APPENDIX III. FORM USED BY SLAVE IN ACQUISITION BY MANCIPATIO, ETC.
In an essay in the Zeitschrift der Savigny Stiftung for 1905 with the chief thesis of which we are not here concerned11, Professor Eisele makes some interesting remarks on the form of mancipatio.
As Gaius shews12, it contained in ordinary cases, two members; first an assertion of ownership in the acquirer, and secondly, what looks like the chief operative part, esto mihi empta hoc aere aeneaque libra. With the odd fact that at the time when the assertion of ownership is made it is not true we need not here deal[2536]. Our difficulty is to see how far the form was modified if the acquisition was by a slave. It is clear that he could say hanc rem domini mei ex iure Quiritium esse aio1. But he did not always say this, as there might be doubt as to the person to whom he acquired, e.g. in the case of usufruct*. Eisele thinks that he said meum esse aio. This is improbable on the face of it, and cannot really be made to agree with the remark of Gaius that the reason why he could not claim in a cessio in iure was that he could have nothing of his own*. Eisele supposes that Gaius is really referring to incapacity to appear in court, but that is not what Gaius says, and it is scarcely credible that he could have expressed himself as he does, if slaves had been constantly using that exact formula in mancipatio. Eisele adverts to the well-known rule laid down, e.g. by Julian*, that a slave could stipulate stfri dari. But Julian is also clear that a slave cannot stipulate for a right for himself*. A way out is found by understanding such words in a loose, de facto, sense’, but this resource is useless in the case of such words as meum ex iure Quiritium esse aio. On the other hand the form absolutely requires the naming of someÂone in whom the right is to vest.A text already briefly considered* discusses the case of a slave who buys a thing and pays for it by handing over a bag containing twice the price, half being his owner’s, half his fructuary’s9. Ulpian decides that there is no transfer of the money, so that the property is not acquired to either. It is hardly possible that in this case he can have named both, since the naming of each would have had a privative effect10 on the other, as to half, so that each would have acquired half and it would have been indifferent which money was paid first. He can hardly have named no one. The decision would conflict in a quite unnecessary way with principle, and indeed with Ulpian’s own views[2537]. But the result in the text would appear to follow if he had said domino aut fructuario and there was no evidence other than this payÂment as to whether it was or was not within the causae. It is analogous to a stipulatio “ to A or B,” both being domini. It is of course an improbable form, but there are many similar illustrations: the whole case is imaginary. These events never happened12.
More on the topic APPENDIX III. FORM USED BY SLAVE IN ACQUISITION BY MANCIPATIO, ETC.:
- CHAPTER III. THE SLAVE AS RES (cont.). SALE OF SLAVES.
- Acquisition of ownership
- CHAPTER VII. THE SLAVE AS MAN. COMMERCIAL RELATIONS APART FROM PECULIUM. LIABILITIES.
- The importance of form and formality
- MODES OF ACQUISITION OF CORPOREAL THINGS
- CHAPTER II THE SLAVE AS RES.
- Acquisition, Maintenance and Loss of Possession
- Towards a generalized form of set-off
- PHYSICAL FORM: DOUBLE-DOCUMENTS
- CHAPTER IV. THE SLAVE AS MAN. NON-COMMERCIAL RELATIONS.
- The acquisition of ownership in Roman law took various forms.
- Acquisition of legacies
- CHAPTER V. THE SLAVE AS MAN. NON-COMMERCIAL RELATIONS (cont.). DELICTS BY SLAVES.
- Ex nudo pacto oritur actio and the form of stipulation
- CHAPTER VI. THE SLAVE AS MAN. COMMERCIAL RELATIONS, APART FROM PECULIUM. ACQUISITIONS.
- Acquisition of fruits
- PART I. CONDITION OF THE SLAVE.
- APPENDIX I. THE RELATION OF THE CONTRACTUAL ACTIONS ADIECTITIAE QUALITATIS TO THE THEORY OF REPRESENTATION.
- CHAPTER VIII. THE SLAVE AS MAN. COMMERCIAL RELATIONS. PECULlUli. ACQUISITIONS, ALIENATIONS, ETC.
- A legacy (legatum) was a particular form of testamentary disposition whereby the testator left one or more specific objects to some person who was not one of his heirs.