Problems of ownership, obligation, exchange, contract, and debt took up by far the largest part of Roman law. Material possession was the very life of Rome, and the increase of wealth and the expansion of trade demanded a body of law immeasurably more complex than the simple code of the Decemvirs.
Ownership (dominium) came by inheritance or acquisition. Since the father owned as agent and trustee of the family, the children and grandchildren were potential owners—sui heredes in the law’s queer phrase—“their own heirs.”23 If the father died intestate they succeeded automatically to the family property, and the oldest father among the sons inherited the dominium. The making of valid wills was hedged about with hundreds of legal restrictions, and their composition required, as now, a gorgeous and sonorous tautology. Every testator was compelled to leave a specified portion of his estate to his children, another part to a wife who had borne him three children, and (in some cases) parts to his brothers, sisters, and ascendants. No heir might take any part of an estate without assuming all the debts and other legal obligations of the deceased; not infrequently a Roman found himself saddled with a damnosa hereditas—a legacy, so to speak, in the red. Where an owner died without children and without a will, his property and his debts passed automatically to the nearest “agnate,” or relative descended from a common ancestor exclusively through males. In the later Empire this male conceit abated, and by the time of Justinian agnates and cognates (relatives through male or female lines of ascent) inherited with equal right. An old law passed on the urging of Cato (169 B.C.) had forbidden any Roman who owned 100,000 sesterces ($15,000) or more to bequeath any part of his estate to a woman. This lex Voconia was still on the statute books in Gaius’ time, but love had found a way. The testator left property on trust (fideicommissum) to a qualified heir, and bound him by a solemn request to transfer the property before a stated date to the woman named. By this and other channels much of the wealth of Rome passed into the hands of women. Gifts offered another escape from testamentary law; but gifts made in prospect of death were subject to legal scrutiny, and under Justinian they were liable to the same laws as those that harassed legacies.
Acquisition came by transfer, or by legal conveyance resulting from a suit at law. Transfer (mancipatio, “taking in hand”) was a formal gift or sale before witnesses and with scales struck by a copper ingot as token of a sale; without this ancient ritual no exchange had the sanction or protection of the law. An intermediate or potential ownership was recognized under the name of possessio—the right to hold or use property; e.g., tenants on state lands were possessores (“sitters,” squatters), not domini; but their prescriptive right (usucapio, “taking by use”) became dominium, and could no longer be questioned after two years of unchallenged occupancy. Probably this lenient conception of occupation as so soon generating ownership came from patricians who were in this manner acquiring public lands.24 By the same right of usucapio a woman who lived with a man through a year without three nights’ absence became the property (in manu) of the man.
Obligation was any compulsion by law to the performance of an act. It could arise by delict or by contract. Delicts or torts—noncontractual wrongs committed against a person or his property—were in many cases punished by an obligation to pay the injured person a sum of money in compensation. A contract was an agreement enforceable at law. It did not have to be written; indeed, until the second century A.D. the verbal agreement made by uttering the word spondeo—“I promise”—before a witness was considered more sacred than any written compact. The many witnesses and solemn ceremony once required for legal contract were no longer necessary; business was quickened by the legal recognition of any clear agreement—usually entries made by the parties in their account books (tabulae) But the law guarded transactions carefully: it warned the seller with a caveat venditor, as well as the buyer with a caveat emptor, against the myriad forms of cheating natural to civilized life. Any seller of slaves or cattle, for example, was required by law to disclose their physical defects to the purchaser and was held accountable despite a plea of ignorance.25
Debt was contracted by loan, mortgage, deposit, or trust. Loans for consumption were usually secured by a mortgage on realty or movable goods. A default in principal entitled the mortgagee to take over the property. In early republican law, as we have seen, such default permitted the lender to attach the person of the borrower as a bondsman.III The lex Poetelia (326 B.C..) modified this rule by allowing the debtor to work off his obligation while retaining his freedom. After Caesar, defaulted mortgages were usually satisfied by the sale of the debtor’s property without jeopardy to his person; but cases of enslavement to a creditor occur as late as Justinian. Commercial defaults were mitigated by a law of bankruptcy which sold the bankrupt’s property to pay his debts, but permitted him to keep as much of his later acquisitions as his subsistence required.
The chief crimes against property were damage, theft, and rapine—theft with violence. The Twelve Tables had condemned a detected thief to be flogged and then delivered as a bondsman to his victim; if the thief was a slave he was to be scourged and flung from the Tarpeian rock. Increased social security permitted praetorian law to soften these severities to a twofold, threefold, or fourfold restitution.26 In its final form the law of property was the most perfect part of the Roman code.