the sea or river.

- Lex Cornelia de falsis

- Punishes anyone who shall have written, sealed or substituted a false testament, or any other instrument, or shall have made, or impressed a false seal, knowingly and maliciously. If the the culprit was a slave, the capital punishment was imposed; if a freeman, he is deported.

- Lex Julia de vi publica seuprivata

- Punished those who are guilty of violence whether with armed force or not.

- If the violence was with arms, the penalty was deportation. If it was without arm. One-third of the offender’s property was confiscated.

- In case of rape of a virgin, widow or a person devoted to religion, ravishers and all who have aided in the crime were punished capitally.

- Lex Julia peculatus

- Punished those who have stolen public money or property or anything sacred or religious.

Magistrates who, during their time of administration, have stolen public money, and those who aided them, and who received their plunder were punished capitally.

- Lex Julia de ambitus

- Punished those who sought offices with the illegal methods.

- Lex Julia repentundarum

- Punished magistrates or judges receiving bribes.

Lex Julia de anona - Was made to repress combination for

heightening prices of provisions. -

Lex Julia de residuiis - Punished those who gave incomplete account

of misappropriated public money committed to their charge.

- Lex Julia magistatis

- Subjects to a punishment of death and of infamy all who attempt anything against the Emperor or the State. The design, without any overt act, was enough to sustain the charge.

Only the principles of Roman private law (substantive) that have largely influenced the existing law in the Philippines. The law on procedure, both civil and criminal, now enforced in the Philippines has been derived from the Anglo-American Law; hence no references have been made in the text of the chapter on the Law on actions.

But, there are several remedial actions in the Roman Law that are similar to the present procedural law in the Philippines. Among these are the actio in rem and action in personam, action publiciana, vindication, exceptions, which are similar to the grounds for a motion to dismiss, interdicts, which are similar to the rules on preliminary injunction, prohibition and mandamus, actions for partition of inheritance and property owned in common.

The criminal procedure of the Roman Law is entirely foreign to the prosecution of criminal cases in the Philippines.

God Bless!

For questions and clarifications:

Group 1 (Things)

Baccay, Batac, De Gulan, Jose, Ochoa, Ong, Punzalan, Santos K

Group 2 ( Wills and Testaments) Abao, Adalia, Ciar, Jocson, Mateo, Monzon, Regis, Resubal

Group 3 (ObliCon)

Allena, Credo, Esperacion, De Leon, Freyra, Reyes, Santos C, Tabios

Group 4 (Civil Actions) Alonso, Arsolon, Bernal, Cruz, Mones, Manding, Santos L

“There are no secrets to success. It is the result of preparation,

hard work learning from failure.”

~ General Colin Powell

Roman Philosophy- THE SUMMARY

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Transcript of Roman Philosophy- THE SUMMARY