INTRODUCTORY

size=4 color=black face="Times New Roman">The law of things. In the classification of the Institutes the second part of the law—and by far the largest—relates to things (res).

Res, like ‘thing’, is an elusive word, and the Roman lawyers, as is their habit, leave its meaning to emerge from its use. In its simplest sense it denotes merely a physical object—a table, a house, a piece of land—but for the lawyer there are also abstract things, things which exist only in the mind’s eye, such as a debt, a right of way, and many others. The common factor between these two kinds of thing is that both are assets of economic value, and it is in this wide sense that Gaius and Justinian speak of the law of things. It is that part of the law which governs the creation, transfer, and enjoyment of economic assets—of property in the widest sense. To use the language of rights, the law of things includes all those rights which are capable of being evaluated in money terms. It therefore excludes those rights which emerge from the law of persons, such as the rights of a father over his children or the right of freedom itself, since these are usually incapable of money valuation. In this sense, however, the law of things embraces so large a part of the private law that a further division is inevitable. The division which is discernible in Gaius is a threefold one, into the law of property (or things in a narrow sense), the law of succession, and the law of obligations. This division, preserved by Justinian, remains one of the most characteristic features of the Civil law,^{^[36]} but it presents a number of difficulties and it has been variously modified in modern codes. One difficulty stands out. Superficially at least this is a division into incomparables. Property and obligations are two types of asset, whereas succession is not a third type (the division into property and obligations is in fact exhaustive) but a method of acquiring the other two, as, for example, when an heir succeeds to the assets of a dead man.

Whether or not this criticism is wholly justified,¹ it provides a reason for abandoning here at least the order of the Institutes and dealing with property and obligations before going on to succession.

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

INTRODUCTORY

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