Roman Law Terms with Letters E

Ea res agatur. “This shall be the object of the trial,” an introductory clause in the part of the procedural formula called praescriptio.—See praescriptio.

Wlassak, Mèi Girard 2 (1912) 615.

Eadem res. The same thing. The term is discussed by the jurists with regard to the rule: bis de eadem re ne sit actio, which excludes a second trial for the same claim. See bis idem exigere. Syn. idem.; ant. alia res.—See concurrere.

E. Levy, Konkurrenz der Aktionen 1 (1918) 78; Cornil, St Bonfante 3 (1930) 45.

Ebrietas. Drunkenness. For crimes committed by drunken persons, see impetus.

Ecclesia. The church both as a building and as the religious Christian community. The recognition of the Christian Church by Constantine was followed by a gradual recognition of Church property. Churches could be instituted as heirs and receive gifts under a will. Justinian admitted also monasteries and foun­dations for charitable purposes (piae causae) to prop­erty. He extended the time for usucapio to the detri­ment of ecclesiastic property to forty years. Testa­mentary gifts made to Christ, to an archangel or a martyr were considered to be in favor of the local church, or that dedicated to that archangel or martyr respectively.—C. 1.2; 12.—See christiani, episco- PUS, OECONOMUS ECCLESIAE, PIAE CAUSAE, MINISTER, CONFUGERE AD ECCLESIAM.

G. Pfannmüller, Die kirchliche Gesetzgebung Justinians, 1902; W. K. Boyd, The Ecclesiastical Edicts of the Theo- dosian Code, New York, 1905; A. Knecht, System des justinianischen Vermögensrechts, 1905; A. S. Alivisatos, Die kirchliche Gesetzgebung Justinians, 1913; Roberti, Si Zanzucchi, 1927, 89; Savagnone, Studi sul dir. rom. ec­clesiastico, AnPal 14 (1930) ; Steinwenter, ZSS, KanAbt 50 (1930) ; P. G. Smith, The Church in the Rom. Empire, 1932 ; G. Krüger, Die Rechtsstellung der vor justinianischen Kirche, 1935; P.

Ecclesiasticus. (Adj.) Connected with the Church (res, praedia, ius, dominium, negotia, canones).

Ecclesiasticus. (Noun.) A person employed in the administration of Church property, a Church em­ployee. See PRIVILEGIUM FORI.

Ecloge. (The full Greek title is Ecloge ton nomon.) A selection of laws. It is a Byzantine compilation of excerpts from Justinian’s legislative work and con­stitutions of later Byzantine emperors, written in Greek, and divided into eighteen titles. The work was prepared on the initiative of the emperor Leo the Isaurian and his son, Constantine Copronymos, about the middle of the eighth century. Several private compilations followed in later centuries, composed in a similar manner, for the use of practitioners, such as Ecloge privata, Ecloge privata aucta, Ecloge ad Pro- chiron mutata (early twelfth century) in which the later legislation is taken into consideration more or less.—See PROCHEIROS NOMOS.

Editions: Zachariae v. Lingenthal, Collectio librorum iuris Graeco-Romani ineditorum, 1852; Momferratos, Ecloga Leonis et Constantini, Athens, 1889; J. and P. Zepos, Jus Graeco-Romanum 2 (1931, p. VII, Bibl.).—Translation into English; E. H. Freshfield, A Manual of R. Law, The Ecloga, Cambridge, 1926.—Collinet, Cambr. Med. Hist. 4 (1923) 709; Diehl, ibid. 5; F. Dupotty, Le droit civil ro- main d'apr^s I'Ecloga, These, Bordeaux, 1902; Siciliano- Villanueva, Dir. bizantino, in Enciclopedia giuridica itali- ana, 1912, 41; Spulber, L'Ecloga des Isauriens (Cernauti, 1929); Grummel, Echos' d'Orient, 34 (1935) 327; Cassi- matis, La notion du mariage dans I'Eclogue, Mnem. Pap- poulia, 1934; Ferrari, Enciclopedia Italiana 7 (1930) 144. For Ecloge privata aucta: Editions: Zachariae v.

Edere actionem, formulam, iudicium. See editio actionis.

Edere librum (libellum). To publish a^f booklet.— See EDITIO SECUNDA, LIBELLUS FAMOSUS.

Edicere. To make known by public announcement (publice, publicitus). For the praetor’s announce­ments the phrase praetor edicit is used. With re­gard to private persons edicere = to make a promise publicly, see INDICIUM.

Edicta Augusti ad Cyrenenses. Five edicts issued by Augustus and published in Cyrene between 7 and 4 b.c. They are preserved in an inscription discovered there in 1926. The edicts, written in Greek, deal with various matters of criminal and civil procedure (ac­tions between Greeks should be brought before Greek judges unless the defendant preferred judges of Roman origin), with public charges (munera) of Roman citizens, and other matters. The fifth edict known as a senatusconsult concerning extortion (repe­tundae, of 4 B.C.), see SENATUSCONSULTUM CALVISI- anum. The Augustan edicts are of great importance because they reveal the features of the earliest im­perial edicts (see EDICTA IMPERATORUM) ISSUed for the provinces.

Steinwenter, RE Suppl. 5, 352; Radermacher, Anzeiger Akad. Wien, 1928, 69; Stroux and Wenger, ABayAW 34 (1928) 2. Abhandlung; v. Premerstein, ZSS 51 (1931, Bibl.) ; Riccobono, FIR l² (1941) no. 68 (Bibl.) ; Momi- gliano, OCD 250; Last, J RS 1945, 93; F. De Visscher, Les edits d'Auguste, Louvain, 1940; idem, Nouvelles etudes, 1949, 111; Oliver, Memoirs Amer. Acad. Rome 19 (1949) 105..

Edicta imperatorum (principum).

Kipp, RE 5, 1947; Haberleithner, Philologus (1909) 68; E. Weiss, St. su rom. Rechtsqucllen, 1914, 84, 119; Wilcken, ZSS 42 (1922) 132; Riccobono, FIR I² (1941) no. 67 ff.; Orestano, BIDR 44 (1937) 219.

Edicta lustiniani. Thirteen Justinian’s constitutions preserved as an appendix in one of the two manu­scripts of the collection of 168 Novels of the emperor, see novellae Justiniani. Only ten of them were unknown, since three (1.5.6) were preserved in the other manuscript of the same collection (as nos. 8.111.122). Externally the edicta do not differ from the Novels; they have been called “edicta” to differ­entiate them from the Novels proper.

Edition: in the Schoell-Kroll edition of the Novels (see NOVELLAE lUSTINIANl) pp. 759-795.

Edicta magistratuum. Edicts issued by magistrates on the basis of their ius edicendi, at the beginning of their term of office, and containing rules by which they would conduct their judicial activity “in order to make the citizens know what law they would apply in the jurisdiction” (D. 1.2.2.10). See ius edicendi. The right to issue edicts was held by consuls, prae­tors, dictators, aedils, quaestors, censors, plebeian tribunes; in municipalities by duoviri and quattuor­viri, in the provinces by governors. The custom of issuing edicts was also followed by the prefects in imperial times. Of greatest importance in the devel­opment of Roman law were the edicts of the praetors and aedils.

Kipp, RE 5; Louis-Lucas and A. Weiss, DS 2, 456.

Edicta praefectorum praetorio. Edicts issued in the later Empire by the praefecti praetorio under various names (edicta, programmata, formae, praecepta, prae­ceptiones, commonitoria). They were concerned mostly with administrative matters.

Mommsen, Hist. Schriften, 3 (1906) 284; Zachariae (v. Lingenthal), Anecdota 1 (1843) 227.

Edicta praesidum. Edicts of the provincial governors. See EDICTUM PROVINCIALE.

E. Weiss, Studien zu den rom. Rechtsqucllen, 1914, 71; Wilcken, ZSS 43 (1921) 137.

Edicta principum. See edicta imperatorum.

Edictales. Students in the second year of law studies, called so in pre-Justinian law schools because they studied the juristic commentaries to the pretorian edict.

Kiibler, RE 5; Humbert, DS 2.

Edictalis bonorum possessio. See bonorum pos­sessio DECRETALIS.

Edictalis lex. A term which some late emperors (from the fifth century on) and Justinian applied to their enactments when promulgating them (“haec edictalis lex”).

Edictum. Either the whole edict published by the magistrate on the album when he assumed his office or a single clause thereof. A magisterial edict was one year’s law (lex annua) since the magistrate was only one year in office.—See magistratus, edicta MAGISTRATUUM, EDICTUM TRALATICIUM, IUS EDI­CENDI, CLAUSULA, NOVA CLAUSULA.

Kipp, RE 5; De Ruggiero, DE 2; v. Schwind, Zur Frage der Publikation (1940) 49.

Edictum aedilium curulium (aedilicium). The edict of the aediles who as supervisors of the market pro­mulgated certain rules concerning the sale of slaves and domestic animals, and the liability of the seller for defects of the object sold.

H. Vincent, Le droit des ediles, 1922; Senarclens, TR 4 (1923) 384; idem, RHD 6 (1927) 385.

Edictum Augusti de aquaeductu Venafrano. (Be­tween 18 and 11 b.c.) An edict by Augustus con­cerning the aqueduct in Venafrum.

Edition: Riccobono, FIR I² (1941) no. 67 (Bibl.).

Edictum breve. Not a technical term; a brief edict issued with regard to another legal provision (a statute).

H. Kruger, ZSS 37 (1916) 303.

Edictum Carbonianum. See bonorum possessio ex CARBONIANO EDICTO.

Edictum censorum. Against Latin rhetoricians (92 b.c.) It is known from literary sources.

Riccobono, FIR I² (1941) no. 52.

Edictum Constantini de accusationibus. (Between a.d. 313 and 317.) Concerned the accusation in criminal matters. It is epigraphically preserved.

Riccobono, FIR I² (1941) no. 94 (Bibl.).

Edictum de alterutro. A section in the praetorian edict granting a widow the right to claim restitution of her dowry after the husband’s death, based either on her legal right to the dowry or on the husband’s testament in which such restitution was ordered.

Lenel, Edictum* (1927) 308.

Edictum de appellationibus. (Preserved on a papy­rus.) Deals with appeals to the emperor and settles some pertinent procedural rules. The author of the edict is unknown (Nero?).

Riccobono, FIR l² (1941) no. 91.

Edictum de feris. A part of the aedilian edict con­cerning the liability for damages done by non do­mestic animals (a dog, wolf, bear, panther, lion, etc.) held by a private individual.—See ferae.

Lenel, Edictum* (1927) 566; Scialoja, Studi 2 (1934) 142.

Edictum de violatione sepulcrorum (of Augustus?). See VIOLATIO SEPULCRI.

Riccobono, FIR I² (1941) no. 69 (Bibl.).

Edictum Diocletiani de pretiis. An edict of Diocle­tian (a.d. 301) which established ceiling prices for a long list of goods, both necessary and luxurious, as well as for services rendered by professionals, such as advocates, physicians, shippers. Penalties were imposed on the violators who sold at higher prices or who hoarded merchandise. The prices were fixed in denarii reduced to one twenty-fourth of their origi­nal value. The Edict had little success. It was pub­lished throughout the empire and is preserved epi­graphically in considerable part.

Bliimner, RE 5; Ensslin, RE 7 A (1949) 2469; Mommsen, Jur. Schriften 2 (1905) 323; Kiibler, Gesch. des ram. R., 1925, 361; Mickwitz, Geld und Wirtschaft (Helsingfors, 1932) 70; Balogh, ACIVer 2 (estr. 1951) 352 (Bibl.).

Edictum Domitiani de privilegiis veteranorum. (a.d. 88/89.) Granted certain privileges to veterans. —See veterani.

Riccobono, FIR I² (1941) no. 76 (Bibl.).

Edictum Hadriani de vicesima hereditatium. Con­cerned with the tax on estates. It was abolished by Justinian.—C. 6.33.—See vicesima hereditatium, MISSIO IN POSSESSIONEM EX EDICTO HADRIANI.

Edictum monitorium. The jurist Callistratus wrote a treatise in six books on “edictum monitorium,” but the meaning of the term is not clear in spite of the score of texts preserved in the Digest.

Kotz-Dobrz, RE Suppl. 3, 227; F. Schulz, History of R. legal science, 1946, 193 (Bibl.).

Edictum novum. See nova clausula.

Edictum peremptorium. An official summons ad­dressed to a defendant who refused to appear in court warning him that the trial would be conducted even in his absence.—See evocatio.

Edictum peipetuum. An edict issued by the praetor or another magistrate at the beginning of his year of service and valid for the entire year of his being in office. Ant. edictum 'repentinum = an edictum is­sued during the year of.service. For another sig­nificance of edictum perpetuum see the following item. Guarneri-Citati, NDI 5, 296; Pringsheim, Symbolae· Fri- burgenses Lenel, 1931, 1.

Edictum perpetuum Hadriani. A revision and codi­fication of the praetorian and aedilian edicts, made by the jurist Salvius lulianus at the initiative of the em­peror Hadrian toward the end of his reign (after a.d. 132). The final codification of the edicts pro­voked an abundant commentatory activity of the jurists (Pomponius, Pedius, Furius Anthianus, Callis­tratus, and Gaius, the latter with regard to the pro­vincial edict). The earlier commentaries were super­seded by the extensive commentaries to the Edict by Ulpian and Paul (in 81 and 80 books, respectively) which were richly exploited by Justinian’s compilers of the Digest. The edictal system was followed in Justinian’s Digest and Code according to an express instruction of the emperor to keep in the compilations the order of presentation as systemized in the Edict. Thanks to this arrangement a reconstruction of Ha­drian’s Edict in its essential outlines was possible. In this final edition the Edict gives an extensive pic­ture of the praetorian law, primarily of procedural legal institutions, such as editio actionis, in ius voca- tio, representatives and securities in court, in integrum restitutio, execution of judgments, interdicts, excep­tions, the formulae of actions (partly scattered through the whole work, partly reserved for the end). With the codification of the edict the edictal activity of the praetors was practically stopped.—See edictum PRAETORIS.

The standard work: Lenel, Edictum perpetuum, 3rd cd. 1927, was followed by the editors of Fontes iuris romani, recently by Riccobono I² (1941) no. 65, p. 335 (Bibl.) ; Kipp, RE 5, 1945; Louis-Lucas and A. Weiss, DS 2; De Ruggiero, DE 2; Guarneri-Citati, NDI 5, 296; Girard, Melanges 1 (1912) ; Pringsheim, Sym. Friburgenses Lenel, 1932; Riccobono, BIDR 44 (1937) 1; A. Guarino, Salvius Julianus, 1946, 26; Berger, St Albertario 1 (1950) 605; De Francisci, RIDA 4 {—Mel De Visscher 3, 1950) 319; D’Orgeval, RHD 27 (1948) 301; Kaser, Fschr Schuh 2 (1951) 21; Guarino, St Albertario, 625; idem, ACIVer 2 (estr. 1951) 169.

Edictum praetoris. Both the praetor urbanus and the praetor peregrinus issued edicts at the beginning of their term. See ius edicendi, edicta magistra- tuum. The praetorian edicts were a decisive factor of the development of the law (see ius praetorium). They introduced new actions (actiones praetoriae) in order to protect legal situations and transactions which were deprived of judicial protection under the ius civile. They reformed the law of succession, both testamentary and intestate. Even before the final codification of the praetorian law (see edictum Per­petuum hadriani) many commentaries to the prae­torian edict were written (by the famous Republican jurist Servius Sulpicius Rufus, then by Ofilius, Labeo, Sabinus, Vivianus). The announcements of the prae­tor in the edict are formulated, in the first person through such phrases as iudicium dabo, cogam, per- mittam, restituam, iubebo, servabo (“I shall grant an action, enforce, allow, restitute, order, protect”) and similar. In this way he promised in his own name to apply certain rules or measures in his jurisdictional functions without directly ordering or prohibiting a certain behavior.—See kalendae, lex Cornelia de edictis.

Kipp, RE 5; Brasiello, NDI 5; Wlassak, Edikt und Klage­form, 1882; F. v. Velsen, Beiträge zur Geschichte des e. praetoris urbani, 1909; Weiss, Über vor julianische Edikts­redaktionen, ZSS 50 (1930) 249.

Edictum provinciale. An edict issued by the governor of a province, chiefly on entering office. The governor had ius edicendi as the magistrates in Rome. The differences between the edicts in the various prov­inces and the edict of the Roman praetor seem not to have been very important. Only Gaius wrote a

commentary on “the provincial edict” by which we must understand a typical provincial edict and not that of a specific province. To judge from the ex­cerpts of that commentary as preserved in the Digest, we may assume that the provisions of the provincial edicts were modeled on the edict in Rome.

F. v. Velsen, ZSS 21 (1900) ; E. Weiss, Studien su den rom. Rechtsquellen, 1914, 66; 109; L. Falletti, Evolution de la jurisdiction du magistral provincial, 1926, 73; Rein- muth, The prefectural edict, Aegyptus 18 (1938) 3; Buck­land, RHD 13 (1934) 82; F. v. Schwind, Zur Frage der Publikation, 1940, 70.

Edictum repentinum. An edict issued by a magistrate exceptionally during his term on a specific occasion, whereas the normal edict was promulgated at the time he took up his duties.—See edictum perpetuum.

Edictum successorium. The section of the praetorian edict concerning bonorum possessio. It contained the rules about persons entitled to claim the bonorum possessio if the person first entitled failed to do so within the prescribed period or refused to accept the estate. Syn. caput successorium.—D. 38.9; C. 6.16. —See BONORUM POSSESSIO INTESTATI.

Edictum Theodorici. A collection of 154 Roman legal provisions, compiled about a.d. 500 by order of Theo- doric, king of the Ostrogoths, which had to be ob­served by both Roman citizens and Ostrogoths. The excerpts were taken from the three Codes, Codex Gregorianus, Hermogenianus and Theodosianus, from some post-Theodosian Novels, and from Paul’s Sen­tentiae.

Brassloff, RE 5; Brasiello, NDI 5, 595; Editions: Bluhme, Monumenta Germaniae Historica 5 (1875) 149; Baviera, FIR 2² (1940) 683 (Bibl.).—Schupfer, Atti Accad. Lincei, Ser. 4, T. 2 (1887-1888) 223; Patetta, ATor 28 (1893) 553; B. Paradisi, Storia del dir. ital. 1951, 103.

Edictum tralaticium. The part of a praetor’s edict which he adopted from his predecessor’s edict.

Weiss, ZSS 50 (1930) 253.

Edictum Vespasiani de privilegiis medicorum. (a.d.

74.) Epigraphically preserved; it granted physi­cians certain personal privileges and exemption from taxes (immunitas) and set penalties for violation of the enactment. Among the beneficiaries of the edict were also the teachers {paideutai = magistri, prae­ceptores). Similarly, a rescript by the emperor Domi­tian (a.d. 93-94) against certain abuses {avaritia — greediness) of physicians included praec ept ores as well.—See MEDICI.

Edition: Riccobono, FIR l² (1941), nos. 73, 77 (Bibl.).— S. Riccobono, Jr., AnPal 17 (1937) 50.

Editio actionis. The notification by the plaintiff to the defendant of the action he wanted to bring against the latter. First it had to be done extra judicially. This editio had a preparatory character to let the defendant know the matter for which, and the type of action with which, he will be sued. This offered him the opportunity of settling the controversy before it came to trial. A second editio followed when both the parties appeared before the praetor, the plaintiff indicating exactly the action (formula) by which he was suing his adversary. There remained a possi­bility of changing or amending the proposed formula. —D. 2.13; C. 2.1.—See litis contestatio.

Wenger, RE 5; Humbert, DS 2.

Editio instrumentorum. The introduction of written documents by the parties to a trial as evidence either of the plaintiff’s claim or of the defendant’s denial.— See EXHIBERE, INSTRUMENTUM.

Wenger, RE 5, 1966.

Editio interdict!. A preliminary act in interdictal pro­ceedings;, analogous to the editio actionis, when an ordinary process was initiated. Edere interdictum also refers to the issuance of an interdict by the praetor.—See interdictum.

Wenger, RE 5, 1965.

Editio iudicum. (In criminal trials, quaestiones.) The selection of one hundred jurors from the panel for quaestiones, proposed by the accuser for the ap­pointment of a jury in a specific trial and communi­cated by him to the accused. From that number the latter might select {electio) fifty who then made up the jury. Later, this procedure was repeatedly modi­fied.—See quaestiones.

Editio rationum. (By a banker, argentarius.) A banker was obliged to produce his books in a trial in which not only his own interests were involved but also when those of his clients were at stake and the entries in the banker’s book might serve to clarify the legal situation.—See argentarii.

Editio rescript!. Mentioned only in the Theodosian Code in connection with the summons {denuntiatio) in the rescript procedure. It seems to be the modi­fication of an imperial rescript to the adversary.

Andt, La procedure par rescrit, 1920, 13, 57; Fliniaux, RHD 9 (1930) 201.

Editio secunda. The second edition of a book. Sec­ond editions of juristic writings are mentioned by Justinian {Cordi 3) with the remark that in earlier times they were called repetita praelectio. A second edition of a monograph by Paul is noted in a later source {Frag. Vat. 247). There is no doubt that that some jurists have themselves prepared second editions. On the other hand we know that a few first editions {editio prima) of juristic works were reedited by other classical jurists, usually with a com­mentary or loose remarks (notae). There is, how­ever, a tendency in the recent Romanistic literature to ascribe to early postclassical times (end of the third and the first decades of the fourth century) a very vivid activity in anonymous reediting of classical juris­tic works which even if perhaps acceptable in very few instances, hardly can be proved and seems very un­likely when assumed to such extent as has been by some writers.

F. Schulz, History of R. legal science, 1946, 141, and passim; G. Riccobono, Lineamenti della storia delle fonti, 1949, 208; Berger, Clas Journ 43 (1948 ) 440; Sciascia, BIDR 49-50 (1947) 431; H. J. Wolff, Scritti Ferrini 4 (Univ. Sacro Cuore, Milan, 1949) 64; idem, Roman Law (Oklahoma, 1951) 130; idem, Fschr Schulz 2 (1951) 145; Wieacker, ZSS 67 (1950) 387; Berger, Sem 10 (1952) 95.

Educate (educatio). To educate, to rear, to bring up. The sources deal with educare with reference to wards (pupilli) being under the tutelage of guard­ians. The term is understood in a broader sense com­prising not only the care for mental development but also nourishment and the necessities of physical de­velopment. Supervision of the pertinent duties of the guardians was exercised by the tutelary authori­ties.—D. 27.2; C. S.49.—See tutela.

Effectus. The result, consequence of a legal trans­action or of a trial. The term often appears in inter­polated texts.

Volterra, St Ratti, 1933, 440; Guarneri-Citati, Indice* (1927) 32; idem, Fschr Koschaker 1 (1939) 133.

Efficax. Legally valid, efficient.

Effractor. (From effringere.) A burglar.—D. 47.18. —See CUSTOS.

Effusa. What has been poured out from a dwelling.— D. 9.3. See ACTIO DE DEIECTIS ET EFFUSIS.

Egestas. Poverty, indigence. It served as a basis for exemption from certain duties (guardianship, public charges, and the like). It could also be the cause of the dissolution of a partnership.

Albertario, Studi 5 (1937) 435.

Egredi. To surpass, exceed, for instance, the’terms fixed in an agreement (e.g., a mandate) ; with refer­ence to the condemnatio in the procedural formula = to go beyond the limits fixed therein.

Egregiatus. The dignity of a vir egregius.—See the following item.

Egregius vir. The honorary title of an imperial pro­curator of equestrian rank.

Seeck, RE 5; O. Hirschfeld, Kleine Schriften, 1913, 652. Eierare iudicem. See ferre iudicem.

Eiuratio. A declaration made by a magistrate under oath at the end of his term to the effect that during his service he had observed the laws. Eiuratio magis- tratus = the renuntiation of a magistracy.

Neumann, RE 1, 25; Kiibler, RE 14, 416; Staedler, ZSS 61 (1941) 81.

Eiusmodi. Of such a kind. Syn. huiusmodi. The latter word is preferred by Justinian in his constitutions, where it appears several hundred times while eius- modi is used by him only once. Huiusmodi is, there­fore, considered as a criterion of interpolation.

Guarneri-Citati, Indice² (1927) 44.

Electio. The right of the debtor to choose among the alternative things he owes if such a right was reserved to him in the pertinent agreement. Similarly, the creditor (or a legatee) might have been entitled to make the choice among alternative things owed (or bequeathed) to him.—D. 33.5.—See optio, legatum optionis.

Grosso, RDCom 38 (1940) 225.

Electio iudicum. See editio iudicum.

Electio legata. See legatum optionis.

Eleganter. In a correct, fine manner. The term is applied to express approval of another jurist’s opin­ion with emphasis on the legal idea or doctrine rather than the style. It is a favorite expression of Ulpian’s. Ant. ineleganter.

Radin, LQR 46 (1930) 311; Schulz, History of R. legal science, 1946, 335; Sciascia, BIDR 51-52 (1948) 372.

Elementa. Justinian called his Institutes “Institu­tiones sive elementa” and in the introductory consti­tution by which the work was promulgated (Impera­toriam, c. 4) he denotes the work as “the first elements of the whole of legal science (totius legitimae scientiae prima elementa).”

Elidere. In a civil trial, to repel the plaintiff’s claim by an exceptio (exceptione) or the defendant’s ex­ception by a REPLICATIO.

Elocare. To let out, to lease.—See locatio conductio. Elogium. An additional clause. Elogium is a testa­mentary clause, particularly when someone is disin­herited. For elogium in the aedilian edict, see iumentum. In criminal affairs elogium is the report transmitted to the competent military or civil author­ity about a criminal who has been arrested and ques­tioned by the official who seized him.

Lafaye, DS 2; Braschi, DE 2.

Elogium ultimum. A testament.

Elugere virum. To mourn the husband.—See luctus. Emancipatio. The voluntary release of a son or daughter from paternal power by the father. Fol­lowing a rule established by the Twelve Tables, “if a father sold his son three times, the son shall be free from his father” (Gaius, Inst. 1.132; Epit. Ulp. 10.1), a man would sell his son through mancipatio to a reliable person under fiduciary agreement that the latter would manumit him three times. Only after the third manumission did the son become free from paternal power because after each of the first two he returned to the patria potestas. Alternatively, the trustee could remancipate the son directly to the father; after the third remancipatio, the son did not come under patria potestas but became the father’s persona in mancipio (see mancipium) to be freed by him through a simple manumissio. A third re­mancipatio by the trustee was necessary, because otherwise the trustee would have acquired certain rights of succession and of guardianship over the son which were generally not intended by the parties involved. With regard to daughters and grandsons, one mancipatio by the head of the family sufficed. The emancipated member leaves the family and be­comes a head of a family himself. In Justinian’s law, emancipatio is performed by a simple declaration before a competent official.—D. 1.7; C. 4.13; 8.48.— See divortium, lex anastasiana, fiducia reman- CIPATIONIS CAUSA, INGRATUS, PARENS MANUMISSOR. Leonhard, RE 5; Kreller, RE 184, 1456; Baudry, DS 2;

Anon., NDI 5; Berger, OCD; Moriaud, La simple famille paternelle, 1910, 14; Mitteis, Lat. Emancipationsurkunde, Festschrift Lauhn (Univ. Leipzig, 1911) ; Solazzi, AG 86 (1921) 168; H. Levy-Bruhl, Novelles etudes (1947) 80.

Emansio. See emansor.

Emansor. A soldier who is absent without leave or who exceeds his furlough, but who intends to return to his unit unlike a deserter who quits for good or is absent for a longer time. Punishment for emansio depended upon the reason for the absence. In certain cases (illness, affection for parents and relatives, pursuit of a fugitive slave) the culprit was pardoned. Syn. remansor.

Emblemata Triboniani. A term used in Romanistic literature for interpolations by Justinian’s compilers in texts taken from juristic writings of the classical period or in imperial constitutions.—See digesta, TRIBONIANUS, GLOSSAE.

For bibl. see General Bibliography, ch. XIII.

Emendare. To correct, amend. It refers to legal re­forms by which earlier law was improved, in par­ticular to the activity of the praetors in this regard. —Syn. corrigere.

Emendare moram. See mora.

Emendatio. A punishment, chastisement, especially correction administered by a father on the strength of his paternal power (emendatio domestica) or by a master to his slaves. See correctio. Imperial legis­lation of the fourth century restricted the formerly unlimited power of the father and master.—C. 9.14; 15. See IUS VITAE NECISQUE.

Emere. See emptio.

Emeritum. The pension of a soldier who had served out his time (emeritus, veteranus).

Emeritus. See the foregoing item. Syn. veteranus. Lacour-Gayet, DS 2.

Eminentia. See eminentissimus vir.

Eminentissimus vir. An honorary title of the prae- fectus praetorio, and in third century after Christ also of the praefectus vigilum. The office of the praefectus praetorio is addressed by the emperor with the attribute eminentia.

Emittere. (With regard to written documents.) To write down and sign a document (instrumentum, cautionem) or a letter (epistulam, litteras) in which the writer makes a legally important statement.

Emittere rescriptum. To issue a rescript.

Emolumentum. An advantage, profit, primarily with regard to successional benefits (inheritance, legacies, collatio, Falcidian quarter). The term is common in the language of the imperial chancery and in Jus­tinian’s constitutions.

Emphyteusis. Long-term lease of an imperial domain or of private land for a rental in kind. The fore­runner of this institution was the ius in agro vectigali. The emphyteusis gave the lease-holder (= emphy­teuta) rights similar to those of a proprietor, al­though the real owner remained the person to whom the rent (canon, pensio) was paid. Under certain circumstances, the land returned to the owner (as in the case of the death of the emphyteuta without an heir, non-payment of the rent or taxes for three years, lapse of time if a term was fixed in the original agree­ment, contractus emphyteuseos, which was a specific contract and neither an ordinary lease nor a sale. The rights of the emphyteuta (ius emphyteuticarium) embraced the full use of the land and its products; they were alienable and transferable by testament or ab intestato.—C. 4.66; 11.63.—See ager vectigalis, IUS IN AGRO VECTIGALI, CANON.

Berger, OCD 314; Mitteis, AS'dchsGW 22 (1901) ; Mac- chioro, AG 75 (1905) 148; G. Baviera, Scr giuridici 1 (1909) 189; P. Bonfante, Scr giur. 3 (1924) 141; W. Kamps, Recucils de la Societe J. Bodin, 3 (1938) 67; Johnston, Univ. Toronto LJ 3 (1940) 323; A. Hajje, Ltudes sur la location a long terme, 1926; E. Levy, West Roman Vulgar Law, 1951, 43, 90; S. O. Cascio, AnPal 22 (1951) 1.

Emphyteuta. See the foregoing item.

Emphyteuticarius (emphyteuticus). Encumbered

(ager fundus, praedium) or connected with emphy­teusis (contractus, ius, canon).

Emptio venditio. A purchase and sale, i.e., a contract by which a thing is exchanged for money. The ter­minology emptio venditio indicates the two elements of the contract: an emere by the buyer (emptor) and a vendere by the seller (venditor). The Roman sale was a consensual contract concluded when the parties by simple consent (nudo consensu) agreed upon the thing to be sold and the price (pretium) to be paid therefor, without further formality. The sale con­tract itself did not transfer ownership of the thing sold to the buyer. To accomplish that another legal act was necessary (mancipatio, in iure cessio, tra- ditio). The vendor had only to hand over the thing to the buyer to make the latter possess and enjoy it peacefully (ut rem emptori habere liceat). The buyer had to pay the price in money, either immediately or later, according to the agreement. The exchange of one thing for another is not a sale, but a permutatio. Any thing may be the object of a sale (merx) except things excluded from private transactions (res cuius commercium non est). Non-corporeal things (a servitude, an usufruct) may be sold, as well as future things (see EMPTIO SPEI, EMPTIO REI SPERATAE). The price must be fixed in an unequivocal way (pre­tium c er turn) and be real, i.e., corresponding to the true value of the thing (verum), not fictitious (e.g., as a device to cover a prohibited donation). Sale was a contract bonae fidei; the pertinent actions were actio venditi (ex vendito) against the buyer for payment of the price and actio empti (ex empto) against the seller if he did not fulfill his obligations, failed to de­liver the thing sold, for example, or to take care of it (custodia) in the period between the conclusion of the sale and delivery so that the thing perished or de­teriorated. The seller was not liable for accident (casus). See periculum rei VENDiTAE. Special rules settled the liability of the vendor when the buyer was later evicted from the thing by a third person. See EViCTio, STiPULATio duplae. War­ranty against hidden defects in the thing sold was originally stipulated expressly by the seller; besides, the actio empti, as a bonae fidei actio, gave the oppor­tunity to take into consideration defects fraudulently concealed by the seller. The edict of the aediles cu­rules, as the supervisors of the markets established particular provisions for the sale of slaves and do­mestic animals. Above all, the seller had to inform the buyer of any defect or disease that was not ap­parent to the buyer. He was liable for all allegations (dicta et pro mi ssa) he may have made about special qualities of the slave or animal or the lack of secret defects (even those unknown to himself). Two ac­tions lay against him, either the actio redhibitoria for the rescission of the sale (the seller being obliged to return the price and the buyer to restore the thing with accessories) or the actio quanti minoris (named also aestimatoria) by which the buyer claimed resti­tution of a portion of the price paid, corresponding to the lesser value. The principles of the aedilian edict were later extended to all kinds of sale. Throughout the classical period no written document was required for the validity of a sale contract. When made, it served only for purposes of evidence. Justinian or­dered some formalities for written sales, when accord­ing to the will of the parties, the written form was a requirement for the validity of the sale (instrumentum emptionis, instrumentum emptionale). Until the for­malities were accomplished, with the assistance of a notary (tabellio), the parties could rescind the sale. Many reforms in the law of sale were introduced by Justinian.—Inst. 3.23; D. 18.1; 18.5; 19.1; C. 4.38; 40; 44; 45; 49; 54; 58.—See actio de modo agri, ADDICTIO IN DIEM, ARRA, COMMISSORIA LEX, C0MM0- DUM, EDICTUM AEDILIUM, EXCEPTIO REI VENDITAE, PACTUM DE RETROVENDENDO, PACTUM DISPLICENTIAE, PERFECTUS, PRETIUM, PERICULUM REI VENDITAE, VEN­DITIO, LAESIO ENORMIS, USUCAPIO PRO EMPTORE, RED­HIBITIO, SIMPLARIA VENDITIO, VACUA POSSESSIO.

Leonhard, RE 5 ; Humbert, DS 2 ; Lécrivain, DS 4, 517 (s.v. redhibitoria) ; Pugliese, NDI 5 (s.v. emptio) ; Biondi, NDI 12, 880 (s.v. vendita) ; De Medio, BI DR 16 (1904) 5 ; Lusignani, La responsabilità per custodia 2 (1905) ; J. Mackintosh, The Law of sale, 2nd ed. 1907 ; E. Rabel, Haftung des Verkäufers wegen Mangels im Recht, 1912; F. Pringsheim, Kauf mit fremdem Geld, 1916; H. Vincent, Le droit des édiles, 1922; Ferrini, Opere 3 (1929) 49; R. Monier, Mei Cornil 2 (1926) 137 ; idem, La garantie contre les vices cachés, 1930; Pringsheim, ZSS 50 (1930); Meylan, St Bonfante 1 (1930) ; G. Longo, ibid. 3 (1930) 363; Senarclens, ibid. 91; Buckland, LQR 48 (1932) 217; Albertario, Studi 3 (1936) 401; Marianne Bussmann, L’obligation de délivrance du vendeur, 1933 ; Pringsheim, ZSS 53 (1933) 491; Flume, ZSS 54 (1934) 328; Beseler, ACH 1 (1935) 335; G. G. Archi, Il trasferimento della proprietà nella compravendita romana, 1934; Meylan, St Riccobono 4 (1936) 279; Biondi, ibid. 90; Pringsheim, ibid. 313 ; Haymann, ibid. 341 ; S. Romano, AnPer 10 (1934) ; idem, Nuovi studi sul trasferimento della pro­prietà nella compravendita, 1937 ; Meylan, La vente, An­noi es de droit et de sciences polit. de Louvain, 1938, 447 ; C. Longo, BIDR 45 (1938) ; Arno, AT or 74 (1939) 570; Scarlata-Fazio, RISG 1939, 216; v. Lübtow, Fschr Ko- schaker 2 (1939) 113; Arangio-Ruiz, ibid. 141; F. De Zulueta, The Roman Law of Sale, 1945 ; Pflüger, ZSS 65 (1947) 205; Roussier, Novation de l’obligation du vendeur, RHD 1948, 189; W. Flume, Eigenschaftsirrtum und Kauf, 1948; Meylan, Scr Ferrini 4 (Univ. Sacro Cuore, Milan, 1949) 176; Coing, Sem 8 (1950) 6; Pezzana, AG 140 (1951) 53; E. Levy, West Roman Vulgar Law, 1951, 127; Pringsheim, Actio quanti minoris, ZSS 69 (1952) 234; V. Arangio-Ruiz, La compravendita in dir. rom. 1 (Lezioni) 1952.

Emptio ab invito. Used of an act of a magistrate by which an individual is compelled to sell his land to the state for the sake of public utility (construction of an aqueduct or a road) in return for a reasonable compensation. The term “expropriation” is unknown in juristic Latin.—See publicatio.

Jones, Expropriation in R. law, LQR 45 (1929) ; F. Μ. De Robertis, La espropriazione per pubblica utilità, 1936; U. Niccolini, La proprietà, il principe e l’espropriazione, 1940; Brasiello, BIDR 44 (1937) 475; idem, Estensione e limiti della proprietà (Corso, 1941) 58; De Robertis, AnBari 7-8 (1947) 153.

Emptio bonorum. See bonorum emptio.

Emptio familiae. See familiae emptor.

Emptio hereditatis. The inheritance of a living per­son or a non-existent person could not be the object of a sale unlike the inheritance of a deceased person. Antoninus Pius granted the buyer of an inheritance an actio utilis against the debtors of the inheritance. —D. 18.4; C. 4.39.

Vassalli, Miscellanea critica 1 (1913) ; Cugia, St Besta 1 (1939) 514.

Emptio rei speratae. The sale of a thing which is expected to come into existence in the future (the sale of a crop, an unborn child of a slave = partus ancillae). The sale becomes void if the expected thing does not materialize.

F. De Visscher, Vente des choses futures, 1914.

Emptio spei. A sale of a future thing while it is quite uncertain whether it will come into existence at all (ip sum inc er turn rei is the object of the transaction), e.g., fish to be caught by a fisherman in his next catch. In such a sale, the buyer takes the full risk and the price has to be paid even if no fish are caught. —See IACTUS RETIS.

Brasiello, NDI 5; Vassalli, AnPer 1913 (Miscellanea 1) ; F. De Visscher, Vente des choses futures, 1914; Bartosek, RIDA 2 (=Mél De Visscher 1, 1949) 50.

Emptio sub hasta. See subhastatio, venditio sub HASTA.

Emptionale instrumentum. A written deed of sale. —See EMPTIO.

Emptor bonae fidei. A buyer of a thing who did not know that “the thing belonged to another (than the seller) or believed that the seller was entitled to sell it” (D. 50.16.109), for instance, as a guardian or curator or representative of the real owner.

Emptor bonorum. See bonorum emptio. Emptor familiae. See familiae emptor. Enantiophanes. See anonymus.

Enchiridium (enchiridion). An elementary handbook. A juristic writing so entitled appears in the Digest under the name of Pomponius. A long excerpt thereof containing a concise outline of legal history and a survey of jurisprudence until Julian is pre­served (not free from later alterations) as frag. 2 in the title of the Digest 1.2 “on the origin of the law, all magistrates and the sequence (successio) of the jurists.”

Berger, RE 4A, 1907; Ebrard, ZSS 46 (1925) 117; Fel- gentrager, Sy mb. Friburgenses Lenel (1932) 369; Kretsch- mar, ZSS 59 (1939) 166; Schulz, History of R. Legal Science, 1946, 168; Guarino, RIDA 2 (=Mel De Visscher 1, 1949) 402; Weiss, ZSS 67 (1950) 503.

Enucleatum ius (antiquum). Law taken from older writings. Justinian calls the law collected in the Digest and in his Institutes by this term.

Ebrard, RIDA 3 (= Mel De Visscher 2, 1949) 253.

Epanagoge (tou nomou). A collection of legal norms written between a.d. 879 and 886 at the initiative of the Byzantine emperor Basil the Macedonian but not officially published. The compilation, built up pri­marily on Justinian’s codification, was to lead to an achievement similar to that of the basilica a few decades later. A similar compilation called Epana­goge aucta belongs to the tenth century.

Editions: Zachariae, Collectio librorum iuris Graeco­Romani ineditorum, 1852; J. and P. Zepos, Jus Gr.-Rom. 3 (Athens, 1931) p. 23 (Bibl., p. XIV).—For E. aucta: Zachariae v. Lingenthal, Ius Gr.-Rom, 4 (1865) 171; J. and P. Zepos, Ius Gr.-Rom. 6 (1931) 49; De Malafosse, Dictionnaire de dr. canonique 5 (1951) 354.

Epidemetica. See metatum.—C. 12.40.

Episcopalis audientia. The jurisdiction of bishops insofar as it was recognized by the State. Originally limited to spiritual matters and disputes among ec­clesiastics, though also practiced by the bishops with regard to laymen in the capacity of arbitrators, it was later extended to controversies among laymen in various instances, operating concurrently with state courts. Fluctuating imperial legislation limited or increased the jurisdictional competence of the bishops until the whole matter was settled by Justinian.— C. 1.4; Nov. 123.

Piacentini, NDI 1, 1154; Humbert, DS 2; Steinwenter, RAC 1; Siciliano-Villanueva, Bysantion 1 (1924) 139; Lammeyer, Aeg 13 (1933) 193; Volterra, BIDR 42 (1934) 453; G. Vismara, E. a. 1937 (Milan) ; Steinwenter, Bysan- tinische Zeitschrift 30 (1930) 660; Masi, AG 122 (1939) 86; Busek, ACII 1 (1934) 451; idem, ZSS Kan. Abt. 28 (1939) 453; Arangio-Ruiz, FIR 3 (1943) no. 183; Vol­terra, SDH I 13-14 (1948) 353.

Episcopus. A bishop. He had full control and admin­istration of Church property, including the right to conclude contracts, such as leases, loans, pledges, emphyteuses. Property of his own acquired after consecration—except that from the next relatives— belonged to the Church.—C. 1.3; 4.—See the fore­going item.

Genestal, NRHD 32 (1908) 163; L. Galtier, Du role des eveques dans le droit public et prive du Bas-Empire, 1913; Leitner, Die Stellung des Bischofs, Fschr Hertling, 1913; Volterra, BIDR 42 (1934) 453; Declareuil, RHD 14 (1935) 33; Masi, AG 122 (1939) 86; Mochi Onory, RStDIt 4-6 (1931-1933) ; Ferrari, AVen 99, 2 (1939/40) 233.

Epistula. A private letter. “If I send you a letter, it will not be yours until delivered to you” (D. 41.1.65 pr.). Delivery of the letter to a secretary or messenger of the addressee makes the latter the owner thereof immediately. Certain agreements, primarily consensual contracts (a sale, for instance), might be concluded by letter (per epistulam). A letter might also be used by a testator in order to express some desires to his heir. It then had the legal value of a codicil (see codicilli). See epistula fideicom­missaria. An epistula might also serve for the acknowledgment of a debt; see chirographum.—See DIVORTIUM, MANUMISSIO PER EPISTULAM, NUNTIUS. —For official letters, see epistulae.

Dziatzko, RE 3, 836 (s.v. Brief) ; L. De Sarlo, Il docu­mento oggefto di rapporti privati, 1935, 37, 128.

Epistula fideicommissaria. A letter by which a per­son imposed on his heir, testamentary or intestate, a fideicommissum in favor of a third person.—See FIDEICOMMISSUM.

Epistula traditionis. See traditio chartae.

Epistulae. (In official matters.) Official letters written by magistrates and provincial governors to private individuals.—C. 7.57.

De Ruggiero, DE 2.

Epistulae. (Of jurists.) Written legal opinions given by prominent jurists to magistrates, other jurists, or private persons at their request. Some jurists edited their epistulae in collections entitled “Epistulae” (Labeo, Proculus, lavolenus, Neratius, Celsus, Afri­canus, Pomponius), works similar to Quaestiones or Responsa. Excerpts from epistulae often appear in the Digest in their epistolary form.

Berger, RE 10, 1174.

Epistulae principum. Answers of the emperor given in a separate letter to enquirers or petitioners who addressed themselves directly to the emperor with a question or petition. The epistulae were issued by the imperial bureau ab epistulis and primarily ad­dressed to officials.—See rescripta.

Brassloff, RE 6; De Ruggiero, DE 2, 2131; Riccobono, FIR 1’ (1941) nos. 72, 74, 75, 78, 80, etc.; Lafoscade, De epistulis imperatorum, Paris, 1902; Haberleitner, Philo­logus 98 (1909).

Epitome Gai. An abstract of Gaius’ Institutes, writ­ten in the Western Empire probably in the fifth century. It is a part of the lex romana visigo- thorum under the title “Liber Gaii.” Originally it may have served as a book for students.

Editions: Seckel-Kiibler in Huschke’s lurisprudentia ante- iustiniana, 2, 2 (sixth ed. 1927) 395; Baviera, FIR 2’ (1940) 231; M. Conrat, Die Entstehung des westgothischen Gaius, 1905; Kiibler, RE 7, 504; Albertario, ACDR Roma I 1933 Studi 5, 269) ; G. G. Archi, Epitome G., 1937; Schulz, History of R. Legal Science, 1946, 302.

Epitome luliani. See novellae iustiniani.

Epitome ton nomon. A private collection of laws di­vided into fifty titles, probably written about a.d. 930 in Greek, composed of excerpts from Justinian’s codi­fication and later imperial enactments. The original title of the compilation is “Ecloge of laws presented in an epitome.”

Editions: Zachariae, lus Graeco-Romanum 2, 265; J. and P. Zepos, lus Gr.-Rom. 4 (1931) 263.—Mortreuil, Hist, du droit bysantin 2 (1844) 372.

Epitome Ulpiani. See ulpianus, tituli ex corpore ULPIANI.

Equester. See equites, aes equester, ordo equester. Equestris dignitas. In 'the later Empire the eques­trian rank.—C. 12.31.

Equites. Knights, persons of equestrian rank. Origi­nally equites were cavalrymen. Horses were pro­vided either by the state (equites equo publico) or bought from a special allowance (aes equestre). Another allowance was granted for the maintenance of the horse (aes hordiarium). Later, cavalrymen frequently provided their own horses (equites equo privato). Service in the cavalry was favored by the state and enjoyed various privileges. The equites were originally organized in eighteen equestrian units (centuriae). Eventually they developed into a dis­tinct social class, in particular when the lex sem- pronia (122 b.c.) gave them the right to serve as jurors in criminal trials, with the exclusion of the senators. The equites became a nobility of rich men who obtained their wealth from commerce (forbidden to senators) and tax farming (see publicani), a capitalist nobility, lower in rank than the senatorial class but with gradually increasing influence in ad­ministration and politics. The connection with cavalry service was broken; the possession of a considerable wealth became decisive. The lex roscia (67 b.c.) fixed their patrimonial census at 400,000 sesterces. Augustus reorganized the equestrian body. There­after it played an ever increasing role in social and political life, since the high positions in the admin­istration of the Empire were covered by persons of equestrian rank. The golden ring which in the time of the Republic was the distinguishing mark of sena­tors and equites (ius anuli aurei) became an exclu­sively equestrian distinction. Through the occupation of the most important posts in the imperial chancery after the reform by Hadrian their influence grew still greater.—See CLAVUS LATUS, ANGUSTUS CLAVUS.

Kiibler, RE 6; Cagnat, DS 2; Bartoccini, DE 2; De Robertis, NDI 5; Mattingly, OCD; C. W. Keyes, The rise of the e. in the third century, Princeton, 1915; R. H. Lacey, The equestrian officials of Trajan and Hadrian, 1917; A. Stein, Der rom. Ritterstand, 1927; B. Jenny, Der rom. Ritterstand, 1936; De Laet, La composition de I’ordre equestre, Rev. Beige de Philol. et d'Hist. 20 (1941) 509; Zwicky, Die Verwendung des Militars in der Ver- waltung der rom. Kaiserseit, 1944, 54.

Equites legionis. Cavalrymen—normally 300—

attached to a legion. They were divided into ten turmae (with 30 horsemen) and thirty decuriae.— See ALA, TURMA.

Kiibler, RE 6, 279.

Equites singulares (principis, Augusti). Cavalry­men in the service of the emperor as his bodyguard. Cagnat, DE 2, 789; Liebenam, RE 6, 312.

Ercisci (hercisci). See dividere, actio familiae erciscundae.

Ercto non cito. An ancient term for joint, not divided, ownership (familial community).—See consortium. Levy, ZSS 54 (1934) 276; De Zulueta, JRS 25 (1935) 19; Solazzi, AHap 57 (1935) 126; 58 (1937) 76; E. Schlechter, Contrat de societe, 1947, 196 (Bibl.); Beseler, Scr Ferrini 3 (Univ. Sacro Cuore, Milan, 1948) 281; Weiss, Fschr Schulz 1 (1951) 84.

Eremodicium. The unexcused absence of a party to a trial in court. In later law, the proceedings were continued in favor of the party present in spite of the absence of the adversary. The contumacious pro­cedure was thoroughly reformed by Justinian.—See absens, contumax.

Kipp, RE 6; Humbert, DS 2; A. Steinwenter, Versaumnis- verfahren, 1914; L. Aru, Il proccsso contumaciale, 1934.

Erepticium. See ereptorium.

Ereptorium. An inheritance or legacy which is not given (eripitur = taken away) to an heir or legatee because of his unworthiness (indignitas), in certain instances of bad behavior towards the deceased. See indignus. The inheritance or legacy went to the fisc in most cases.

Leonhard, RE 3 (s.v. bona e.) ; Humbert, DS 2 (s.v. ereptitium).

Ergastulum. A workhouse into which lazy or un­trustworthy slaves were put by their masters and forced to work. Ergastularii = either the watchmen or the inmates.—See vinctus.

Mau, RE 6.

Ergolabus. (In later imperial constitutions.) One who contracts to construct a building or to perform a work (opus) with his own materials and workers. The contract is a locatio conductio operis jaciendi. Syn. (in classical language) redemptor operis.—C. 4.59.

Eripere. To take away something from another either by force (vi) or legally as when a person is deprived of illegal profits (eripere hereditatem).—See erep­torium.

Erogare (erogatio). To expend, to lay out. In cer­tain legal situations involving two or more persons, as, e.g., in a partnership, common ownership, or com­mon inheritance, whatever one has expended in favor of all was computed with the gains which he made for himself without sharing with the others.

Erogatio. (In military administration.) Distribution of military supplies (of food = erogatio annonae mili- taris, of clothes = erogatio vestis militarist. Er o gat or = the official who made the distribution.—C. 12.37.

Errare. To be mistaken, to ignore, not to know certain legally important facts, to believe in what is untrue and to act accordingly. A person acting in error = err ans. Err antis nulla voluntas = “the (expressed) will of a person who is in error, has no (legal) force” (D. 3.20).—See ERROR.

Erhardt, ZSS 58 (1938) 167.

Erro. A vagrant slave who leaves his master’s house in order to roam about, and who, after spending his money, returns to the master.

Error. A false knowledge or want of knowledge of legally important circumstances, factual or juridical (error facti, error iuris). Syn. ignorantia. An error may occur in unilateral (testaments) and bilateral acts (contracts). It creates a divergence between the will of a person and the manifestation of his will in spoken or written words. One thing is declared as wanted whereas another is really wanted. In a testa­ment an error concerning the beneficiary (e.g., an­other name is written than that of the person to whom the testator wants to make a gift) or the bequest (an­other thing is mentioned as bequeathed than the one intended) renders the whole disposition void. In contractual relations error may invalidate the trans­action under certain circumstances. Only an excus­able error is taken into consideration in favor of the person acting in error, however, and then solely an error which concerns such an essential element of the transaction that it must be assumed that he would not conclude it at all had the error not occurred. These are problems which cannot be resolved in general terms, but must be judged individually in each concrete instance. The error of a person may serve in certain situations as an evidence of his acting in good faith (bona fide) and furnish the basis for a restitutio in integrum, or, when a payment was made in the erroneous assumption of a debt, for a condictio indebiti.—D. 22.6; C. 1.18.—See causae probatio, CONDICTIO INDEBITI, DEMONSTRATIO FALSA.

R. Allain, L’erreur, These, Paris, 1907; R. Leonhard, Irrtum, 1907; Schulz, ZSS 33 (1912); idem, Gedächt­nisschrift für Seckel, 1927; Donatuti, AG 86 (1921) 223; Lauria, RDCiv 19 (1927) 313; Riccobono, BIDR 43 (1935) 1; P. Voci, L’errore net dir. rom., 1937; idem, SDHI 8 (1942) 82; Kaden, Fschr Koschaker 1 (1939) 334; Simonins, ibid. 359; P. F. Wilches, De errore com­muni in iure rom. et canonico, Rome, 1940; Riccobono, Scr Ferrini (Univ. Pavia, 1946) 35; Solazzi, Condictiones e errore, ANap 62 (1947/8) ; Flume, Festschr. Schulz 1 (1951) 209; Dulckeit, ibid. 175; F. Schwarz, ZSS 68 (1951) 266; idem, Die Grundlage der condictio, 1952, 65.

Error advocatorum. Mistakes or false allegations made by advocates in their written statements. “They do not prejudice the truth” (C. 2.9.3.).—C. 2.9.

Error calculi (computationis). An error in calcula­tion. If it occurs in a judgment and is fully evident, no appeal is necessary. The judge himself may cor­rect it. In public administration, error calculi is without any legal effect. A reexamination and cor­rection (retractatio) is admissible even after ten or twenty years.—C. 2.5.

Error facti. Ignorance or false knowledge of a fact. Syn. ignorantia facti. Ant. error (ignorantia) iuris. It is said that unlike ignorantia iuris an error facti non nocet (C. 1.18.7), to wit, it may be alleged as an excuse and in certain instances produce the nullity of the act. The rule was not generally applied.— See ERROR.

Error in corpore. An error concerning the thing to which a legal transaction refers (e.g., the buyer believes he is buying the slave Stichus while the seller means another).

Flume, Fschr Schulz 1 (1951) 244.

Error in corpore hominis. See error in persona.

Error in iure. (Error iuris.) See ignorantia iuris. Error in materia. See error in substantia.

Error in negotio. An error which concerns the trans­action itself (e.g., one party believes he is buying an immovable while the other wants to lease it). Such an error makes the transaction void.

Error in nomine (nominis). A mistake made in the mention of' a name (of an heir, a legatee, a slave bequeathed or a slave to be manumitted by the lega­tee).—See DEMONSTRATE FALSA, NOMEN.

Flume, Fschr Schulz 1 (1951) 244.

Error in persona. An error concerning the person to whom a testator wants to make a gift or with whom one wants to conclude a transaction. The testamen­tary disposition or the transaction is void if in the concrete instance the identity of the person is of particular import. Syn. error in corpore hominis.

Error in substantia. Occurs when the mistake con­cerns the substance, nature or economic function of the thing involved (e.g., buying vinegar instead of wine). Syn. error in materia.

Thayer, ACDR, Rome, 2 (1935) 409; Flume, Fschr Schulz 1 (1951) 248.

Error iuris. See IGNORANTIA IURIS.

Erroris causae probatio. If a Roman woman who married a peregrine under the erroneous assumption that he was a Roman citizen, proved her error, the marriage remained valid, and the husband and chil­dren became Roman citizens.—See causae probatio.

Erus. The owner, master of a household.

Eudoxius. A law professor in Beirut, about the be­ginning of the sixth century after Christ. He was the founder of a family of famous Byzantine jurists, among them his son, Leontius, and a grandson, Anatolius.

Kiibler, RE 6, 927.

Eunuchus. Emasculated. See castratio. In Jus­tinian law eunuchs were not allowed to marry or make an adoption. These restrictions did not exist in the classical law. Eunuchs were able to make a testament, however.—C. 4.42.

Hug, RE Suppl. 3, 449; Bonfante, AG 101 (1929) 3.

Eustathios. See peira.

Evanescere. To vanish, to lose validity, to become void- The term is applied to testamentary disposi­tions and to contractual bindings. Actio evanescit an action which though originally available lost its ap­plicability in a concrete case. The term is considered suspect as to its classicality.

Guarneri-Citati, St Riccobono 1 (1936) 719.

Evectio. An official permission to use the imperial post. Syn. diploma.—See tractoria.

Seeck, RE 4, 1859; Humbert, DS 1, 1662.

Eventus. The legal effect of a transaction or a trial. With regard to wrongdoings, eventus (= the issue) is opposed to the intention (design) of the wrong­doer. See EXITUS, ANIMUS.

Evictio. (From evincere.) Occurred when a seller sold a thing which did not belong to him and the buyer was later evicted by the real owner. When ownership over the thing sold was transferred by mancipatio the buyer had the actio auctoritatis against the seller in case of eviction. If there had been no mancipatio (the thing being a res nec mancipi, for instance), the seller used to promise by stipulatio to pay the buyer double the price (stipulatio duplae) or make a simple stipulatio (stipulatio evictionis or de evictione) by which he guaranteed the buyer peaceful use of thing sold (habere lie ere) and promised to pay the buyer any damages he incurred by eviction. In a later development the buyer could avail himself of the actio empti for damages independently of a pre­ceding stipulatio. Liability for eviction, which became a legal element of the sale, could be excluded by a special agreement, pactum de non praestanda evic- tione.—Evictio might also occur when a thing be­longing to another was given as a dowry or as a pledge (fiducia, pignus) by the debtor.—D. 21.2; C. 8.44; 45; 10.5.—See emptio venditio, evincere, ACTIO AUCTORITATIS, LAUDARE AUCTOREM, DATIO IN SOLUTUM.

Humbert, DS 2; Pivano, De evictione in iure rom., 1901; De Medio, BIDR 16 (1904) 5; De Francisci, L’evizione della res data in solutum, 1915; Guarneri-Citati, AnPal 8 (1921) 385; Girard, Melanges 2 (1923) 1; Kamphuisen, RHD 16 (1927) 607; Ricca-Barberis, St Riccobono 2 (1930) 127; idem, L’evisione nella datio in solutum, 1931; Kaser, ZSS 54 (1934) 162; E. Albertario, Studi 3 (1936) 481; Erbe, Pfandrecht und Eviction, Fschr Koschaker 1 (1939) 479; Meylan, RIDA 3 Mel De Eisscher 2, 1949) 193.

Evictionem praestare. To indemnify a buyer who was evicted by a third person from the thing sold.—See EVICTIO.

Evidens. Manifest, obvious, evident. The term is used with preference by Justinian and his compilers.

Guarneri-Citati, Indice² (1927) 36; E. Albertario, Studi 1 (1933) 322.

Evidentissimae probationes. Evidence which fully proves the truth of an alleged fact or right. It is a typical Justinian expression, frequently interpolated in classical texts.—See apertissimus, probationes. Guarneri-Citati, Indice* (1927) 36 (Bibl.).

Evincere. See evictio. Evincere occurs not only when a third person claims ownership of a thing from the buyer, but also when he claims an usufruct or a servitude. With regard to slaves evincere is used not only when the third person asserts that the slave is his, but also when he claims that the slave is a free person (evincere in libertatem).

Evocati. Persons who in case of emergency assumed military service for as long a time as the state re­mained in danger. Under Augustus they became a separate unit (evocati Augusti, Caesaris) of soldiers who had already served their time, under the com­mand of the praefectus praetorio. Some of the evo­cati were appointed for special services in the im­perial palace or in the office of the praefectus prae­torio, others were distributed among the legions for special functions of a non-military character or were sent to the provinces on special missions. The pur­pose of the institution was to use able persons with military experience for further official service.

Fiebiger, RE 6, 1145; Cagnat, DS 2; De Ruggiero, DE 2.

Evocatio. The summons of a party or a witness to a trial by a magistrate in the proceedings cognitio extra ordinem. It could be made orally by denuntiatio when the person involved lived in the same city, otherwise by a letter (litteris) or by a public an­nouncement (edicto) if his domicile was unknown. Syn. (in a few instances) vocatio.—See edictum peremptorium.

A. Steinwenter, Versdumnisverfahren, 1914, 8; L. Aru, Procedura contumaciale, 1934, 98.

Ex. Added as a prefix to the title of an imperial official who was no longer in service (e.g., ex prae­fecto praetorio, ex comite, ex proconsule).

Ex aequo et bono. See bonum et aequum.

Ex asse heres. An heir to the whole estate. Ant. ex parte. Ex semisse heres = an heir to a half of the estate.—See DODRANS, SEMUNCIA.

Ex die. See DIES, MANUMISSIO SUB CONDICIONE.

Ex fide bona. In conformity with good faith, honesty. Ant. ex iure Quiritium — according to the strict law. —For ex fide bona in the procedural formula, see IUDICIA BONAE FIDEI.—See BONA FIDES.

Sinaiski, St Riccobono 4 (1936) 57 (for ex i. Q.).

Ex lege. According to a statute (law). It is to be understood “both according to the intention (sen­tentia) and to the words of the law” (D. 50.16.6.1).

Ex post facto. From a later event. It refers to a fact or event subsequent to a legal situation, resulting from an agreement or a unilateral act (a legacy or dona­tion). From (ex) that fact or event (for instance, the fulfillment of a condition), conclusions are drawn as to the validity of, or a change in, the former legal situation. See PRAETERITA, INITIUM.

Berger, Seminar 7 (1949) 49.

Ex re alicuius. (Acquisitions made) from another’s means. In particular ex rc pa tris is applied to what a son acquired at the father’s expense, apart from what the son acquired from other sources. A similar distinction separates what a slave acquired ex re domini (= from his master’s means) from what he gained ex opera sua (= by his work).—Ex re sua = (acquisitions made) from one’s own property.

Ex re usufructuarii. See servus usufructuarius.

Berger, Philologus 73 (1914) 69.

Exactio. (From exigere.) Taking legal measures against a debtor for the recovery of a debt, enforcing payment legally. With regard to payments owed to the state (taxes), exactio tributorum = the levy, col­lection by the competent officials or authorized per­sons. Enforcing payment of public debts in a higher measure than was legal = superexactio.—C. 10.19; 20.—See PRIVILEGIUM EXIGENDI.

Exactor. A collector of taxes and other payments due to the state.—In public administration exactor indi­cates an inspector, a superintendent of public build­ings and works {opera publica).—C. 12.60.

Louis-Lucas, DS 2; De Ruggiero, DE 2, Seeck, RE 6, 1542; Lammers, RE 4A, 973.

Exaequare (exaequatio). To make different legal institutions or enactments equal in their legal force. According to Justinian’s statement, for instance, fidei­commissa exaequata sunt to legacies {legatis) in all respects. By the LEX HORTENSIA DE PLEBISCITIS the plebiscites were declared equal to statutes passed by the assemblies of the whole people.

Exauctorare. To discharge a soldier from the service. The term is used of both honorable and dishonorable discharges.—See missio.

Excantare fruges. To enchant the produce of an­other’s field by magical formulae in order to deprive the land of its fertility and to transfer the fruits to the enchanter’s plot. Such sorcery was punished as a crime according to the Twelve Tables.

F. Beckmann, Zauberei und Recht in Roms Friihzeit, 1928, 5.

Excellentia. Excellency. An honorary title of the praefectus praetorio.

Excellentissimus (vir). A general title appearing in imperial constitutions of the late Empire in connec­tion with high dignitaries.

Excelsa sedes. The office (court) of the praefectus praetorio.—C. 12.49.

Exceptae personae. Certain persons or groups to whom some legal prohibitions were not applied. There was no general rule establishing the persons thus privileged, the pertinent statutes designated the exceptae personae only within their own domain. Of particular importance were the rules concerning ex­ceptae personae of the lex cincia on donations. It admitted gifts—beyond the limitations established in the statute—in favor of the donor’s fiancee, the wife, relatives until the fifth degree and some of the sixth degree, the patron, the ward, and some other persons. —See LEX CINCIA.

Riccobono, Mel Girard 2 (1912) 415.

Exceptio. A defense opposed by the defendant to the plaintiff’s claim to render it ineffective and ex­clude the defendant’s condemnation as demanded by the plaintiff in the intentio of the procedural for­mula. Formally the exceptio was a clause in the formula containing an assertion of the defendant who, without denying the plaintiff’s claim in principle, opposed to it a legal provision (e.g., exceptio legis Cinciae, or legis Plaetoriae) or a fact not alleged by the plaintiff. Thus, for instance, the defendant asserts that he owes the sum claimed by the plaintiff, but according to a special agreement {pactum de non petendo) the plaintiff assumed the obligation not to sue for the money. The defendant’s objection made during the proceedings in iure, is inserted into the formula as a negative condition, to wit, the judge may condemn the defendant “if there has not been an agreement that the plaintiff will not bring an action.”—In the interdictal proceedings the exceptio is included in the interdict itself in the form of a negative conditional clause giving the defendant the right to disregard the praetor’s order if the fact men­tioned in the clause occurred. Some exceptions are an integral part of the interdict (e.g., exceptio vitiosae possessionis, exceptio annalis), others were inserted in a specific case by the praetor upon the request of the defendant. With the disappearance of the formu­lary procedure and the interdicts in their classical form, exceptio became any kind of defense applied by�?the defendant in order to paralyze, peremptorily or temporarily, the plaintiff’s claim.—Inst. 4.13; D. 44.1; C. 7.40; 8.35.—Texts in which literal quota­tions of exceptions occur in the Digest are listed in Vocabularium lurisprudentiae Romanae 2, 662 and 5, 450. See OPE EXCEPTIONS, DENEGARE EXCEPTIONEM,

nocere. In the following presentation the different kinds of exceptions are treated under exceptiones, the specific exceptions under exceptio.

Seckel, in Heumann’s Handlexikon zu den Guellen⁹ (1907) 180; Wenger, RE 6; Ferrini, NDI 5; Wlassak, Ursprung der röm. Einrede, Fg L. Pfaff, 1910; E. Weiss, Fschr Wach 2 (1913) ; J. Petrau-Gay, Exceptiones et praescrip­tiones, Paris, 1916; Biondi, AnPal 7 (1920) 3; Guarneri- Citati, St Perozzi, 1925, 245; Kipp, ZSS 42 (1921) ; R. Düll, Der Gütegedanke, 1931, 193; F. De Martino, Giuris­dizione, 1937, 83; Ramos, AHDE 16 (1945) 720; Solazzi, AG 137 (1949) 3; Levy, Iura 3 (1952) 157.

Exceptio cognitoria. An exceptio by which the de­fendant denied the plaintiff’s right to be a cognitor in the trial, either because the principal creditor was not able to appoint a representative, or because the cognitor had not the qualifications to represent an­other. See COGNITOR, EXCEPTIO procuratoria.

Lenel, Edictum perpetuun? (1927) 502.

Exceptio conventionis. Functions the same way as exceptio pacti and is based on a special agreement

which excludes the plaintiff’s claim. Analogous is exceptio transaetionis.

Exceptio curatoria. An exceptio by which the de­fendant denies the plaintiff’s right to act as a curator of the real creditor.

Exceptio doli. This was opposed by the defendant sued for the fulfillment of an agreement and based on the allegation that the plaintiff had acted fraudu­lently (dolo). The formulary wording of this ex­ceptio was: si in ea re nihil dolo malo Auli Agerii (of the plaintiff) jactum sit (= “if in this matter no fraud has been committed by the plaintiff”). The exceptio doli was strengthened by an additional clause, attached to the foregoing words, “neque fiat” which refers to the actual action of the plaintiff in the sense “nor is being committed by him,” i.e., that his suit itself is not a fraud (inequitable). About this general applicability of the exceptio doli it is said: “he who makes a demand which may be broken down by an exception whatsoever, commits a fraud” (D. 44.4. 2.5). Therefore an exceptio doli can be opposed. Thus by the initiative of the praetor and the jurists the exceptio doli, originally a merely procedural meas­ure, acquired a positive function, promoting the de­velopment of the substantive law through the pro­tection of formless agreements not recognized by the ius civile (additional agreements connected with the transfer of property through mancipatio, constitution of servitudes, agreements attached to a stipulatio, and so on). A maxim gained currency that the exceptio doli is implied in the bonae fidei iudicia (D. 24.3.21), inasmuch as the judge has to decide on grounds of good faith, which gave him the opportunity to take into consideration all elements which might let the plaintiff’s claim appear inequitable. To those ele­ments belonged not only fraud committed at the con­clusion of the transaction but also all circumstances which qualified the suit itself as being against good faith. Therefore, the insertion of an exceptio doli into the formula which contained already the clause “ex fide bona” was superfluous. The mechanism of the exceptio doli allowed the judge to consider coun­terclaims of the defendant (such as expenses he made on the thing claimed by the plaintiff) and condemn the defendant only for the balance (see compen­sate).—D. 44.4.—See dolus, iudicia bonae fidei, RETENTIO.

Kleinfeller, RE 5 (s.v. dolus); Vita, NDI 5, 144; E. Costa, La e. d., 1897; Biondi, AnPal'7 (1920) 5; Beseler, ZSS 45 (1925) 245; Riccobono, AnPal 14 (1930) 405, 437; E. Protetti, Contributi allo studio deU’efficacia dell’e.d., 1948.

Exceptio intercessionis. See SENATUSCONSULTUM VELLEIANUM.

Exceptio iurisiurandi. See iusiurandum volun­TARIUM.

Exceptio iusti dominii. An exception of which the owner of a thing at ius civile could avail himself against a plaintiff who based his claim for recovery of the thing on possession only (actio Publiciana in rem).

Exceptio legis Cinciae. See lex cincia.

Exceptio legis Falcidiae. See lex falcidia. Exceptio legis Plaetoriae. See lex plaetoria.

Exceptio litis dividuae. This may be opposed when the plaintiff after having sued for a part of the debt, claims the remainder thereof in a second trial during the same praetorship. The exception is dilatory, the plaintiff having to expect the next praetor’s term of office. A similar exceptio is the exceptio litis resi­duae, applicable when a plaintiff who has several claims against the same defendant sues only for one of them in order to vex the latter with another trial under the same praetorship.

Buckland, RHD 11 (1932) 311.

Exceptio litis residuae. See the foregoing item.

Exceptio metus (de metu, quod metus causa). An objection by the defendant that he assumed the obli­gation for which he is sued, under duress (metus). —D. 44.4.—See metus.

Exceptio ne praeiudicium hereditati fiat. See here­ditatis PETITIO.

Exceptio non adimpleti contractus. The defendant’s objection that the plaintiff did not fulfill his duties reciprocally assumed in the contract on which he based his claim.

R. Cassin, De Perception tirce de I’inexccution, 1914.

Exceptio non numeratae pecuniae. This exceptio, analogous to the foregoing, is of later origin. The defendant objects that he did not receive the money from the plaintiff for the restitution of which he is being sued. Such things happened when the debtor issued a written document for a debt before receiving the money.—C. 4.30.—See querela non numeratae PECUNIAE.

Platon, NRHD 33 (1909) 452; Suman, AVen 7S, 2 (1919) 225; Kreller, 57 Riccobono 2 (1936) 285.

Exceptio pacti (conventi). An exceptio based on an additional agreement between creditor and debtor which modified the original obligation, as, for in­stance, not to claim the debt in a judicial trial at all, or within a certain time. In the latter case the ex­ception was dilatory.

Biondi, AnPal 7 (1918) 50; Koschaker, Abhandlungcn zur antiken Rechtsgesch., Fsch Hanausck, 1925, 139.

Exceptio pigneraticia. Mentioned in a specific case of an action brought for division of common property (actio communi dividundo) by a co-owner against his partner to whom the claimant had pledged his por­tion. The exceptio is opposed by the pledgee co­owner in order to be taken into consideration by the judge at the division.—See exceptio rei ante pig­neratae.

Last, GrZ 36 (1909) 457.

Exceptio procuratoria. The counterpart to the ex­ceptio cognitoria in the case that the creditor is repre­sented in a trial by a procurator. Through this ex­ceptio the defendant objects that the plaintiff’s representative has no right to act as a representative {procuratorio nomine). The exceptio is dilatory, the creditor having the opportunity to sue again either personally or through another representative.—See EXCEPTIO COGNITORIA, PROCURATOR (in a C1V11 trial). Solazzi, RISG 83 (1949) 60.

Exceptio quod metus causa. See exceptio metus.

Exceptio rei ante pigneratae. This served the pro­tection of the rights of a creditor to whom the debtor had pledged a thing, against another creditor to whom the same thing was hypothecated later.—See pignus, hypotheca.

Exceptio rei in iudicium deductae. See exceptio rei lUDICATAE.

Exceptio rei iudicatae. An exception opposed by the defendant and based on the fact that he had been sued for the same thing {eadem res) in a previous trial and a judgment had been passed in thè matter. Identity of the plaintiffs was not necessary since the exceptio might be used against the successor of the claimant in the trial. There was a maxim: “Good faith does not permit that the same thing be claimed twice” (D. 50.17.57). The most important point in the application of this exceptio was the iden­tity of the claims (eadem res). A similar exceptio was the exceptio rei in iudicium deductae which was available when in the first trial a judgment had not been rendered but the joinder of issue {litis contes­tatio) had been reached.—D. 44.2.—See bis idem EXIGERE, RES IUDICATA, LITIS CONTESTATIO.

Eisele, ZSS 21 (1900) ; Leonhard, Fg Dahn 2 (1905) 65; Manenti, BIDR 21 (1909) 139; Weiss, Fschr Wach 2 (1913) ; Pflüger, ZSS 43 (1933) ; Guarneri-Citati, BIDR 33 (1923) 204; Siber, ZSS 65 (1947) 1.

Exceptio rei litigiosae. See res litigiosa.

Exceptio rei venditae et traditae. An exceptio op­posed by the defendant sued for the delivery of a thing of which the plaintiff asserts to be the owner. The defendant, on his part, objects that he bought the thing and that it was delivered {tradita) to him by the seller.—D. 21.3.

Ferrini, Opere 3 (1929, ex 1891) 275; Last, GrZ 36 (1909) 490; J. Gonvers, E. r. v., Thèse, Lausanne, 1939.

Exceptio restitutae hereditatis. Connected with fideicommissum hereditatis. The heir who ac­cording to the testator’s disposition handed over the whole estate to a fideicommissarius when sued for the testator’s debts might oppose the exceptio restitutae hereditatis, and similarly he was exposed to this ex­ceptio if he sued a debtor of the testator. In earlier law, when the rule semel heres semper heres was strictly observed, the heir could avoid any risk by demanding a cautio for indemnity from the real suc­cessor. The senatusconsultum trebellianum es­tablished the liability of the fideicommissarius which made superfluous special agreements between the in-

[TRANS. AMER. PHIL. SOC. stituted heir and the real beneficiary to whom he delivered over the inheritance.

Exceptio senatusconsulti Macedoniam. See sena­tusconsultum macedonianum.

Exceptio senatusconsulti Trebelliam. See senatus­consultum TREBELLIANUM, EXCEPTIO RESTITUTAE HEREDITATIS.

Exceptio senatusconsulti Velleiani. See senatus­consultum VELLEIANUM.

Exceptio transactionis (transacti negotii). Has a similar function as the exceptio pacti or exceptio con­ventionis. It may be opposed by the defendant if the plaintiff sues for a debt on which he concluded a modifying transaction with the former.

Exceptio tutoria. An exceptio opposed to the plaintiff on the allegation that he is not the guardian of the person in whose name he is suing.—See exceptio CURATORIA.

Exceptio vitiosae possessionis. Applicable in pos­sessory interdicts. The actual possessor of a thing is protected in his possession against anybody except the case that he himself acquired possession from his adversary (i.e., the claimant in the interdictal pro­ceeding) in a defective way {vitiose).—See inter­dictum UTI POSSIDETIS, CLANDESTINA POSSESSIO, POS­SESSIO INIUSTA.

Exceptiones annales. In actions which lie only for one year in favor of the claimant, the defendant may ask for an exception that the one-year period elapsed when the suit was brought after this period. In the domain of interdicts some of them contained a clause that the praetor’s order is valid only if issued within a year after the fact against which the plaintiff remon­strates {exceptio annalis).—C. 7.40.—See actiones TEMPORALES.

Exceptiones civiles—honorariae. Exceptions which are based on the ins civile (statutes, as, e.g., excep­tiones legis Cinciae, Plaetoriae, or senatusconsulta, as, e.g., exceptiones Senatusconsulti Macedoniani, Vel­leiani) are distinguished from exceptions of prae­torian origin, introduced either in the praetorian edict or granted in a specific case, exceptiones in factum.

Exceptiones dilatoriae. Exceptions valid only for a certain space of time, for instance, the exceptiones pacti based on an agreement by which the plaintiff bound himself not to sue the debtor within a certain time. When the time fixed elapsed, the exceptio was without effect. Syn. exceptiones temporales. Ant. EXCEPTIONES PEREMPTORIAE {perpetuae).

Kipp, ZSS 42 (1921) 328; Solazzi, AG 137 (1949) 3.

Exceptiones in factum. Exceptions granted by the praetor in specific cases, although not established either by law (in statutes or senatusconsulta) or in the praetorian edict. The insertion into the formula was decided by the praetor after a thorough examina­tion of the case {causa cognita).

Biondi, AnPal 7 (1918) 50.

Exceptiones in personam. A term not evidenced in the sources, but applied in literature as opposite to EXCEPTIONES IN REM.

Exceptiones in rem (scriptae). Exceptions which may be opposed to any claimant if the transaction on which the suit is founded was essentially defective, as, e.g., in the case of duress under which the defendant assumed an obligation. Therefore such exceptio was effective also against a plaintiff who did not take part in the act of force exercised on the debtor. Ant. exceptiones in personam (a term coined in litera­ture) when the exceptio could be set forth against one plaintiff only for an action in which he partici­pated, as the exceptiones for fraud {exceptiones doli). A counterpart to this distinction are the exceptiones PERSONAE COHAERENTES and rei Cohaerentes.

Exceptiones peremptoriae. Exceptions which “are valid at any time and cannot be evaded” (Gaius, Inst. 4.120) when opposed by the defendant. Such excep­tions, if sufficiently proved, make the plaintiff’s claim void. Most exceptiones are peremptory; thus, e.g., exceptio metus, exceptio rei iudicatae, exceptions ’ based on statutes or senatusconsulta. Syn. excep­tiones perpetuae; ant. exceptiones dilatoriae (tem­porales).

Kipp, ZSS 42 (1921) 328; Devilla, StSas 19 (1942) 92; Solazzi, AG 137 (1949) 3.

Exceptiones perpetuae. See exceptiones peremp­toriae.

Exceptiones personae cohaerentes. Exceptiones which only the defendant himself (not his sureties) may oppose, as, for instance, the exceptio “quod jacere possit” available to a parent, patron or partner to the effect that he be condemned to an amount within his means (see beneficium competentiae), the exceptio being strictly personal. Ant. excep­tiones rei cohaerentes, which are available also to sureties for they impugn the matter of the contro­versy itself, such as, for instance, exceptiones doli, iurisiurandi, rei iudicatae, metus, etc.

Exceptiones quae minuunt condemnationem (dam­nationem). Exceptiones which do not wholly para­lyze the plaintiff’s claim but produce only the effect that the defendant is condemned to a sum smaller than originally claimed by the plaintiff. The existence of this type of exceptions in classical law is contro­versial. Those exceptions cover all cases where the defendant was permitted to invoke the so-called BENEFICIUM COMPETENTIAE. See COMPENSATIO.

Wenger, RE 6, 1557; Ferrini, NDI 5, 736; Arangio-Ruiz, Exc. in diminuzione della condanna, 1930; Solazzi, BIDR 42 (1934) 268.

Exceptiones rei cohaerentes. See exceptiones per­sonae COHAERENTES.

Exceptiones temporales. See exceptiones dilato­riae.

Exceptor. A scribe, short-hand writer, in court, in the senate, or the offices of higher officials. Their pri­mary task was to keep the minutes of meetings or events which took place in the offices mentioned. In the imperial bureaucracy the number of exceptores increased considerably. They were employed also in the headquarters of military commanders.—C. 12.49. Fiebiger, RE 6, 1565; Cagnat, DS 2; Jones, JRS 39 (1949) 53.

Excipere. To oppose an exception against the claim of the plaintiff. In setting forth an exception (ex­cipiendo) the defendant assumes the role of a plain­tiff (reus actor"est, D. 44.1.1) since he has to prove the facts alleged in his assertion (D. 22.3.9).

R. Dull, Der Gutegedanke, 1931, 187; Levy, lura 3 (1952) 157.

Excipere. (In transactions.) To insert a clause in favor of a party primarily of one who alienates some­thing (e.g., excluding the liability of the seller of a slave for certain defects) or of the slave being sold (e.g., binding the acquirer to a certain behavior to­wards him).

Excipere mortem. To be condemned to death.

Excipere poenam (sententiam). To be sentenced in a criminal trial.

Excipere servitutem. To reserve a servitude or an­other right (iter, usum, habitationem, etc.) on behalf of the alienator when the ownership of an immovable is being conveyed.

Excipere usumfructum. See deductio ususfructus. Excludere. To exclude a person from certain legal benefits or from the use of a procedural remedy.

Excusationes a muneribus. Exemption from public compulsory services (munera) were granted to women, men under twenty-five or over seventy, fathers of three children (four in Italy, five in provinces) ; it was limited, however, in these cases to exemption from personal services (munera personalia). Ex­emptions were also extended to certain professions (physicians, teachers), shippers, veterans, and mem­bers of municipal councils (decuriones). In granting exemption, poverty could be taken into consideration. After the time of Constantine, appeal (querela, queri­monia) to the governor of the province was per­mitted.—D. 50.5; C. 10.48—59; 66.—See munera, MEDICI, MAGISTER, PHILOSOPHI, POETAE.

Kubler, RE 16, 648.

Excusationes a tutela. Persons called to guardianship by law or by testament were entitled to claim exemp­tion (excusatio) because of certain circumstances, permanent or temporary, which made the fulfillment of their duties as guardians (tutores or curatores) impossible or very onerous to them. Among such grounds for exemption were age of seventy, high office, poverty, a certain number of children (three in Rome, four in Italy, five in the provinces) three tutorships already sustained, chronic illness, incapac­ity to manage another’s property, and the like. Some grounds of exemption were available only with regard to specific guardianships, as, for instance, enmity against the ward’s family.—Inst. 1.25; D. 27.1; C. 5.62-68; 10.48, 66.—See libellus contestatorius.

Klingmuller, RE 6; Humbert, DS 2; Sachers, RE 7A, 1534; Albertario, Studi 1 (1933) 427.

Excussus. See EXCUTI.

Excutere rationes. To examine the accounts concern­ing the administration of property (e.g., of a ward by his guardian).—See administrate.

Excuti. If a creditor has an action for the same claim against different persons, for instance, against the principal and a surety, he must sue them in a definite order, inasmuch as the action against a subsidiary debtor is admissible only when the trial against the debtor first sued has not resulted in the payment of the debt (because of the insolvency of the defendant or for other reasons). The defendant so fruitlessly sued was termed excussus.—See beneficium excussionis.

Executio, executor. See exsecutio, exsecutor.

Exemplar (exemplarium). The original of a docu­ment. Syn. authenticum. Ant. exemplum. Testators used to make testaments in two original copies; if one was lost or destroyed by accident, the other was valid. The opening of merely one original was considered the opening of the testament; see apertura testa- MENTI.-- See PARICULUM.

L. de Sarlo, Il documento oggetto di rapporti giuridici, 1935, 82; B. Biondi, Successione testament aria, 1943, 66.

Exemplum. A copy of a document. Ant. exemplar, authenticum. In a few texts the term is used in the meaning of an original. Sometimes it is also used of a draft of a testament which is not valid if the tes­tator dies before the formalities of a valid testament are accomplished.—Exemplum indicates a prece­dent, or what serves as a pattern.—Punishment in criminal matters is denoted an exemplum = serving as a deterrent warning.—Exemplo or ad exemplum is used when a legal remedy analogous to an existing one is granted (e.g., an actio utilis), or when a legal situation is dealt with in a similar way as another one, governed by a statute embracing similar legal situations (exemplo legis Aquiliae, for instance).— See RES IUDICATA.

Wiinsch, RE 6; Kiibler, St Riccobono 1 (1936) 435; L. de Sarlo, Il documento oggetto di rapporti giuridici, 1935, 82; F. v. Schwind, Zur Frage der Publikation, 1940, 137; H. Kornhardt, Exemplum, Diss. Gottingen, 1936; B. Biondi, Successione testamentaria, 1943, 67.

Exemptio (eximere). (From summons to court.) Taking away a person summoned to court (see in ius vocatio), by force or fraud to frustrate the sum­mons and make impossible his appearance before the magistrate. The praetorian edict introduced an ac­tion against the wrongdoer.

Pugliese, RIDA 3 {—Mel De Visscher 2, 1949) 266.

Exercere. To carry on, practice, a profession. It is used not only of merchants, shipowners, bankers, inn­keepers, etc., but also of ignominious professions (prostitutes, actors, matchmakers).

Exercere actionem. (Indicium, litem, exceptionem, appellationem.} To use a judicial measure either in order to claim a right against another person or in defense against another’s claim. See actio. In criminal affairs exercere accusationem, crimen = to accuse. Civiliter exercere — to sue in a civil trial.

Exercere navem. See exercitor navis.

Exercere pecuniam (fenus). To lend money on in­terest. Exercere pecuniam apud nummularios — to invest money with a banker with profit.

Exercere vectigal. To levy, collect taxes. Exercitator. A military instructor.

Bartoccini, DE 2.

Exercitor navis. A shipper, either the owner or lessee of a commercial ship used for the transportation of men and goods. “He is the man to whom the daily profit gained by shipping belongs” (Inst. 4.7.2). When he employs another as captain (magister navis), he is liable on the contracts concluded by the latter. The action lying against him was introduced by praetorian law, actio exercitoria. It belongs to the category of so-called actiones adiecticiae qualitatis (non-Roman term). These were “additional” actions (actio adi- citur: D. 14.1.5.1) under which a person (a father, a slave’s master, a principal, a shipper) under certain circumstances could be sued for acts done by his subordinate (a son, slave, employee) in the manage­ment of a peculium or a commercial business as his agent or on his order. The responsibility of the father and the other persons was additional to that of the subordinate although they did not participate in the latter’s agreements or transactions.—D. 14.1; C. 4.25. See ACTIO TRIBUTORIA, PECULIUM, IUSSUM, IN­STITOR.

Humbert, DS 2 (s.v. exercitoria a.); Del Prete, NDI 5 (j. eod. v.) ; Valeri, RDCom 21 (1913) 14; Chialvo, 57 F. Berlingieri, 1933, 171; Ghionda, RDNav 1 (1935) 327; De Martino, ibid. 7 (1941) 5; Solazzi, ibid. 7 (1941) 185 and 9-14 (1943-1948).

Exercitus. The army. It is composed of pedites ( — infantry) and equites (= cavalry). Classis — the navy. For the legal status of the soldiers, see milites. See LEGIO, AUXILIA, COHORS, EQUITES, HASTATI, VELATI, MILITIA, MANIPULUS, DILECTUS, NUMERI, DIPLOMA, MISSIO, ALA, TURMA.

Liebenam, RE 6; Cagnat, DS 2, 912.

Exhauriri. To be expended wholly. It is used of in­heritances which are exhausted by legacies to be paid by the heir.—See lex falcidia.

Exheredare. To disinherit. A son under paternal power (filius familias) must be disinherited by his father (pater familias) in the latter’s testament by name (nominatim) or in any other way which admits of no doubt about the person meant. Syn. exheredem facere. Under ius civile a testament was void if the testator failed to institute his son (heres suus) as an heir or to disinherit him. Disinheritance of other persons, however, could be accomplished by a general clause (“all others shall be disinherited”). The jurists did not favor disinheritance in their opinions. Their principle was: “disinheritance must not be supported” (D. 28.2.19). The testator was not obliged to indicate the reason of the disinheritance. —Inst. 2.13; D. 28.2; C. 6.28.—See lex iunia vel- LAEA, PRAETERIRE, EXHERES.

Klingmüller, RE 6; Humbert, DS 2; Azzariti, NDI 5 (s.v. diser edazione) ; J. Merkel, Justinianische Enterbungs­gründe, 1908.

Exheres. See exheredare. The term was used in the disinheriting clause (“Titius exheres esto” — Titus shall be disinherited).

Exhibere. To display, “to produce (a thing, a slave) in public (i.e., during a trial) in order to give the plaintiff the chance to proceed with his suit” (D. 10.4.2). The pertinent action to enforce the de­fendant to produce in court the movable thing in dispute when sued for its delivery (by rei vindi­catio) he fraudulently denied having, was the actio ad exhibendum. In many cases the action served to prepare a future rei vindicatio which followed if the exhibited thing was in fact that very one which the plaintiff wanted to claim. This occurred, for in­stance, when a legatee was given by a testator the right to choose among the slaves of the inheritance, see optio servi. The actio ad exhibendum was avail­able when a plaintiff before suing the master of a slave for damages with an actio noxalis had to iden­tify first which of the defendant’s slaves was the wrongdoer. A specific application of the action was in a case of accessio when a person joined the plain­tiff’s thing to one of his own (e.g., set a gem belong­ing to the latter in a ring of his own). Through the actio ad exhibendum the plaintiff obtained the sep­aration of his thing and its production in court, and might sue afterwards for recovery by a rei vindicatio. Even in cases when the thing to be claimed no longer existed (if, e.g., it was consumed by the defendant or destroyed or if the defendant intentionally gave up possession, dolo desinere possidere), the actio ad exhibendum was available for damages. The action was an actio in personam and had the advantage for the plaintiff, that the defendant could not refuse co­operation in the trial since in that case he was con­demned to full indemnification.—D. 10.4; C. 3.42.— See ACTIONES ARBITRARIAE, ACTIONES IN PERSONAM, furtum non exhibitum, and the following items. Several interdicts are concerned with an exhibere, see interdictum de homine libero exhibendo, INTERDICTUM DE LIBERIS EXHIBENDIS, INTERDICTUM DE LIBERTO EXHIBENDO, INTERDICTUM DE UXORE EX­HIBENDA, INTERDICTUM DE TABULIS EXHIBENDIS.

Ferrini, NDI 1 (s.v. actio ad e.) ; Aru, NDI 5; Humbert, DS 2; Last, GrZ 36 (1909) 433; Lenel, GrZ 37 (1910) 546; idem, ZSS 37 (1916) 116; idem, Edictum perpetuum³ (1923) 220; Beseler, Beiträge 1 (1910) 1; Last, IhJb 62 (1921) 120; Levy, ZSS 36 (1917) 1; Wlassak, ZSS 42 (1921) 435; G. Levi, Studi Μ. d’Amelia 2 (1933) 311. Exhibere debitorem (reum). Refers to a guarantor who undertook to answer that a defendant in a civil trial would appear in court at a fixed date. His duty was to “produce” the defendant. See vindex. In a criminal trial exhibere reum — to submit to court a culprit of whom one had assumed the custody.—D. 48.3; C. 9.3.

Exhibere hominem liberum. In connection with the INTERDICTUM DE HOMINE LIBERO EXHIBENDO exhi­bere is defined “to produce in public (i.e., in court) and to make it possible to see and touch the man” (D. 43.29.3.8).—D. 43.29; C. 8.8.

Exhibere instrumenta. To produce documents for the purpose of evidence. It could be judicially en­forced if it was in the interest of the adversary in the trial.—See exhibere tabulas.

Exhibere rationes. To produce accounts concerning the management of another’s affairs (for instance, on the part of a guardian with regard to the ward’s property).

Exhibere reum. See exibere debitorem.

Exhibere tabulas (testamenti). To produce a testa­ment. It could be enforced by a person interested in the knowledge of the contents as a presumptive bene- ciary.—D. 43.5; C. 8.7.—See interdictum de tabu­lis exhibendis.

Exhibere uxorem (familiam, patronum). To sus­tain, support one’s wife (family, or patron). In an­other meaning exhibere uxorem is used in connection with the interdictum de uxore ducenda.—See inter­dictum DE LIBERIS EXHIBENDIS.

Exhibitio. See EXHIBERE.

Exigere. See EXACTIO.

Exilium (exsilium). A person involved in a criminal matter might voluntarily go into exile in order to escape a trial or a condemnation when the trial was already in course. Exilium also was a compulsory departure from the country if given as a punishment. Voluntary exile was tolerated in the case of a person sentenced to death in a criminal trial, but in such cases there followed an administrative decree which out­lawed the fugitive (interdicere aqua et igni). It deprived him of Roman citizenship (capitis deminutio media) and his property. Illicit return was punished by the death penalty. The consequences of a com­pulsory banishment varied according to the crime; they were fixed in the judgment. A milder form of banishment was relegatio, while the severest one was deportatio. The terminology later became rather uncertain.—C. 10.61.—See ius exilii, viati­cum.

Kleinfeller, RE 6; Humbert, DS 2; Berger, OCD; Bragin­ton, CIJ 39 (1943-44) 391; U. Brasiello, Repressione pe­nale, V)37, 272.

Eximere. To exempt, to free, to release a person from liability (obligatione), from special personal charges, such as guardianship (a tutela), or from penalty (poena, damnatione).—See exemptio.

Exire. When used of persons, to leave the family (de familia) by entering into another one or becom­ing sui iuris. Such steps were connected with exire de (ex) potestate ( — to be released from the actual power of the head of the family). When referring to things (exire de familia, de nomine) exire = to depart from one property and enter another.

Existimare (existimatio). To assume, to consider (for instance, a thing belonging to another as one’s own). An erroneous belief (thinking) is irrelevant from the juristic point of view. “More important is the truth (res) than the belief (existimare)" (D. 22.6.9.4). Exceptionally, however, as in the case of usucapio a wrong opinion of the possessor of a thing may lead to his acquisition of ownership.—See ERROR.

Existimatio. The respect or esteem a person enjoys in society. “It is the state of undiminished dignity ap­proved by law and custom” (D. 50.13.5.1). The existimatio of a person remains unharmed (integra, illaesa) as long as he does not commit a wrongdoing or a crime by which it “is diminished or extinguished under the authority of the laws” (D. ibid.).—See INFAMIA, TURPIS PERSONA, TURPITUDO.

U. Brasiello, La repressione penale, 1936, 546; Cicogna, StSen 54 (1940) 51.

ExitUS. See EVENTUS.

Exonerare. To relieve, release (from a debt, or a public charge). Syn. eximere.

Expedire. To settle a controversy through a trial or extrajudicially; to accomplish a legal act (e.g., a manumission) ; to bear the expenses of a thing; to carry through as official matter.

Expellere. To dispossess a person by force from the use of his property. Syn. deicere de possessione.

Expellere uxorem (virum). To expel a wife (hus­band) from the common dwelling (domo) for the purpose of divorce.

Expendere. To pay out, to spend. Rationes accepti et expensi = a housebook for entries of income and disbursements.—See codex accepti et expensi, EXPENSILATIO.

Expensae. Expenses. Syn. impensae, sumptus.

Expensae litis. Syn. sumptus litis, impensae litis.— C. 7.51.—See sumptus litis.

Expensilatio. (From expensum ferre.) The making of an entry in a ledger, by which a person was charged with a debt in such fashion as if it were given to him as a loan. If made in the books of a banker, it created an obligation, obligatio litteris con­tracta.-------- See CONTRACTUS, NOMINA TRANSSCRIPTICIA.

Anon., NDI 5; Appert, RHD 11 (1932) 625.

Expensum ferre. See expensilatio.

Experiri actione (interdicto). To claim a right by a suit (or interdict). Experiri ius = to pursue a right. Potestas experiundi — the right to sue.

Beretta, RISG 85 (1948) 387.

Expilare hereditatem (expilatio). To purloin a thing belonging to an inheritance before the heir enters Upon it. See CRIMEN EXPILATAE HEREDITATIS.—See USUCAPIO PRO HEREDE.

Expilator. A plunderer, a “more atrocious thief” (D. 47.18.1.1).

Explere. To fulfill (a mandate, a condition imposed by a testator, and the like). Explere tempus usuca­pionis — to possess a thing for the full time necessary for an usucapio.—See usucapio.

Explorare (exploratio). In military service, to recon­noiter, to try to get information about enemy troops. In exploratione esse — to be put at a place to ob­serve the enemy’s movement. A soldier who leaves such a post, even though forced to do so under the pressure of the enemy, was punished by death.

Explorator. A scout, a spy.—See explorare, pro­ditor.

Bartoccini, DE 2.

Exploratus. In phrases like explorati iuris est, explo­ratum est, it is established, ascertained (law).

Exponere. With reference to written deeds, to write down (a donation, a security, cautio). The term belongs to the language of the later imperial consti­tutions.

Exponere filium (liberum). To expose, abandon a child in order to get rid of it. By doing so the father lost the patria potestas over the infant. The person who took him home and brought him up (nutritor) as of his own (alumnus) or as a slave, acquired power over him and might sell him as a slave. Later imperial legislation forbade the custom, but in vain. Parents were given the right to redeem a child that had been exposed, but were obliged to compensate the person who had raised him. The latter had to declare whether he would foster the child as free or slave, until Justinian ordained that any exposed child was to be considered free.—C. 8.51.

Mau, RE 2 (s.v. Aussetzung} ; Weiss, RE 11 (s.v. Kinder- aussetzung) ; Albertoni, Apokeryxis, 1923; Carcopino, Le droit rom. d’ ex position, M emoires de la Societe des Anti- quaires en France, Ser. 8, vol. 7 (1924-27) 59; Fournier, RHD 5 (1926) 302; Radin, CU 20 (1925) 337; Volterra, St Bcsta 1 (1939) 455; Lanfranchi, SDHI 6 (1940); P. Delafon, Droit d'exposition d’enfants a Rome, These, Montpellier, 1942; C. W. Westrup, Introduction to Early R. Lazu, I, 1 sect. 1 (1944) 248; Solazzi, RISG 86 (1949) 14.

Exponere servum (in insulam Aesculapii). Sick slaves abandoned by their masters (on the island of Aesculapius in the Tiber) to avoid expenses for medical cure became free under an edict of the emperor Claudius (a.d. 46-47).

Fasciato, RHD 27 (1949) 452.

Exportare. To send abroad (merchandise, slaves, etc.). Later imperial legislation forbade the export of certain commodities (such as wine or oil) to enemy countries. Export of weapons of any kind to an enemy state was punished by death and seizure of property.—C. 4.41.

Expositio filii. See EXPONERE FILIUM.

Expostulare. To address a complaint to a magistrate. Expressa. “What was expressly stated is prejudicial, what was not expressed, is not prejudicial” (D. 50.17.195). The rule applies to statements concern­ing the object of a sale.—See dicta.

Exprimere. To express. The term is frequently ap­plied to testamentary dispositions or legal norms in­troduced by statutes, senatusconsulta and imperial constitutions.---------------- See EXPRESSA.

Expromissio (expromissor). See the following item. Expromittere (expromissio). To transfer an exist­ing obligation into a stipulatio by which a stipulatory obligation replaced the original debt. On this occa­sion a change in the person of either the debtor or the creditor might occur when the debtor stipulated his debt to a new creditor (with the consent of the former creditor) or when a new debtor (expromissor) assumed another’s debt towards the same creditor. Through such a transaction the former debtor was released if the creditor agreed to it. Sometimes ex­promittere has the same meaning as promittere.—See DELEGATIO.

De Villa, NDI 5.

Expugnare (navem, ratem). To subdue by force (a boat, vessel, rates — a bark, a raft).—D. 47.9.

Exrogatio legis. A partial repeal of a statute through the passage of a new one.—derogare.

Exsecratio. A self-malediction. An oath was often combined with the imprecation of an evil or a curse upon oneself if one failed to carry out the terms of the oath. This made non-fulfillment a crime against the gods which resulted in exclusion from sacred rites. Pfaff, RE Suppl. 4; De Ruggiero, DE 2, 2182.

Exsecrationes (defixiones). Maledictions written on metal tablets and directed against a personal enemy of the writer.

De Ruggiero, DE 2.

Exsecutio. (From exsequi.) With regard to crimi­nal matters, prosecution of a criminal through accu­sation and trial; in civil matters = the claim on the part of a creditor of his right against a debtor, in particular against one who had been condemned in a civil trial and did not fulfill the judgment debt. The execution of a judgment in a civil trial was either personal (on the person of the judgment debtor) or real (on his property).—C. 7.53.—See iudicatum, LEGIS ACTIO PER MANUS INIECTIONEM, PIGNORIS CAPIO, ADDICTIO, DUCI IUBERE, MISSIONES IN POSSES­SIONEM, BONORUM VENDITIO.

L. Wenger, Actio iudicati, 1902, 7; A. d’Ors, AHDE 16 (1945) 747.

Exsecutor (negotii, litis, litium). A court clerk serving as an official organ of summons in the pro­ceedings of the later Empire. The defendant pays fees to the exsecutor and must give security (cautio iudicio sisti) that he will appear in court until the end of the trial. In the case of his refusal, the exsecutor may take him into custody. The exsecutor was also in charge of the execution of judgments. In Justinian’s procedure the institution of exsecutores negotii underwent a radical change. They were pri­vate, influential individuals of high rank and their functions were enlarged as well as their financial profits.—C. 12.60; Nov. 96.—See sportulae.

Arangio-Ruiz, BI DR 24 (1911) 226; Partsch, Nachr. Gotting. Ges. Wiss., 1911, 241; Rostowzew, RE 6; Thomas, Etudes Girard 1 (1912) 379; A. Steinwenter, Versäum­nisverfahren, 1914, 131; Balogh, Si Riccobono 2 (1916) 449; P. Collinet, Procedure par libelle, 1932, 79, 464, 480; Giffard, RHD 14 (1935) 732.

Exsecutor testamenti. The term and the institution are unknown to Roman classical law. According to the modern conception the exsecutor testamente is a person holding an estate in trust, and administering and distributing it according to the testator’s wishes. The familiae emptor in the early Roman law fulfilled a similar task but the juristic structure of the two institutions is different. Later imperial legislation recognized the designation of a person in a testament for the fulfillment of specific dispositions of the testa­tor connected with charitable purposes, such as ran­som of prisoners of war, foundations (piae causae), and the like.

Kühler, RE 5A, 1013 (s.v. Testamentsvollstrecker) ; E. Caillemer, Origine de ! execution testamentaire,.1901; Bruck, GrZ 40 (1914) 533; B. Biondi, Successione testa­mentaria, 1943, 607; Macqueron, RHD 24 (1945) 150.

Exsecutores. Officials in the late Empire authorized to enforce the payment of taxes and fiscal debts. Syn. intercessores.

Exsecutores rei iudicatae (sententiae). Officials charged with the execution of judgments.—See exse­cutor (negotii).

Exsequi. To perform a legal act, to pursue a matter in court to its end (actionem, litem), to prosecute a crime in a penal trial until sentence, to execute a judgment debt (sententiam, rem iudicatam). Gen­erally exsequi is applied to the activity of the various types of EXECUTORES.

Exsilium. See exilium.

Exsistere. Condicio extitit, see condicio.

Exsolvere (exsolutio). See solvere, solutio.

Exspirare. To become void, extinguished. Syn. eva­nescere, exstingui.

Exstare. To exist. Exstat = there is. The term is frequently used with reference to existing legal rules (exstat edictum, senatusconsultum, rescriptum) to point out “there is” a legal norm for the case under discussion.

Exstinguere. To annul, cancel (an agreement, a con­tractual clause, a condition, a legacy). Exstingui (syn. evanescere, exspirare) is applied to the extinc­tion of rights and the obligations connected therewith, (an action, a servitude, a usufruct, a stipulation, a. legacy).

Exsul (exui). A man living in voluntary or com­pulsory exile.—See exilium.

Exter, exterus. See EXTRANEUS.

Extorquere. To extort, to force a person to give or to do something, or to perform a legal act (to promise by stipulatio, to give security).—See metus, vis.

Extra iudicium. Outside the court, extra judicially.

Extra ordinem. Beyond the normal order of things. —See COGNITIO EXTRA ORDINEM, EXTRAORDINARIUS.

Wlassak, Kritische Studien zur Theorie der Rechtsquellen, 1884, 85; Lauria, ANap 56 (1934) 308; Orestano, StCagl 26 (1938) 170.

Extraneus (exter, exterus, extrarius). One who is outside; not belonging to a certain family or being no relative of a certain person (for instance, of the woman for whom one constitutes a dowry). Ex­traneus is also any third person not involved in a given transaction or situation, as, for instance, in possessory controversies between two persons, any one who never had possession of the thing under dispute. Syn. persona extranea.

Guarino, ZSS 61 (1941) 378.

Extraneus heres. An outside heir who is not subject to the testator’s power at his death, and therefore is neither his heres suus et necessarius nor his heres necessarius. Such an extraneus heres is an emanci­pated son, or a slave appointed as an heir and freed in the testament who, however, had been manumitted by his master (the testator) when he was still alive, but after the testament was made. See necessarius heres. An extraneus heres was given an oppor­tunity to deliberate (deliberare, ius deliberandi) whether to accept the inheritance or not. Therefore an explicit declaration of acceptance was required from him.—See voluntarius heres, pro herede gerere, tempus ad deliberandum.

Solazzi, St Scorza, 1940.

Extraordinarii. Selected army troops destined for particularly difficult tasks.

Liebenam, RE 6; Cagnat, DS 2.

Extraordinarius. What is extra ordinem, beyond the normal order of things. See extra ordinem. -The term is mostly applied to procedural institutions, both civil and criminal (actio, iudicium, poena, cognitio, persecutio, crimen, remedium).—D. 50.13; C. 47.11. —See cognitio extra ordinem, crimina publica, ius extraordinarium.

Extrarius. See extraneus.

Exui. See EXSUL.

Exurere, exurendum damnare. See crematio.