BOOK I. Chapter II. § 31. MEANS OF ASSURING RIGHTS. In certain cases assurance of a right or of a future claim can be enforced by contract (cautio); such 'cautiones s. stipulationes necessariae' are to be distinguished from the voluntariae s. conventionales,' i.e., those which rest upon voluntary agreement. The prescription and imposition of such cautiones was vested only in the higher magistrates, especially the Praetor (praetoriae stipulationes), whose Edict contained standing formulae for them. Ulp. Praetoriarum stipulationum tres esse videntur species: iudiciales, cautionales, communes. Cautionales sunt autem quae instar actionis habent et, ut sit nova actio, intercedunt, ut de legatis stipulationes et de tutela . . . et damni infecti.-§ Et sciendum est, omnes stipulationes natura sui cautionales esse, hoc enim agitur in stipulationibus, ut quis cautior sit et securior interposita stipulatione.-D. 46, 5, 1. I pr., §§ 2, 4.' The giving of security is effected either by 'nuda. repromissio,' i.e., a promise in the form of stipulatio (verbal cautio), or by appointment of sureties (satisdatio) or pledges (real cautio). Paul. Cautum intelligitur, sive personis sive rebus cautum sit.-D. 50, 16, 188, 1.2 whatever has come to his hands, whether by purchase, or by sale, or by any other contract. 1 There seem to be three kinds of praetorian stipulations: judicial, those by way of security, and common stipulations.— § Now those by way of security are either such as have the force of an action and come in that there may be a fresh action, as stipulations about legacies, about guardianship, . . . and as to threatened injury. § And it must be known that all stipulations are essentially by way of security; for the intention in a stipulation is that a person may by the stipulation introduced be more secure and more settled. 2 By security being given, is understood that which is given either with persons or with things. The confirmation also, and further the realising (execution) of legal claims, is contemplated by the 'missiones in bona s. possessionem ;' these are such installations in the possession of the whole property or specific things belonging to another as have resulted from magisterial decree-especially as a compulsory remedy against 'contumaces.' The person installed (missus) acquires by securing possession bare, yet legally protected, detention" with the view of caretaking and a supervision, and a right of pledge. Ulp. Tres fere causae sunt, ex quibus in possessionem mitti solet: rei servandae causa, item legatorum servandorum gratia, et ventris nomine; damni enim infecti nomine, si non caveatur, non universorum nomine fit missio, sed rei tantum de qua damnum timetur.-D. 42, 4, 1.1 Pomp.: Cum bona possidere praetor permittit, non possidemus, sed magis custodiam rerum. et observationem nobis concedit.-1. 12 eod." 1 There are generally three reasons for which instalment in possession is wont to be given: for the preservation of a thing, for the preservation of legacies, and on account of pregnancy; for if security be not given on account of the threatened injury, such instalment affects not the whole but only the property in respect of which injury is apprehended. • When the praetor allows possession to be taken . . . we do not possess, but he rather grants us the custody and oversight of the property. BOOK I. Chapter II. § 74. See § 101 and comp. § 204. a Cf. Savigny, Law,' ch. v. ; Ss. 131 899. BOOK II. LAW OF PERSONS (PERSONAE').a PART I-NATURAL PERSONS. BOOK II. b Cf. note in $ 17. The offered by passage from the 'System' cited by Holland ⚫ subject of a legal relation' ing relative CHAPTER I. CAPACITY FOR RIGHTS. $32. NOTION OF PERSONALITY; BEGINNING AND END OF NATURAL CAPACITY FOR RIGHTS. EVERY right relates to a subject, who is its bearer : there are no rights without subjects. Man considered as a possible subject of rights is called a PERSON. strict definition Personality, otherwise spoken of as capacity for rights Savigny in the or subjectivity of the will, is, accordingly, the capacity recognised by Law which resides in somebody to be the subject of rights; in other words, the (p. 71) is the potential capacity of having a legal will for oneself. By nature every man is at the same time a (comprehend- Person, which is NATURAL capacity for rights: it is otherwise according to Roman Law, which annexes capacity for rights to special presumptions, called CIVIL capacity, and acknowledges men who are not Persons.d The counterpart of Person, subject of rights or of will, is formed by THING, object of rights or of will; but within the sphere of Persons there are different degrees and gradations of capacity for rights, and one person can be more or less subject to the will of another without thereby losing his character as subject of rights. On the other hand, the conception of personality has been extended beyond the range of natural Persons, so that there are subjects of rights. called JURISTIC Persons, which are not individual men ; d I.e., slaves. but here also the right concerns men indirectly, so that essentially, and in respect of its purpose, it does but serve human interests." Hermog. Cum hominum causa omne ius constitutum sit, primo de personarum statu dicemus.-D. 1, 5, 2.1 Inst. i. 2, 2: servitutes . . . sunt iuri naturali contrariae; iure enim naturali ab initio omnes homines liberi nascebantur.2 Natural capacity for rights begins with the birth of men, i.e., the complete separation of a living human being from the mother. : Ulp. Partus antequam edatur, mulieris portio est vel viscerum.-D. 25, 4, I, 1.3 This is without regard to vitality. There are, indeed, cases where it is a question of rights that belong to the child at birth, in which the Law already bestows consideration in many ways upon the embryo in the mother's womb. BOOK II. a §§ 68, sq. b Nasciturus habetur.' Paul.: Qui in utero est, perinde ac si in rebus pro iam nato humanis esset, custoditur, quotiens de commodis ipsius partus quaeritur, quamquam alii, antequam nascatur, nequaquam prosit.-D. 1, 5, 7.a Id. Quod dicimus eum, qui nasci speratur, pro superstite esse, tunc verum est, cum de ipsius iure quaeritur.-D. 50, 16, 231.5 1 Since it has been on behalf of men that the whole Law has been established, we will first speak of personal status. 2 Slavery... is contrary to the Law of Nature; for according to the Law of Nature all men from the first were born free. 3 The fruit of the body before it is born is part of the mother or the womb. * Attention is bestowed upon that which is in the womb, just the same as if it had come to life, whenever a question arises as to the embryo's own privileges, although in no way benefiting another before it is born. Our speaking of him whose birth is anticipated as though he were in existence, is correct when the question is as to his own right. M BOOK II. Part I. a See Markby, S. 132. Id.: Antiqui libero ventri ita prospexerunt, ut in tempus nascendi omnia ei iura integra reservarent, sicut apparet in iure hereditatum.-D. 5, 4, 3.a1 αι init. b ROMAN CAPACITY FOR RIGHTS. § 33. IN GENERAL. Man as such is not by Roman Law at the same time a Person; personality, rather, supposes freedom. A distinction thus arises between freemen and slaves. Not all freemen, however, enjoy like capacity for rights. Roman capacity for rights is conditional upon the possession of the right of citizenship (civitas) and by that belonging to a Roman 'familia,' which is inseparably connected with it. This embraces two constituents: 'comCf. § 79 ad mercium,' or capacity for all proprietary rights iure civili and for dealings governed by the Civil Law, and 'conubium,' or capacity for a marriage iur civ., and accordingly, for Roman family relationships. But neither is Roman capacity for rights uniform; for according to the position he obtains in the 'familia,' every Roman citizen is either a person independent in a family (free from Power) or a person that is under control in such family (a domestic dependant), respectSee Brown, ively described as 'persona sui iuris' and 'persona alieno iuri subiecta.' Only the first-mentioned has full capacity for rights. S. VV. с Thus, with respect to their capacity for rights, men are divided into (1) 'liberi' and 'servi.' (2) The 'liberi,' again, were on the one hand divided into free-born or 'ingenui,' and the enfranchised or 'libertini,' subject to the right of the Patron; on the other, into 'cives,' 'Latini' (who only possess the commercium, not the conubium of the Romans), 1 The ancients paid regard to the child in the womb in such way that they maintained all rights in its favour intact until the time of birth, as may be seen in the Law of Inheritance. |