Roman Law Terms with Letters F

Fabri. Workers, craftsmen, artisans, e.g., fabri tignarii (carpenters), ferrarii (forgers), argentarii (silver­smiths), etc. Fabri navales = shipbuilders. Rich material on the various organizations (collegia) of craftsmen is found in inscriptions.

[TRANS. AMER. PHIL. SOC. narii (voluntary firemen) appear united with the fabri in one association (collegium fabrorum et cen­tonariorum). In the earliest organization of the Roman army, attributed to the king Servius Tullius, there were two centuriae of fabri for all kinds of craftman’s work.—See praefectus fabrum.

Kornemann, RE 6; Jullian, DS 2; Liebenam, DE 3; H. C. Maue, Praefectus fabrum, 1887, 50; idem, Die Vereine der fabri centonarii, Frankfurt, 1886; G. Kühn, De opificum R. condicione, Diss. Halle, 1910, 21; O. Hirschfeld, Kleine Schriften, 1913, 101; Schnorr v. Carolsfeld, Gesch. der juristischen Person 1 (1933) 281; Riccobono, FIR 2 (1941) no. 87.

Fabricenses. Workers in state factories (fabricae) for arms and military equipment. They had a privileged position in the later Empire, but were subject to very rigid discipline. Desertion from their posts was severely punished.—C. 11.10.

Seeck, RE 6.

Fabriles operae. See operae.

Facere. “The term includes all kinds of doing, as to give, to fulfill an obligation, to pay money, to judge” (D. 50.16.218). With reference to contractual obli­gations facere = to do (or not to do) something.— obligatio, contractus innominati.

Scherillo, BIDR 36 (1928) 29.

Facere aliquid alicuius. To make a thing enter into the ownership or possession of another.

Facere posse. To be able to pay one’s debts, to be solvent. In certain civil actions the limit to which a defendant can be adjudicated is set by in id quod facere potest (= to as much as he can pay) ; see BENEFICIUM COMPETENTIAE.

Guarino, SDHI 7 (1941) 5; G.

Facinus. A general term for a criminal offense. Del Prete, AnMac 11 (1937) 106.

Facti est. See res facti.

Factio. A combination of persons, a plot for criminal purposes, in particular for organizing a sedition.

Factio testamenti. See testamenti factio.

Factiones. Political unions for the purpose of the realization of the political ambitions of their members with the help of friends, clients and sympathizers.

Strasburger, RE 18, 788; Maricq, Bull. Cl. Lettres, Acad. Royale de Belgique, 36 (1950) 396.

Factum. A thing done by a human being, also an event, a happening independent of human influence. Factum is often opposed to ius. Res facti—res iuris = a matter of fact—a matter of law; facti esse—iuris esse, questio facti—quaestio iuris. Condicio facti— condicio iuris = a condition depending upon a fact— a condition imposed by the law. For the distinction actiones in factum—actiones in ius conceptae, see formulae in ius conceptae; for the distinction error jacti—error iuris (in iure), see error facti, IGNORANTIA IURIS.

Vassalli, AnPer 28 (1914) ; Georgescu, Scr Ferrini 3 (Univ. Sacro Cuore, Milan, 1948) 144.

Factum alienum. Something done by another person. See nemo factum alienum, etc. Ant. factum suum = something done by a person for which that same person is responsible. “Everybody bears the conse­quences of his doings, not his adversary” (D. 50.17.155 pr.).

Facultas. The legal ability to conclude an agreement or to accomplish a valid act (a testament).—See LIBERA MORTIS FACULTAS.

Facultates (facultates patrimonii). Property, wealth. The possession of a fixed fortune was a requirement for certain official positions. Thus, for instance, a decurio ( = councilor) of a municipal council had to have one hundred thousand sesterces. The patri­monial census of a knight (see equites) was 400,000 sesterces. Obligations of maintaining other persons (see alimenta) are estimated according to the means (pro modo facultatum) of the person obligated.—See BENEFICIUM COMPETENTIAE.

Faenus. See fenus.

Falcidia. Refers either to the statute lex Falcidia or to the so-called quarto, Falcidia. See lex falcidia. Vassalli, BI DR 26 (1913).

Falsa causa. An untrue, erroneous ground assigned by a testator or donor as the motive for a legacy or gift. Generally, it had no influence on the validity of the disposition.—C. 6.44.

Falsa demonstratio. See demonstrate falsa.

Falsa moneta. Counterfeit money, coins (nummi) made of tin or lead. Counterfeiters were punished under the Lex Cornelia de falsis.—C. 9.24.—See FALSUM.

Taubenschlag, RE 16, 1455 (s.v. Munsverbrecheri).

Falsarius. One who commits a crimen falsi, such as a forger of documents, a counterfeiter of coins, meas­ures, weights, and the like.—See falsum.

Falsum. A general definition says: “falsum is that which in reality does not exist, but is asserted as true” (Paul. Coll. 8, 6, 1). In the field of penal law falsum covers any kind of forgery, falsification or counterfeiting. The fundamental statute on falsum was the Lex Cornelia de falsis by Sulla (81 b.c.), also called the Lex Cornelia testamentaria or num­maria since it dealt with the forging of testaments and counterfeiting of coins as well. The statute was still in force in Justinian’s Digest and was applied to crimes which originally were not mentioned in it and only through senotusconsulta, the interpretation by the jurists and the practice of the criminal courts became punishable under the statute. With regard to last wills the destruction or concealing thereof was a crimen falsi as well as the substitution of a forged testament or a fraudulent manipulation of the seals. See SENATUSCONSULTUM GEMINIANUM, LIBONIANUM, licinianum. These decrees of the senate extended the penalties of the Lex Cornelia to forgery of docu­ments other than wills, false testimony, producing forged imperial enactments (epistulae, rescripta). With regard to coins the Lex Cornelia set penalties for various kinds of forgery and for knowingly bring­ing false money (see adulterinus, falsa moneta) into circulation.

Hitzig, RE 6; Humbert, DS 2, 967; H. Erman, La falsi­fication des actes dans I’antiquite, Mel Nicole, 1905, 111; L. De Sarlo, Repressione penale del falso documentale, Riv. di dir. e proc, penale 14 (1937) 317; Levy, BIDR 45 (1938) 60; Archi, Studi nelle science giur\ e sociali 26 (1941) 35; idem, St Pavia 26 (1941) 9.—On Lex Cornelia: Rotondi, Leges publicae populi Romani, 1912, 356; Cuq, DS 3, 1138.

Falsum testamentum. A forged testament. “It is no testament” (D. 50.16.221).

Falsum testimonium. See testimonium falsum. Falsus accusator. See calumnia.

Falsus procurator. One who falsely assumes the role of another’s representative (mandatary). He is con­sidered a thief when he accepts money on behalf of his non-existing principal.

H. Fitting, Sciens debitum accipere (Lausanne, 1926) 19.

Falsus tutor. “A guardian who is not a guardian” (D. 50.16.221), a person who acts as a guardian (tutor or curator) without having been appointed as such.—See ACTIO PROTUTELAE, PRO TUTORE GERERE. —D. 27.6.

E. Levy, Privatstrafe und Schadensersats, 1915, 84; idem, Konkurrenz dcr Actionen 2, 1 (1922) 243; Solazzi, AG 91 (1924) 133.

Familia. The term “has received different meanings, it is referred both to things and persons” (D. 50.16.195.1). Already in the Twelve Tables it ap­pears in both senses: on the one hand embracing all persons who are under the same paternal power (the wife in manu included) and in a broader sense, all persons connected by blood through descent from the same ancestor, on the other hand referring to the whole property of a person, including all corporeal things and slaves. In a narrower meaning familia denotes all the servants (in seruitio) in a household, in particular slaves and free men serving in good faith as slaves.—See actio familiae erciscundae, capi­tis DEMINUTIO, EX1RE, F1LIUS FAM1LIAS, FIL1A FAMI-

LIAS, MANCIPATIO FAMILIAE, PATER FAMILIAS, and the following items.

Leonhard, RE 6; Sachers, ibid. 184, 2124; Baudry, DS 2; De Ruggiero, DE 3; De Martino, NDI 5; C. W. L. Launs- pach, State and Family in Early Rome, London, 1908; P. Moriaud, De la simple famille parternelle, Geneve, 1910; A. Baudrillart, La famille dans I'antiquite, 1929; Wlassak, Studien zum altrom. Erb- und Vermiichtnisrecht, Sb Wien 215 (1933) 35; Cornil, RHD 16 (1937) 555; C. W. West- rup, Introduction to Early R. Law. The Patriarchal Joint Family, 1-3 (1934-1944) ; idem, St Albertoni 1 (1935) 143; Henrion, Des origines du mot familia, AntCl 10 (1941) 36; 11 (1942) 253; Burck, Die altrom. Familie, in Das neue Bild der Antike 2 (1942) 156; Paribeni, Familia romana, 3rd ed. 1947; C. Cosentini, St sui liberti 1 (1948) 27; B. Albanese, Successione ereditaria (= AnPal 20, 1949) 143; Volterra, Sui 'mores' della 'familia' rom., RendLinc, Ser. VIII, vol. 4 (1949-50) 516; M. Kaser, La f. romana, AnTr 20 (1950).

Familia castrensis. See castrensiani.

Familia pecuniaque. The whole property of a person. Pierron, Revue generale de droit 19 (1895) 385; Pfaff, Fschr Hanausck, 1925, 94; M. F. Lepri, Saggi sulla termi- nologia... del patrimonio, 1 (1942); M. Kaser, Das altrom. lus, 1949, 159; B.

Familia rustica. Slaves working on a rural estate; ant. familia urbana = slaves attached to the household of their master in the city.—See vilicus.

Familia urbana. See the foregoing item.

Familiae emptor. A trustee to whom a testator trans­ferred his property through a testamentum per aes et libram and gave oral instructions (nuncupare) as to the distribution of it after his death.—See man­cipatio FAMILIAE, NUNCUPATIO.

Familiares. The servants in a household.

Familiaris. Concerned with, belonging to the family. See RES FAMILIARIS, SEPULCRUM FAMILIARE, SACRA FAMILIARIA.

Famosus..An action (actio, iudicium, causa, delic­tum) involving infamy for the defendants.—See ACTIONES FAMOSAE, CARMEN FAMOSUM, LIBELLI FA­MOSI, FEMINA FAMOSA.

Far, farreum, farreus panis. See confarreatio.

Fas. (As opposed to ius.) The moral law of divine origin, whereas ius is law created by men. The two terms appear together in the phrase ius fasque. Fas is what gods permit, nefas what they forbid. In its widest sense fas is what is permitted by law or custom.

Berger, RE 10, 1213; Kiibler, DE 3; Ferrini, NDI 5; Beduschi, RISG 10 (1935) 209; F. Di Martino, Giurisdi- zione, 1937, 218; Orestano, BIDR 46 (1939) 194 (Bibl.), 276; Goidanich, Atti Ac cad. d'I talia, Ser. 8, v. 3 (1943) 499; M. Kaser, Das altrom. Ius, 1949, 29; Latte, ZSS 67 (1950) 56.

Fasces. A bundle of rods with an axe in the middle, carried by lictors before consuls and higher magis­trates when they appeared in public or on other spe­cific occasion. The axe symbolized the power to impose the death penalty (ius gladii) and was put

[TRANS. AMER. PHIL. SOC. into the fasces only when the magistrate exercised his military power (imperium militiae, see domi).

Samter, RE 6; De Ruggiero, DE 3; Treves, OCD; De Sanctis, Riv. di filologia 57 (1929) 1; Vogel, ZSS 67 (1950) 63.

Fasces. A list of tax-payers, in the later Empire. Fasti. See DIES FASTI.

Fasti consulares (consulum). Lists of consuls in chronological order according to the years in which they were in office. There were also fasti of other higher magistrates, as dictators, censors (fasti magis­tratuum) and of high priests (fasti sacerdotales). Fasti is also used as the name of the official calendar of dies fasti and nefasti.

Edition: Degrassi, Inscriptiones Italiae 13, 1, 2 (1947); A. H. McDonald, OCD; Schön, RE 6; Bouche-Leclercq, DS 2; Liebenam, F. c. von 30 v. Chr. bis 565 n. Chr., 1910; G. Costa, I f. consolari, 1910; E. Pais, Ricerche sulla storia 2 (1916) ; Cornelius, Untersuchungen zur früheren röm. Geschichte, 1940, 50; K. Hanell, Das altröm. eponyme Amt, Lund, 1946; A. Degrassi, I fasti consolari dell'Impero romano dal 30 a.C. al 613 d.C., Rome, 1952.

Fatalis. See dies fatalis, damnum fatale. Fateri. Syn. confiteri. See confessio.

Favor. (From favere.) A tendency in legislation, jurisprudence or jurisdiction in favor of certain legal institutions (testament, dowry, liberty). The inten­sity of such tendencies varied through the centuries and assumed particular strength in Justinian’s law, but their origin goes back to classical ideas. The modern Romanistic literature inclines to ascribe these tendencies to Justinian’s reforms, a doctrine which hardly can be true since in various instances the jurists reveal in their writings a favorable attitude in specific decisions even though they do not use the word favor. See the following items.

Guarneri-Citati, Indice² (1927) 39 (Bibl.).

Favor debitoris. The tendency to interpret contrac­tual clauses in cases involving debt in favor of the debtor. With regard to stipulatio there was the following rule: “if it is doubtful what was agreed upon, the words are to be interpreted against the creditor” (D. 35.4.26). A larger application of the rule in civil trials is expressed in the saying: “de­fendants should be treated more favorably than plain­tiffs” (D. 50.17.125). The legislation of the Chris­tian emperors openly acted in favor of the debtors.

Favor dotis. The law of the dowry is governed by the tendency to favor the constitution of a dowry and its preservation during marriage so that, in the event of the restitution the dowry would remain undimin­ished, as far as possible. “It is in the public interest that dowries be preserved for the women” (D. 23.3.2). —See dos.

Favor libertatis. “Whenever an interpretation re­garding liberty is doubtful, the answer should be in favor of liberty” (D. 50.17.20). The simplification of the forms of manumission is an expression of this favor libertatis as well as the admission of cases in

which a slave becomes free without manumission. Particularly obvious is the favor libertatis in decisions concerning testamentary manumissions which are de­clared valid where according to a strict interpreta­tion of the law they would be void. Justinian called himself “a favorer of liberty” (fautor libertatis, C. 7.7.22).—D. 40.8.—See libertas, manumissio.

I. Pfaff, Zur Lehre vom f. I., 1894; Schulz, ZSS 48 (1928) 197; Rotondi, Scr giuridici 3 (1930) 476; Albertario, Studi 1 (1933) 63; M. Nicolau, Causa liberalis, 1933, 174; 219; Orias, ACII 1 (1935) 153; Imbert, RHD 27 (1949) 274.

Favor testamenti. A tendency to declare a testa­ment valid despite some doubts in this respect, in order to realize the will of the testator. Interpreta­tion of ambiguous testamentary dispositions was gov­erned by the desire to fulfill the wishes of the testa­tor; hence, the frequent statements in juristic writ­ings urging that his will (voluntas) be interpreted favorably (benigne, plenius).—See benigna inter- PRETATIO, BENIGNE.

E. Costa, Papiniano 3 (1893) ; A. Suman, Favor t., 1916; B. Biondi, Successions testamentaria, 1943, 7.

Felicissimus. An honorific title given to emperors in inscriptions.

De Ruggiero, DE 3.

Femina. A woman. “Women are barred from all civil and public office and therefore they cannot be judges, hold a magistracy, bring a suit, intervene for another, or be a representative in a trial” (D. 50.17.2 pr.). In many legal matters the position of women was inferior to that of men. Several restrictions on their capacity were imposed in the law of successions and obligations. As long as the guardianship, over women was in force, they were not able to conclude legal transactions or manage their affairs without the consent of the guardian. A woman could not be a guardian; an exception was later introduced in behalf of a mother if there was no tutor appointed in a testament or by law. She had, however, to assume the obligation not to marry again. Postclassical de­velopment and Justinian law brought some reforms towards the equalization of the sexes under the law but some substantial differences remained even in Justinian’s codification.—See tutela mulierum, lex VOCONIA, SENATUSCONSULTUM VELLEIANUM, MULI- ERES.

Couch, Woman in Early R. Law, Harvard LR 8 (1894/5) 39; Wenger, ZSS 26 (1905) 449; Frezza, Aeg 11 (1931) 363»; idem, StCagl 22 (1933) 126; Brassloff, ZSS 41 (1921) ; idem, St zur rom. Rcchtsgesch. I. Intestaterbrecht dcr Frauen, 1925; Volterra, BIDR 48 (1941) 74.

Femina famosa (probrosa). See meretrix.

Nardi, StSas 16 (1938).

Femina stolata. See matron a.

Fenerator. Money-lender, usurer.—See fen us, lex MARCIA.

Fenus (faenus). Interest paid by the debtor to the lender. Syn. usurae. From the time of the Twelve

Tables the legislation often intervened with the limi­tation of the rate of interest. See fenus unciarium, FENUS SEMIUNCIARIUM, LEX GENUCIA, LEX MARCIA, lex Cornelia POMPEIA. Under the Empire the rate of twelve per cent was termed fenus licitum, usurae legitimae. A creditor who took higher interest could be sued for four times the amount exceeding the legal rate. Justinian considerably reduced the highest ad­missible rate, set different rates according to the nature of the loan and abolished the fourfold penalty. See USURAE, PECUNIA FENEBRIS, EXERCERE PECU- niam, and the following items.

Klingmüller, RE 6; Baudry, DS 2 ; G. Rotondi, Leges pub- licae populi rom., 1912 (Encicl. giuridica ital.) ; Kling­müller, ZSS 23 (1902) 23.

Fenus licitum. See the foregoing item.

Fenus nauticum. A loan given in connection with the transportation of merchandise by vessel. The loan had to be repaid only when the ship arrived safely in port with the cargo. Because of the risk which the loan-giver assumed (shipwreck, piracy), the rate of interest was unlimited until Justinian fixed it at 12 per cent. Syn. usurae maritimae. The money loaned was called pecunia traiecticia as “money con­veyed overseas,” since either the money itself or the cargo bought by it was to be transported by boat.— D. 22.2; C. 4.33.

Klingmüller, RE 6, 2200; Cuq, DS 2; Heichelheim, OCD (s.v. bottomry loan) ; F. Pringsheim, Kauf mit fremdem Geld, 1916, 143; Nicolau, Mel Jorga, 1933, 925; De Mar­tino, RDNav 1 (1935) 217; Biscardi, St Albertoni 2 (1937) 345; idem, StSen 60 (1948) 567; De Martino, RDNav 15 (1949) 19.

Fenus semiunciarium. A rate of interest amounting to one-half of the fenus unciarium. It was intro­duced by a plebiscite of 347 b.c.—See the following item.

Fenus unciarium. The rate of interest established by the Twelve Tables. It was one uncia (one-twelfth of the sum loaned) per annum (8% per cent), or when the year was reckoned as ten months, 10 per cent. Some scholars assume that such interest was paid monthly making 100 per cent per annum, which does not seem likely, although the other calculation ap­pears too low for the primitive economy of the fifth century B.C.

G. Billeter, Geschichte der Zinsfusses, 1898, 157; Appleton, RHD 43 (1919) 467; Scialoja, BIDR 33 (1924) 240 (= St giur. 2, 287); Kühler, Geschichte, 1925, 47; Nicolau, Mel lorga, 1933, 925; L. Clerici, Economia e finanza dei Romani, 1 (1943) 352; Arangio-Ruiz, Istituzion? (1947) 304; E. Weiss, Institutionen² (1949) 304; Kunkel, Röm. Recht³ (1949) 182.

Fera (bestia). A wild animal. It was considered a res nullius. When caught (not merely wounded) it became the property of the captor and remained such as long as it was in his custody. After regain­ing its natural liberty it could be the object of an­other occupatio. A wild animal belongs to res nec niancipi.—See ANIMALIA, ANIMUS REVERTENDI, EDIC­TUM DE FERIS, 0CCUPATI0, VENATIO.

Kaser, RE 7A, 684; Landucci, NDI 2, 588; idem, AG 29 (1882).

Ferendus non est. Said when the reasons (excuses) alleged in court by a person to justify his acting, are not to be taken into consideration.

Feriae (dies festi). Days on which agricultural, in­dustrial and other kinds of labor, even that of slaves to a certain extent, were suspended, as well as all judicial activity (vacatio a forensibus negotiis). Such days were dedicated primarily to religious ceremonies and popular festivals. Any offence against such holi­days was punished. There were also extraordinary feriae pitblicae, as on the occasion of a victory or an accession to the throne. Feriae privatae (anniver­saries, commemorative days in associations, see col­legia) considerably increased the number of holidays on which any labor ceased. At the beginning of the Principate the number of public holidays amounted to forty-eight. The whole matter was later regulated by a law of a.d. 389, which also took into considera­tion Christian holidays.—D. 2.12; C. 3.12.

Wissowa, RE 6; Jullian, DS 2; De Ruggiero, DE 2, 1782; Weinberger, DE 3; De Robertis, Rapporti di lavoro, 1946, 278; J. Paoli, RHD 30 (1952) 304.

Feriae Latinae. See praefectus urbi.

Samter, RE 6; Jullian, DS 2.

Feriaticus (feriatus) dies. Holidays on which agri­cultural and industrial labor ceased. Work connected with the military service had to be done. Some acts of voluntary jurisdiction as, e.g., the appointment of a tutor or curator, were permitted.—See feriae.

Ferrariae. Iron mines.—See procurator ferrari­arum.

De Ruggiero, DE 3.

Ferre. See ferendus non est.

Ferre expensum. See expensilatio.

Ferre iudicem. To propose to one’s adversary in a trial a certain person from the panel of jurors (album iudicum) to be judge in the controversy. Sumere iudicem = to accept the proposal; eierare = to reject, to refuse (under oath).

Ferre legem. To propose (bring in) a law, to enact, to make a law.

Ferre opem. See ope consilio.

Ferre sententiam. To pass a judgment.

Ferre suffragium. To vote.

Ferre testimonium. To bear testimony. Ferri iubere. See duci iubere.

Ferruminatio. The junction of two objects of the same metal, for instance, a bronze arm with a bronze statue. When the parts belonged to different own­ers, the owner of the principal part became owner of the whole. This was not the case when the soldering metal was different, as, for instance, when in the example above plumb was used (adplumbatio). If separation is possible without destruction of the

[TRANS. AMER. PHIL. SOC. whole, the owner of the part which was illegally joined could claim its restitution after having en­forced its separation through actio ad exhibendum, See CORPUS EX COHAERENTIBUS, PLUMBATURA, ACTIO AD EXHIBENDUM.

Leonhard, RE 1 (s.v. adplumbatio) ; Pampaloni, Scritti 1 (1941, written 1879) 9; Bozzi, NDI 5.

FeSti dies. See FERIAE.

Festuca. A stalk of grass, later a rod, used in earlier law when a thing was claimed by rei vindicatio or in specific form of manumission (manumissio vin­dicta).

Nisbet, JRSt 8 (1918) ; Meylan, La baguette, Mel F. Guisan (Lausanne, 1950).

Fetiales. A group of twenty -priests who from the earliest times were charged not only with religious functions, but also with public service, in particular in international relations with other states. Their duty was to observe whether or not the terms of international treaties were being fulfilled. They were involved in the concluding of treaties, in affairs of extradition, and were representatives of Rome in serving official declaration of war. In their mis­sions abroad they were headed by one of them whose official title as the speaker of the delegation was pater patratus.

Samter, RE 6; A. Weiss, DS 2; De Ruggiero, DE 3; Ferrini, NDI 5, 928; Rose, OCD; Frank, CIPhilol 7 (1912) ; Volterra, Scritti Carnelutti 4 (1950) 248.

Ficta possessio (fictus possessor). See possessor FICTUS.

Fictio. (From fingere.) The assumption of the ex­istence of a legal or factual element, although such an element does not exist. The purpose of a fiction is to cause certain legal consequences which other­wise would not occur. For fictio in the procedural formula, see actiones ficticiae.

R. Dekkers, La fiction juridique, 1935.

Fictio legis Corneliae. See lex Cornelia de captivis. Fideicommissaria hereditas. See fideicommissum HEREDITATIS. InSt. 2.23.

Fideicommissaria hereditatis petitio. See heredi­tatis petitio fideicommissaria.

Fideicommissaria libertas. Liberty granted through a fideicommissum.—D. 40.5; C. 7.4.—See manumis­sio FIDUCIARIA, SENATUSCONSULTUM DASUMIANUM, RUBRIANUM, VITRASIANUM.

Montel, St Bonfante 3 (1930) 633.

Fideicommissarius. (Noun.) Indicates sometimes a person awarded with a fideicommissum, sometimes an heir charged with one.

Fideicommissum. (From fidei alicuius committere,) Originally a request addressed by the testator to his heir (“te rogo,” “peto a te”) to carry out a certain performance (payment of a sum of money, transfer of property) to the benefit of a third person. It created only a moral (not legal) duty. Augustus rendered the fideicommissum obligatory to the heir

and made it enforceable by a new procedure (cog­nitio extra ordinem) before a special magistrate created for the purpose, the praetor fideicommissarius. Fideicommissum was formless and this advantage over legacies in the form of legata furthered its devel­opment. Anybody who received a gift mortis causa (not only an heir) might be charged with a fidei­commissum. Not even a testament, without which a legacy could not be bequeathed, was necessary since a fideicommissum could be imposed on an heir at intes­tacy. The differences between fideicommissa and legata gradually disappeared and under Justinian both institutions were considered equal (per omnia exaequata sunt, D. 30.1).—D. 30; 31; 32; C. 3.17; 6.42-46. See FIDEICOM MITTERE, SENATUSCONSUL­

TUM PEGASIANUM, CODICILLI, ORATIO HADRIANI, ORA­TIO MARCI.

Leonhard, RE 6; Humbert, DS 2; Trifone, NDI 6 (1002) ; Kiibler, DE 3; Milone, Il fedecommesso romano, 1896; Declareuil, Mèi GĂ©rardin (1907) 135; Riccobono, Mèi Cornil 2 (1926) 310; R. Trifone, Il fedecommesso 1914; Lemercier, RHD 14 (1935) 443, 623; B. Biondi, Succes­sione testamentaria, 1943, 289; F. Schwarz, ZSS 68 (1951) 266.

Fideicommissum a debitore relictum. A fideicom­missum by which the testator ordered his debtor to pay the debt not to the heir but to a third person.

G. Wesenberg, Vertrage zu Gunsten Dritter, 1949, 56.

Fideicommissum hereditatis. A fideicommissum con­cerning the whole estate or a part of it. A fidei- commissary honored by such a fideicommissum became either successor to the entire inheritance or co­successor with the heir who had been charged with the fideicommissum (the fiduciary heir). The latter remained the heir (heres) but he had to transfer the pertinent portion to the fideicommissary ; for the transfer of the testator’s claims and debts reciprocal stipulations were made (stipulationes emptae vendi­tae hereditatis) by which the fiduciary heir obligated himself to restitute the fideicommissary the payments received from the debtors of the deceased, whereas the fideicommissary assumed the liability to indemnify proportionally the heir for payments made to the creditors of the estate. For later reforms which di­rectly gave the fideicommissary the legal situation of an heir and made the stipulations superfluous, see SENATUSCONSULTUM TREBELLIANUM and PEGASIA­NUM. Justinian simplified the whole matter and gave the fideicommissary the position of a universal successor (heredis loco).—Inst. 2.23.—See heredi­tatis PETITIO FIDEICOMMISSARIA, COMMUNICARE LU­CRUM, EXCEPTIO RESTITUTAE HEREDITATIS.

Lemercier, RHD 14 (1935) 462, 623; La Pira, StSen 47 (1933) 243.

Fideicommissum liberatatis. See manumissio fidei­commissaria.

Fideicommittere. See fideicommissum. Fideicom­mittere was the term used by the testator when he addressed his request to his heir: “fidei tuae com- mitto” ( = I leave it to your faith, honesty). Other words could, however, be used as well (peto, rogo, volo, etc.).

Fideiussio, fideiussor. See adpromissio.

Fideiussor fideiussoris. A surety who assumes guar­anty for another surety.

Fideiussor iudicio sistendi causa. See vindex, vadi­monium, SISTERE ALIQUEM.

Fideiussor tutoris (curatoris). A surety for a guard­ian (tutor or curator).—D. 27.7; C. 5.57.

Fideipromissio, fideipromissor. See adpromissio.

Fidem alicuius sequi. (Syn. fidem habere alicui.) To put faith in one’s honesty, to trust.

Fidem praestare (conventioni, pacto). To perform the obligations assumed in an agreement. Syn. fidem servare; ant. fidem fallere, fidem rumpere.

Fides. Honesty, uprightness, trustworthiness. In legal relations fides denotes honest keeping of one’s promises and performing the duties assumed by agreement. On the other side fides means the con­fidence, trust, faith one has in another’s behavior, particularly with regard to the fulfillment of his lia­bilities. See fidem alicuius sequi. For fides as the element of reciprocal confidence in contractual relations, see ius gentium ; for fides in the promis­sory formulae by which one assumes guaranty for another, see adpromissio.—See bona fides, con­tractus BONAE FIDEI, IUDICIA BONAE FIDEI, EMPTOR BONAE FIDEI, LIBER HOMO, etc., USUCAPIO, POSSESSOR BONAE FIDEI, MALA FIDES.

De Ruggiero, DE 3, 77; Heinze, Hermes 64 (1929) 140; Fränkel, Rheinisches Museum für Philol. 71 (1916) 187; W. Flume, Studien zur Akzessorietät, 1932, 64; Beseler, Fides, ACDR Roma 1 (1934) 135; Hermesdorf, ACH 1 (1935) 161; F. Schulz, Principles of R. Law (1936) 223; Kunkel, Fschr Koschaker 2 (1939) 1; Dulckeit, ibid. 316; Condanari-Michler, Scr Ferrini 3 (Univ. Sacro Cuore, Milan, 1948) 90; Kaser, Das altrömische Ius, 1949 (pas­sim) ; Frezza, Nuova Riv. dir. com. 2 (1949) 31.

Fides bona. See bona fides.

Fides instrumentorum. The credibility, the conclusive force of documents as means of evidence. Similar applications of the term: fides scripturae, fides tabu­larum; with regard to witnesses and their testi­mony: fides testimonii, testium.—D. 22.4; C. 4.21.

Archi, Scr Ferrini 1 (Univ. Sacro Cuore, Milan, 1947) 15.

Fiducia. An agreement (pactum fiduciae) in addition to a transfer of property through mancipatio (or in iure cessio) by which the transferee assumes certain duties as to the property transferred or the later retransfer thereof to the transferor. The agreement is based on the transferor’s trust (fides, fiducia) to the honesty of his partner. The transferor had an action (actio fiduciae) against the trustee if, con­trary to the fiduciary agreement, the latter refused to retransfer the property. On the other hand, the trustee had an actio fiduciae contraria for the recov­ery of expenses and damages caused by the thing mancipated. Fiducia means sometimes the thing given in fiduciam or fiduciae causa. For the manifold applications of fiducia, see coemptio fiduciae causa, and the following items.

Manigk, RE 6; Baudry, DS 2; Carrelli, NDI 5; Kiibler, DE 3; Rotondi, Scr giur. 2 (1922) 137; Grosso, AnCam 3 (1929) 81; C. Longo, CentCodPav 1933; De Martino, Giurisdisione, 1937, 90; C. Longo, Fiducia (Corso) 1933; W. Erbe, Die f. im rom. R., 1940; Collinet, SV Besta 1 (1937) 91; Kaser, ZSS 61 (1941) 153; Kreller, ZSS 62 (1942) 143.

Fiducia cum amico. A fiduciary agreement concluded with a friend on the occasion of a transfer of owner­ship under specific circumstances for the purpose “that the thing be safer with him” (Gaius, Inst. 2.60). Such a transaction could serve for a deposit or a gratuitous loan of a thing (comwiodatum), the fidu­ciary assuming the duty to retransfer it to the de­positor or commodator.

Fiducia cum creditore. A kind of pledge. The debtor transferred the ownership of a thing given as a real security to the creditor through mancipatio or in iure cessio. The latter, assumed the obligation to retrans­fer the thing to the debtor after the debt was paid. For the pertinent actions, see fiducia. An example of a fiducia cum creditore is epigraphically preserved in the so-called formula baetica. This kind of pledge did no longer exist in Justinian’s law. The term was canceled by the compilers of the Digest everywhere in classical texts and substituted by an­other term, primarily by pignus.—See fiducia (Bibl.).

Hazeltine, in R. W. Turner, The Equity of Redemption, Cambridge, 1931, p. xiii; C. Longo, CentCodPav 1934, 795; Rabel, Sem 1 (1943) 39; A. Burdese, St Solas A, 1948, 324; idem, Lex commissoria e ius vendendi nella fiducia, 1949.

Fiducia manumissionis causa. The conveyance of the ownership over a slave to a fiduciary under the agreement that the slave be manumitted. The pur­pose of such a transaction was to make the fiduciary the patron of the slave manumitted or to elude the legislation which restricted manumissions, see lex FUFIA CANINIA, LEX AELIA SENTIA, LEX IUNIA NOR- bana. Such transactions in fraudem legis ( = to de­fraud the law) were void.

Grosso, RISG 4 (1929) 251.

Fiducia remancipationis causa. An agreement made with a third person by a father who wished to eman­cipate his son from paternal power, by which agree­ment the fiduciary assumed the duty to remancipate the son to the father until, after the third remancipa­tion, the son was free from the paternal power.— See EMANCIPATIO.

Fiduciae causa. Refers to transactions (mancipatio or in iure cessio) creating a fiduciary relation be­tween the contracting parties and imposing on the trustee the duty of performing under certain condi­tions a legal act entrusted to him.

Betti, BIDR 42 (1934) 299; Brasiello, RIDA 4 (1950) 201.

Fiduciaria res. A thing (a slave) transferred fiduciae causa. See fiducia and the foregoing item.

Fiduciarius. (Adj.) See coemptio, tutela fiducia­ria.

Filia familias. A daughter under the paternal power of her father or a paternal ascendant. She is alieni i uris and becomes sui iuris through emancipatio or marriage combined with in manum conventio by which she enters into the family of her husband where she is filiae familias loco under the paternal power of the head of her husband’s family. In an­cient law it was the father who promised his daughter into marriage through sponsio and who had the right to dissolve her marriage if she remained in his pa­ternal power. Later only his consent was necessary for the daughter’s betrothal and marriage but a tacit one sufficed. His right to dissent was limited in Justinian law, and so was his right to influence the daughter’s divorce.—See patria potestas.

Moriaud, Mel Girard 2 (1912) 291; Solazzi, BIDR 34 (1925) ; idem, St Albertoni 1 (1935) 41; G. Longo, BIDR 40 (1932) 201; Brassloff, St Riccobono 1 (1936) 332; De Martino, Giurisdisione (1937) 328; Caes, SDHI 5 (1939) 122; VQlterra, RIDA 1 (1948) 224.

Filli. Sons, children. In a broader sense the term also embraces descendants (nepotes, pronepotes).

Lanfranchi, StCagl 30 (1946) 23.

Filius adoptivus. An adopted spn.—See adoptio. De Ruggiero, DE 3, 89.

Filius familias. A son under the paternal power (in potestate) of his father (pater familias) or paternal ascendant. Descendants (grandsons, great-grand­sons have the same legal status as their father (or grandfather, respectively) who is under the patria potestas of the head of the family. A filius familias has no property of his own; all his acquisitions be­come property of his father. The introduction of a separate property of the son, peculium, brought a change in this regard. See peculium. A major filius familias has full capacity to conclude legal trans­actions but he does not obligate his father unless he acts under his order or under specific circumstances; see PECULIUM, lUSSUM, ACTIO TRIBUTORIA. A filius familias could not marry without the explicit consent of his father. In Justinian’s law the son could com­plain to the competent authority about an unjustified refusal. A filius familias, as a person alieni iuris, became sui iuris at the death of his father if he was under immediate paternal power of the deceased. With the consent of the father the son was freed from paternal power through emancipatio.—C. 2.22; 4.13; 10.62.—See patria potestas, pater familias, heres suus et necessarius, bonorum possessio UNDE LIBERI, IUS VITAE NECISQUE, INTERDICTUM DE LIBERIS EXHIBENDIS, TESTAMENTI FACTIO, IUDICIUM DOMESTICUM, VINDICATIO FILII, NOXA, EX RE, EX­HEREDARE, PECULIUM, OBLIGATIO NATURALIS.

Solazzi, BIDR 11 (1899) 113; idem, RISG 54 (1914) 17, 273 ; P. Moriaud, La simple famille paternelle, 1912 ; De- clareuil, Mèi Girard 1 (1912) 315; Philippin, Mèi Cornil 2 (1926) 224; Kaser, ZSS 58, 59 (1938, 1939); idem, SDHI 16 (1950) 59; Volterra, RIDA 1 (1948) 213.

Filius iustus. A son born in a legally valid marriage (iustae nuptiae). In Justinian’s language the term filius legitimus prevails.

Filius legitimus. See the foregoing item.

Filius naturalis. As an ant. to filius adoptivus, filius naturalis indicates a child born in a marriage. On the other hand, filius naturalis is a child born in a marriage-like union, contubernium, and from the time of Constantine a child issued in a concubinage. This latter significance predominates in Justinian’s lan­guage where it comprises any illegitimate child. Chil­dren born in a concubinage may become legitimi in later law by a subsequent marriage of the parents (legitimatio per subsequens matrimonium, a term coined in literature). The emperor could grant an illegitimate child the position of a filius legitimus by a special privilege (per re scrip turn principisi.—C. 5.27. See CONTUBERNIUM CONCUBINATUS, LEGITI­

MATE.

Steinwenter, RE 16 (s.v. naturales liberi) ; De Ruggiero, DE 3, 85; Weiss, ZSS 49 (1929) 260; C. A. Maschi, Concezione naturalistica, 1937, 51; Wolff, Sem 3 (1945) 24; H. Janeau, De I’adrogation des liberi naturales, 1947, 15; Castello, RIDA 4 (=Mèl De Visscher, 1948) 267; Lanf ranchi, StCagl 30 (1946) 24.

Fines (finis). Boundaries of a landed (rural) prop­erty. Syn. confinium.—D. 10.1 ; C. 3.39.—See actio FINIUM REGUNDORUM, AGRIMENSORES, CONTROVERSIA DE FINE.

Leonhard, RE 6; Anon., NDI 6; Schulten, DE 3.

Finge (fingamus). Suppose (let us suppose) that. The words are frequently suspected to be a compila- tory addition introducing a hypothetical case which was not discussed by the classical jurist in his original work. Glosses or interpolations thus introduced do not prejudice, however, the classicity of the decision itself.

Guarneri-Citati, Indice² (1927) 40.

Finiri. To come to an end. A controversy is ^�con­sidered finished when it was brought to an end by a judgment in court, settled by an agreement of the parties, or extinguished by silence (non-activity sc. of the claimant) through a longer time” (D. 38.17.1.12).

Fiscalis. (Noun.) An official concerned with fiscal administration.—See fiscus.

Fiscalis. (Adj.) See ius fisci.

Fiscus (fiscus Caesaris). The treasury of the em­peror. It was not property of the emperor; it was only entrusted to, and controlled by, him as a fund destined for public purposes. The emperor had the right, and the moral duty as well, to dispose of the fiscal revenues only for public welfare. The main revenues of the fiscus were derived from the imperial provinces; some income came from senatorial prov­inces. The creation of the fiscus under the Principate did not abolish the aerarium populi romani which remained under the control of the senate. The fiscus was administered by imperial officials (a rationibus). Procuratores fisci appointed by the emperor decided controversies between the fisc and private individuals. The fisc gradually assumed a more privileged posi­tion towards private individuals who were its debtors (debitor fisci). In the course of time (first half of the third century) the fiscus absorbed other public funds, the aerarium Saturni (populi Romani) and the aerarium militare.—D. 49.14; C. 10.1; 8; 9; 2.17; 2.36; 3.26; 2.8; 7.73; 10.1-9.—See advocatus fisci, ARCA, AERARIUM, IUS FISCI, LARGITIONES, FRAGMEN­TUM DE IURE FISCI, RES PRIVATA, MULTA FISCO DEBITA, A RATIONIBUS, HYPOTHECA OMNIUM BONORUM, DE­FERRE FISCO, NUNTIARE FISCO, SENTENTIA ADVERSUS FISCUM, RETRACTARE CAUSAM, USURAE FISCALES, RES FISCI, PRAEDIA FISCALIA.

Rostowzew, RE 6; idem, DE 3; Humbert, DS 2; Stella- Maranca, NDI 6; Vassalli, StSen 25 (1908) ; L. Mitteis, Rom. Privatrecht, 1908, 349; Weiss, ZSS 53 (1933) 256; S. v. Bolla, Die Entwicklung des F., 1938; P. W. Duff, Personality in R. Law, 1938, 51; B. Eliachevitch, La per- sonnalite juridique, 1942, 33; Last, JRS 34 (1944) 51; Sutherland, Amer. Jour, of Philology 66 (1945) 151; Jones, JRS 40 (1950) 23.

Fiscus ludaicus. A central fund in Rome for revenues from the poll-tax paid by the Jews in the whole em­pire.

Rostowzew, RE 6, 2403; T. Reinach, DS 3, 625; Ginsburg, Jewish Quarterly Review 21 (1930/31) 281; J. Juster, Les Juifs dans I’Empire romain, 2 (1914) 282.

Flagellum. See castigare.

Fougeres, DS 2.

Flagitium. A crime against good customs, chiefly a military infraction. The term acquired later a more general meaning.

Reichenbecher, De vocum scelus, flagitium, etc. apud priscoe scriptores usu, Diss. Jena, 1913; Volterra, AG 111 (1934).

Flamines. Priests in early Rome. A flamen was as­signed to the service of a specific deity, primarily for performing sacrifices. There were altogether fifteen flamines of whom three were maiores (patricians), all others (minores). The highest in rank was the flamen Dialis (of Jupiter) who during the period of kingship was appointed by the king. He had to be born in a marriage concluded in the form farreatio and could take a wife (flaminica only by confarreatio. He was entitled to privileges (sella curulis, seat in the senate).

of con- Dialis} certain Under

See curia.

See FLAMINES, LEX VOCONIA, FLA-

the Empire special flamines were assigned to deified emperors.

Samter, RE 6; Jullian, DS 2; Anon., NDI 6; Esperan- dieu, DE 3; Rose, OCD.

Flamen curialis. Flamen Dialis.

MINICA DIALIS.

Aron, NRHD (1930) 365.

28 (1904) 5; Brassloff, St Bonfante 2

Flaminica Dialis. The wife of the flamen Dialis. She assisted her husband in his priestly functions.

Samter, RE 6, 2490; Esperandieu, DE 3.

Flavius, Gnaeus. See ius flavianum.

Fiorentina. (5c. littera.) The oldest and most au­thoritative manuscript of the Digest, written in the late sixth or early seventh century. The manuscript was preserved in Pisa during the twelfth and thir­teenth centuries (hence it is named Littera Pisana). From the beginning of the fifteenth century it has been in Florence.

Kantorowicz, ZSS 30 (1909) 186.

Florentinus. A jurist of the second century after Christ, known only as the author of an extensive manual of Institutiones (in twelve books).

Brassloff, RE 6, 2755.

Flumen. See alveus, insula.

Flumina privata. See flumina publica.

Flumina publica. Rivers flowing the year through, perpetually (flumen quod semper fluit, perenne). Navigability is not decisive. See res publicae. The public use of flumina publica is protected by special interdicts which serve to assure navigation, unloading boats, maintenance of navigable rivers, and the like. See INTERDICTA DE FLUMINIBUS PUBLICIS. The question whether water from public rivers could be diverted for private use is controversial.—D. 43.12- 15.—See ripa, aqua publica, and the following item.

Berger, RE 9, 1634; Lauria, AnMac 8 (1932) ; G. Longo, RISG 3 (1928) 243; idem, St Ratti, 1934; Grosso, ATor 66 (1931) 369; idem, Scr S. Romano 4 (1940) 175; B. Biondi, Categoria romana delle servitutes, 1938, 591; Alber- tario, St 2 (1941) 71; G. Segre, BIDR 48 (1941) 17;,Branca, AnTriest 12 (1941) 29, 71, 141; Scherillo, Le cose, 1945, 131.

Flumina torrentia. Rivers flowing during the winter only and regularly drying up during the summer. Later law treated them as flumina publica.

Costa, BIDR 27 (1914) 72.

Foederati. Citizens of a state which was tied to Rome by a treaty of alliance (foedus). “They enjoy their liberty in our country and retain their property in the same way as in their own land; we enjoy the same rights in their country” (D. 49.15.7 pr.).—See civitates foederatae.

H. Horn, Foederati, 1930.

Foedus. A treaty of friendship, peace and alliance with another state. It bound the parties to reciprocal military aid in the case of a war (foedus aequum). If the treaty was not based upon equality and Rome only was granted military assistance from the partner, the treaty was a foedus iniquum.—See socn, amici POPULI ROMANI, CIVITATES FOEDERATAE, PAX.

Neumann, RE 6; Humbert, DS 2; Paribeni, DE 3; Frezza, Le forme federative, SDH I 4 (1938) 363, 5 (1939) 161; B. Paradisi, Storia del dir. internazionale nel Medio Evo, 1 (1940) 52; De Visscher, Noxalite, 1947, 97; A. Magdelain, Origines de la sponsio, 1943, 6.—For treaties concluded by Rome see L. Lariviere, Des traités conclus par Rome avec les rois étrangers, 1892; R. v. Scala, Staatsvertrage 1 (1898).

Fons. A source of water. Syn. caput aquae. It be­comes juristically relevant when another has a right (servitude) td take water (see servitus aquae- haustus) from the source on neighbor’s property or the right to drive his cattle thereto ; see adpulsus pecoris. Persons entitled to make use of another’s fons are protected by an interdict de · fonte. On the other hand, the owner has an interdict against any one who prevents him from repairing or cleaning the spring.—D. 43.22.—See interdicta de fonte, INTERDICTA DE REFICIENDO.

Berger, RE 9, 1637; G. Longo, RISG 3 (1928) 288.

Forensia negotia. See feriae.

Forensis. Connected with a judicial court, forum (e.g., causa, res, negotium).

Forma. A legal norm, established in a statute, an edict of a magistrate, a decree-of the senate, or an imperial enactment. With regard to certain contracts (a man­date, a lease) forma indicates the contents of the agreement. Sometimes forma = formula.

Falletti, Mel Fournier, 1929, 219; De Francisci, RISG 10 (1935) 102.

Forma censualis. Regulations issued for the perform­ance of a CENSUS.

Schwahn, RE 7A, 63.

Forma idiologi. See gnomon idiologi. Forma iuris fiscalis. A rule of fiscal law. Formae. Metallic tablets on which the boundaries of a plot of land are documentarily set.

Formare. (With regard to a written document.) To draw up.

Formula. (In the formulary procedure.) A written document by which in a civil trial authorization was given to a judge (iudex) to condemn-the defendant if certain factual or legal circumstances appeared proved, or to absolve him if this was not the case (si paret... condemnato, si non paret, absolvito). Introduced by the lex aebutia, and later extended by the Augustan lex iulia iudiciorum privatorum, the formulary procedure replaced almost completely the former procedure of legis actiones. See centum­viri. The formula consisted of several clauses. Some of them, the mention of the judge appointed to decide the case (... iudex esto) and two essential parts, intente and condemn άτι o, were included in each formula. (For prejudicial actions, see formula praeiudicialis.) Other clauses, such as demon­strate and adiudicatio, were inserted in order to specify more precisely the case at issue. Some circum­stances alleged by the defendant, which, when verified, excluded his condemnation (see exceptio), might be inserted. The elasticity of the formula which made it adaptable to any case was its great advantage which explains its existence through centuries until it was gradually superseded by a new form of procedure, the COGNITIO EXTRA ordinem. In a concrete trial the formula was first proposed by the plaintiff (see editto actionis) and became decisive for the con­tinuation of the process through co-operation and consent of the defendant who, for his part, was en­titled to ask for the insertion of exceptions and for other modifications of the formula. All this took place in iure, i.e., before, and under the supervision of, the praetor who had the right to grant new for­mulae hitherto not promulgated in his edict, if such an innovatory and unprecedented formula was pro­posed by the plaintiff or his legal advisers. Such new formulae in the development of which the jurists had an important role, either as consultants of the parties or counselors to the magistrates, played an important part in the development of the Roman pri­vate law (see ius honorarium). The term formula is used promiscuously with actio and was substituted in Justinian’s codification by the latter since in his time the formula was only a historical reminiscence. Officially the formulae were abolished by an imperial constitution of a.d. 342 with the critical censure: “dangerous hair-splitting” (C. 2.57).—See besides the items mentioned above, praescriptiones, ea res agatur, quanti ea res est, some entries under actio, actiones and the following items.

Wenger, RE 6; LĂ©crivain, DS 4, 227; Anon., NDI 6; Berger, OCD 487; Kùbler, ZSS 16 (1895) 137; Partsch, Schriftformel im rom Provincialprozess, 1907 ; Huvelin, Mèi Gèrardin, 1907, 319; R. De Ruggiero, BIDR 19 (1907) 255; Arangio-Ruiz, Les for mules des actions, in Al Qanoun Wai Iqtisad 4 (1934) ; Naber, TR 1 (1918) 230; Kocourek, Virginia LR 8 (1922) 337, 434; Wlassak, Die klass. Prozessformel, SbWien 202 (1924) ; Wenger, Prae­tor und Formel, SbMunch 1926; Betti, CentCodPav (1934) 451 ; O. Carrelli, La genesi del procedimento formulare, 1946; C. Gioffredi, Contributi allo studio della procedura civile rom., 1947, 65; Biscardi, RISG 86 (1949) 444; G. Pugliese, Il processo formulare, 1-2 (fusioni Genova, 1948-1949); Arangio-Ruiz, lura 1 (1950) 15; G. I. Luz- zatto, La procedura civile rom., 3. La genesi del procedi­mento formulare, 1950.

Formula arbitraria. See actiones arbitrariae.

Formula Baetica. An epigraphically preserved exam­ple of a fiducia as a pledge (mancipatio fiduciae causa) given to a creditor.

Edition: Arangio-Ruiz, FIR 3 (1942) no. 92; Graden- witz, SbHeid 1915, 9, p. 12.

Formula census. See lex censui censendo.

Formula certa—incerta. See actiones certae.

Formula Fabiana. See actio calvisiana, fragmen­tum DE FORMULA FABIANA.

Formula ficticia. See actiones ficticiae.

Formula in factum concepta. See formula in ius concepta.—D. 19.5.

De Francisci, StSen 24 (1907) ; De Visscher, RHD 4 (1925) 193 (—Étude s de dr. rom. 1931, 359) ; LĂ©vy-Bruhl, Prudent et prĂ©teur, RHD 5 (1916) 5; Lenel, ZSS 48 (1928) 1; Fabia, Mèi Huvelin, 1938; Collinet, La nature des actions, 1947, 337; Philonenko, RIDA 3 (—Mèi De Visscher 2, 1949 ) 237.

Formula in ius concepta. Ant. formula in factum concepta. The distinction is based on the contents of the intentio in the procedural formula. When a question of law is raised, as, for instance, when the plaintiff claims the ownership over a thing or an­other right, under Quiritary law, or when he sues for the performance of an obligation by the defendant under civil law (dare oportere), there is in the in­tentio a direct or indirect reference to a legal trans­action or relation protected under ius civile. In a formula in factum, however, the intentio mentions the fact from which the plaintiff draws his claim and the judge is authorized to condemn the defendant if the fact in question is proved. The formula in factum is adapted to the particular circumstances of the case, for instance, when a freedman summons his patron to court, or when a person summoned to court does not appear or give a guaranty. The substantial dif­ference between the two kinds of formulae is that in the formula in facttim the condemnation of the defendant is connected with a fact from which his lia­bility is derived, whereas in the formula in ius the establishment of a specific right of the claimant either over a thing or to a performance by the defendant effects the condemnation of the latter. In the crea­tion of formula in factum the jurists and the judicial magistrates (the praetors) equally co-operated. Granted first in specific cases the formula in factum gradually entered into the praetorian edict in the form of an announcement of the praetor that he was willing to grant an action in certain situations, not protected hitherto by the law. The formulae in factum were an important factor in the development of the ius honorarium.—See formula in factum concepta (Bibl.), INTENTIO.

Formula Octaviana. (Actio quod metus causa.) See METUS.

O. Carrelli, La genesi della procedura formulare, 1946,200. Formula petitoria (iudicium petitorium). The for­mula used in so-called actiones in rem by which the plaintiff claims a right over the thing at issue. The formula petitoria is applied in a rei vindicatio. It is opposed to another form of process when owner­ship of a thing is involved; see agere per spon- SIONEM.

Formula praeiudicialis. The formula of the so-called prejudicial actions; see actiones praeiudiciales. The formula has only an intentio and no condem- natio, since the final statement by the judge estab­lishes the existence of a legally important fact only. Formulae. Formularies for last wills, contracts, ac­tions, and the like. Collections of such forms were a favorite type of juristic writings in the early Re­public. Such collections are known as ius aelianum (see AELIUS PAETUS CATUS), IUS FLAVIANUM, Monu- menta Maniliana (see manilius). The last collec­tion written by Manlius Manilius (consul 149 b.c.) was in use until the end of the Republic.

Fortasse, fortassis, forte. Perhaps, perchance, by accident. The words are used frequently by the compilers to introduce fictitious examples or, par­ticularly by nisi forte, to add some restrictions to a legal norm expressed before.

Guarneri-Citati, Indice² (1927) 40 (Bibl.); idem, St Riccobono 1 (1936) 721.

Fortuitus casus. An accident “which cannot be fore­seen by human mind” (D. 50.8.2.7).—See casus (Bibl)., TERRAE MOTUS.

Kiibler, Fg Gierke (1911) 26.

Forum. (In procedural law.) The competent court (forum competens) before which one can be sued. Special courts had jurisdiction in specific cases; see DECEMVIRI STLITIBUS IUDICANDIS, CENTUMVIRI, RE­CUPERATORES. There were praetors with a special jurisdiction, as, e.g., the praetor fideicommissarius, tutelaris, and likewise the prefects in Rome were com­petent in particular controversies connected some­what with their specific domain of administration. A general rule, actor sequitur forum rei (C. 3.13.2; 3.19.3; Frag. Vat. 326) established that the plaintiff could sue the defendant only where the latter had his judicial status either through origin (origo) or domi­cile (see domicilium, incola). If the defendant is summoned (in ius vocatio) before a magistrate not competent to try the case, he must answer the sum­mons, but the magistrate will refuse the action to the plaintiff (denegare actionem). The.place where the defendant had to pay the debt, determined in certain cases the competent court. In Justinian’s law trials concerning an immovable belonged to the court of the place where the immovable was situated. For delictual obligations the place where the offence was committed was decisive in the later law. For all these kinds of fora non-Roman terms were coined in literature (forum domicilii, contractus, rei sitae, de­licti). Non-Roman is also the term forum proro­gatum (prorogatio fori), when, by an agreement of the parties, a special court was selected. A change of the court after the joinder of issue (litis contes­tatio) was impossible. It was the duty of the judicial magistrate approached by the parties “to examine whether he was competent in the specific case” (an sua est iurisdictio, D. 5.1.5).—D. 5.1: C. 3.13.

Kipp, RE 7.

Forum. A market place, a small community (like vicus).

Schulten, RE 7, 62 (no. 3) ; Thedenat, DS 2, 1278.

Fossa. A channel, a water way.—See lacus, flumina publica.

Fragmenta de iudiciis. Three brief excerpts from an unknown work, perhaps a commentary on the section de iudiciis of the praetorian edict. The manuscript is of the fifth or sixth century.

Editions in all Collections of Fontes (see General Bibliog­raphy, Ch. XII) ; the most recent one in Baviera FIR 2² (1940) 625.—Berger, RE 10, 1192.

Fragmenta de iure fisci. A few excerpts from a treatise on the rights of the fisc. Author and date are unknown. The manuscript is preserved on parchment; it was written in the fifth or sixth cen­tury.

Editions in all Collections of Fontes; the most recent one in Baviera, FIR 2² (1940) 627.—Brassloff, RE 7.

Fragmenta Vaticana. A collection of legal texts pre­served in a Vatican manuscript. It contains excerpts from the works of Papinian, Ulpian, and Paul (iura) and imperial constitutions, primarily by Diocletian (leges). For the selection of the constitutions the Codices Gregorianus and Hermogenianus were prob­ably used but not the Codex Theodosianus. The collection was compiled presumably in the second half of the fourth century.

Editions in all collections of Fontes (see General Bibliog­raphy, Ch. XII), recently Baviera, FIR 2² (1940) 463; Brassloff, RE 7; Volterra, NDI 12 (s.v. Vat. Fr.) ; Fel- gentrager, in Romanistische Studien {Freiburger rechtsge­schichtliche Abhandlungen 5, 1935) 27; Albertario, Studi 5 (1937) 551; F. Schulz, Hist, of R. legal science, 1946, 310; v. Bolla, Scr Ferrini 4 (Univ. Sacro Cuore, Milan, 1949) 91.

Fragmentum de bonorum possessione. A brief text on bonorum possessio ascribed to Paul; it is pre­served on a parchment sheet.

First edition: P. M. Meyer, ZSS 42 (1921) 42; Baviera, FIR 2² (1940) 427.

Fragmentum de formula Fabiana. A brief excerpt from a juristic writing (by Paul?), named in litera­ture “de formula Fabiana " rather inappropriately in spite of three mentions of that formula. It is pre­served in a parchment manuscript.—See actio cal- VISIANA.

Edition: Baviera, FIR 2² (1940) 429 (Bibl.).—Albertario, Studi 5 (1937) 571.

Fragmentum Dositheanum. This name is applied to a longer excerpt from a collection of passages used for translations from Latin into Greek and vice versa. It is commonly ascribed to the grammarian of the late fourth century after Christ, Dositheus, the author of Ars grammatica. The text preserved in both lan­guages, is inaccurate and full of errors and contains some general conceptions and an extensive section on manumission which goes back probably to a classical elementary treatise.

Editions in all collections of Fontes (see General Bibliog­raphy, Ch. XII) ; lastly by Baviera, FIR' 2² (1940) 617.— Jors, RE 5, 1603; Berger, RE 10, 1192; G. Lombardi, Il concetto di ius gentium, 1947, 246 (Bibl.).

Frangere. To break. The verb occurs in connection with the harmful wrongdoings in the lex aquilia which may provide cause for an action for damages (actio legis Aquiliae) against the wrongdoer.—See os FRACTUM.

Frater. A brother. Brothers (fratres) are the sons of the same parents (= germani) but also the sons of the same father only (per patrem, fratres consan­guinei) or of the same mother (per matrem, uterini). Under the ius civile brothers had a right to intestate succession in the group of the next agnates (proximi agnati), under the praetorian law (see bonorum pos­sessio intestati) in the groups unde legitimi and unde cognati. The term fratres covers both brothers and sisters, unless a narrower sense is evident from the context. An adopted son is considered to be a brother of the other sons of the adoptive father (per adoptionem quaesita fraternitas). Prohibited, how­ever, was adoptio in fratrem — adoption of a person as a brother of the adopting person (fratrem sibi per adoptionem facere) in order to institute him as an heir.

Volterra, BIDR 41 (1933) 289; Koschaker, 57 Riccobono 3 (1936); Nallino, ibid. 321 (= Raccolta di scritti, 1942, 585).

Fratres Arvales. See arvales.

Fratres germani (uterini). See frater, germani. Fratres patrueles. See consobrini.

Fraudare. To defraud. “No one is held to defraud persons who know the matter and agree” (D. 42.8.6.9 = 50.17.145). Fraudare creditores (syn. in fraudem creditorum agere) — to act in order to de­fraud the creditors by diminishing one’s property, e.g., through forbidden donations, manumissions of slaves, or alienations. Such fraudulent acts could be made by a freedman in order to deprive his patron of successional benefits (fraudare patronum).—See fraus.—C. 6.5.

Fraudare censum. See fraudare vectigal.

Fraudare creditores. See fraudare.

Fraudare patronum. See fraudare.—C. 6.5.

Fraudare legem. To evade a law by a fraudulent transaction, e.g., to sell a thing at a small fictitious price in order to cover up a forbidden donation. Syn. in fraudem legis agere.—See fraus legi facta.

Fraudare vectigal (censum and the like). To evade taxation or other payments due to the state.

Fraudatio. See fraudare, fraus. Fraudationis causa = (an act accomplished) for the purpose of defraud­ing another.

Fraudator. A deceiver, in particular a debtor who is acting in order to defraud his creditors (in fraudem creditorum).—See fraudere, fraus, interdictum FRAUDATORIUM.

Solazzi, Revoca degli atti fraudolenti l³ (1945).

Fraudatorium interdictum. See interdictum frau­datorium.

Fraudulosus. Using fraud, deceitful fraudulent. For fraudulosus in the definition of theft, see furtum.

Fraus. A detriment, disadvantage. The term means also evil intention, fraud (syn. dolus) and, conse­quently, any act or transaction accomplished with the intention to defraud another or to deprive him of a legitimate advantage. In contractual relations the term had a particular importance with reference to acts committed for the specific purpose to deceive the creditors through alienations (diminution of prop­erty) performed in order to become insolvent and unable to pay one’s debts to the creditors (fraudare creditores, in fraudem creditorum agere). Credi­tors thus deceived could obtain the rescission of such fraudulent alienations (donations, manumissions of slaves). Various remedies were introduced in the course of time. One of them was the interdictum fraudatorium. Under specific circumstances the praetor granted restitutio in integrum by which the debtor’s deceitful deeds (fraudationis causa gesta) were annulled. A specific action for the rescission of such alienations was an actio in factum, named actio Pauliana (the origin of the name is not clear). The action substituted in Justinian law the other remedies ; the pertinent interpolations produced a certain obscurity in details as far as the classical law is concerned. The action was applicable against any third person who profited by the transaction with the insolvent debtor and knew of his fraud.—D. 42.8; C. 7.75.—See the foregoing items, conscius fraudis, ALIENATIO, INTERDICTUM FRAUDATORIUM, REVOCARE ALIENATIONEM.

Conforti, NDI 2 (s.v. azione revocatoria) ; G. Rotondi, Gli atti in frode alla legge, 1911; P. Collinet, NRHD 43 (1919) 187; Guarneri-Citati, Mèi Cornil 1 (1926) ; Schulz, ZSS 48 (1928) 197; Radin, Virginia L Rev 18 (1931) ; F. Palumbo, L’actio Pauliana, 1935; Albertario, Studi 3 (1936) 523 ; H. Krüger and Μ. Kaser, ZSS 63 (1943) 117 ; Solazzi, Revoca degli atti fraudolenti, 1934 (3rd edition, 1, 1945).

Fraus legi facta. The Romans did not elaborate a real doctrine of fraus legi facta. There was a dis­tinction between contra legem facere ( = to do what the law forbids) and in fraudem legis facere (“who evades the intention of a statute but respects his wording,” D. 1.3.29). In other words, a fraus legi occurs “when something is done what the law ex­pressly did not forbid, but what it did not want to be done” (D. 1.3.30). Acting in fraudem legis was considered simply a violation of the law and it pro­duced those consequences which were provided by the law.

Rotondi, Gli atti in frode alla legge, 1911 ; idem, BIDR 25 (1912) 221 (= Scritti 3 [1922] 9) ; Lewald, ZSS 33 (1912' 586; Scheltema, Rechtsgeleerd Magazijn 55 (1936) 34 (Bibl.) 96; J. Bréjon, Fraus legis, Rennes, 1941; idem, RHD 22 (1949) 501.

Fraus patroni.- Defrauding his patron by a freedman through the performance of alienations by which his rights of succession are impaired. See*actio cal- visiana. As early as a.d. 4 the lex aelia sentia declared manumissions of slaves in fraudem credi­torum void.—C. 7.75.

Fructuarius. Used of a person entitled to the usufruct of a thing (syn. usufructuarius) and of the thing itself being in usufruct (e.g., servus fructuarius).— See USUSFRUCTUS.

Fructus. Fruits, products, proceeds. The term com­prises primarily the natural produce of fields and gardens, offsprings of animals, and proceeds obtained from mines (fructus naturales). Profits obtained through legal transactions (the rent from a lease) are also conceived as fructus (fructus civiles, non­Roman term). Children of a female slave (partus ancillae) are not considered fructus. As a matter of rule, the owner of a thing which produces fruits has the right of ownership over them. In certain specific legal situations, however, a person is given the right to the fruits from another’s property (ususfructus, bonae fidei possessio, emphyteusis). The extension of such rights as to both the kind of fruits and the moment when they are acquired by the third person, is ruled by special provisions. Natural fruits become legally fructus after separation from the thing (land, tree, etc.) which produced them (separatio fructuum, fructus separati). Before separation (fruc­tus pendentes) they are part of the principal thing and belong to the owner.—Fructus is sometimes iden­tified with ususfructus.—D. 22.1; C. 7.51.—See the following items, impensae, ususfructus, possessor BONAE FIDEI, VENATIO.

De Martino, St Seorsa, 1940; Fabi, AnCam 16 (1942-44) 53; P. Ramelet, L'acquisition des fruits par I’usufruitier, These, Lausanne, 1945; Kaser, ZSS 65 (1947) 248.

Fructus civiles (naturales). These are modern ex­pressions. See fructus. For fructus civiles the Roman juristic language used the expressions loco fructuum, pro fructibus.

Fructus consumpti. Fruits already consumed; see perceptio fructuum. They are distinguished from fructus exstantes (fructus non consumpti) = fruits separated and gathered but not yet consumed.

Fructus dotis. The proceeds of a dowry. They be­long to the husband.—See dos.

Fructus duplio. See vindiciae falsae.

Fructus exstantes (stantes). Fruits still existing and not consumed; see fructus consumpti.

Fructus licitatio. A specific act in the procedure of possessory interdicts (interdictum uti possidetis, utrubi). The temporary possession of the contro­versial property is assigned to the party who assumes the duty to pay a higher sum to the adversary in the case he would lose the claim for ownership in the trial to follow.

Berger, RE 9, 1697; Arangio-Ruiz, DE 4, 70; Siber, Ser Ferrini 4 (Univ. Sacro Cuore, Milan, 1949) 101.

Fructus naturales. See fructus, fructus civiles.

Fructus pendentes. Fruits not separated from the thing (land, tree, etc.) which produced them. They are considered a part of the land (pars fundi) until they are separated. Ant. fructus separati.—See usus­fructus.

Fructus percepti. Fruits of which one took possession by separating and gathering them.—See perceptio fructuum.

Fructus percipiendi. Products which the fruit-bearing thing would have produced if the holder of it had taken the necessary care. In exceptional cases they were taken into consideration when the restitution of a thing with all its proceeds was involved.—See POSSESSOR BONAE FIDEI.

Ratti, Ann. Univ. Toscane 47 (1930) 37.

Fructus rei pigneratae. The proceeds of a thing given as a pledge to the creditor. The question as to whether they are pledged too by virtue of a tacit agreement of the parties (so in Justinian law) or only when there was an explicit agreement to this effect, is controversial as far as the classical law is concerned. The sources deal primarily with the problem with reference to the offsprings of a female slave (partus ancillae).

Romano, AnCam 5 (1931) ; Carcaterra, ibid. 12 (1938) ; idem, AnBari 3 (1940) 123; Arno, ATor 75 (1939-40); De Robertis, AnBari 9 (1948) 31.

Fructus separati. Fruits separated from the fruit­bearing thing. Only through separation the fruit becomes juristically fructus. Ant. fructus pendentes. —See FRUCTUS.

Fruges excantare. See excantare fruges.

Frui. Refers to the person who has the right to the proceeds (see fructus) of a thing.—See usus­fructus.

Frumentarii. Military officials charged with the care for provisions for the army.

Vaglieri, DE 3; Cagnat, DS 2; Paribeni, Mitteilungen des kais. deutsch. Archaeol. Inst., Rom. Abt. 20 (1905) 310.

Frumentationes. Doles of free corn distributed to the needy or sold them at a low price.—See lex sem­PRONIA FRUMENTARIA, FRUMENTUM, TESSERAE FRU­MENTARIAE.

Humbert, DS 2; Cardinali, DE 3; Rostowzew, RE 7, 172; D. Van Berchem, Distribution de ble sous VEmpire, Geneve, 1939; Momigliano, SDHI 2 (1936) 374.

Frumentum. The administration of corn supply for Rome and the needs of the state (military provisions, frumentationes). Frumentum is used in the sense of free distribution of corn (e.g., cura frumenti, see frumentationes).—C. 11.24; 28.—See annona.

Rostowzew, RE 7.

Frumentum emptum. The corn which Rome bought from provinces with a rich agricultural production (e.g., Sicily) at a price fixed by herself. Sometimes the quantity of corn to be furnished and paid for was dictated by Rome (frumentum imperatum).

Humbert, DS 2; Schwahn, RE 7A, 30.

Frumentum imperatum. Compulsory supply of corn from a province against compensation when the fru­mentum emptum did not suffice.

Rostowzew, RE 7, 165.

Frumentum in cellam. The provision of corn for the governor of a province and his staff to be furnished by the provincials at a price fixed by the senate.

Frumentum publicum. Corn distributed among the needy people by the state (frumentationes). See LEX SEMPRONIA FRUMENTARIA, LEX CLODIA FRUMEN- taria. Initiated under the Republic, the distribu­tion was reformed by Augustus and continued by his successors. Nature and purposes of the action were not always the same.

Frustra. (With reference to a legal transaction, a donation, a sale, or a judicial action.) Indicates the legal non-validity or deficiency of the act accom­plished.

Hellmann, ZSS 23 (1902) 428.

Frustrari (frustratio, frustrator). To obstruct the continuation and conclusion of a trial by resorting to tricks, such as evading summons to appear in court, hiding, or appealing without any chance of success. With regard to the payment of a debt frustrari = to fail to fulfill an obligation at the fixed date.—See MORA.

Fufidius. A little known jurist in the early Principate, author of a collection of Quaestiones.

Brassloff, RE 7, 201.

Fuga. A flight (of a slave). Servus in fuga — servus fugitivus. In the language of later imperial consti­tutions fuga = evasion of public charges (fuga mu­nerum, fug ere wtunus).

Fuga lata. See interdictio locorum, exilium.

Fugiens. In Justinian’s constitutions refers to the defendant in a trial.

Fugitivarius. A man whose occupation was to catch fugitive slaves for a reward.—See servus fugitivus. Daube, JurR 64 (1952) 12.

Fugitivus. A fugitive. See servus fugitivus. The term is also applied to fugitive coloni and lessees of imperial estates.—C. 11.64.

Fulcinius Priscus. A little known jurist of the early Principate.

Brassloff, RE 7, 212 (no. 6).

Fullo. A fuller. He is responsible for taking care (custodia) of the customers’ clothes accepted for fulling. See LIS FULLONUM.

M. Maxey, Occupation of the lower classes etc., Chicago, 1938, 34; Rosenthal, ZSS 68 (1951) 260.

Fumus. A vaporous or odorous smoke. A disturbing smoke from the neighbor’s house or factory (the sources mention the case of a cheese factory, D. 8.5.8.5) might be contested in court by the owners of the plots in the neighborhood, unless the adver­sary had a servitude which entitled him fumutn iminit- tere (= to let go the smoke to the neighbor’s prop­erty, servitus fumi immittendi). Similar disturbances at a public place could be combated by an interdict. Bonfante, Corso 2, 1 (1926) 309.

Functio. (From fungi.) The performance of official or other duties. Functio refers at times to public charges and payments. The term is frequently used by the imperial chancery.—See genus, fungi. Savagnone, BIDR 55-56 (1952) 37.

Fundus. A plot of land. “By the term fundus any building and any plot of land, as well as land with buildings thereon are indicated” (D. 50.16.211).— See DOS FUNDI, INSTRUMENTUM FUNDI, INTERDIC­TUM QUEM FUNDUM, LOCUS, PRAEDIUM, INSTRUCTUM, FRUCTUS PENDENTES.

Schulten, RE 7; idem, DE 3; Humbert, DS 2; E. Kaila, L*unite foncicre en dr. rom., 1927; Steinwenter, Fundus cum instrumento, SbWien 221, 1 (1942) 10; M. Kaser, Eigentum und B esita, 1943, 259.

Fundus dotalis. Land constituted as a dowry.—See LEX IULIA DE FUNDO DOTALI.------------------------------------------------ D. 23.5 ; C. 5.23.

Fundus in solo Italico. A plot of land in Italy.—See PRAEDIA ITALICA, RES MANCIPI.

Fundus limitaneus (limitotrophus). A borderland of the Empire.

Fundus patrimonialis. Land belonging to the patri­monium principis in the later Empire. It was mostly exploited through emphyteutical leases.—C. 11.62—65.—See EMPHYTEUSIS.

Fundus provincialis (predium, solum provinciale). Provincial land. Quiritary ownership could not be acquired thereon because according to a Roman con­ception provincial soil was considered as belonging to the Roman people or to the emperor. Conse­quently, usucapio of such land was excluded. See longi temporis praescriptio. In later times pro­vincial land was granted in exceptional cases to individuals.

Klingmuller, Die Idee des Staatscigcntums am Provin- sialboden, Philologus 69 (1910) 71; T. Frank, J RS 17 (1927) 141; Levi, Ath 7 (1929); Segre, ATor 1936; Kaser, ZSS 62 (1942) 74; Bozza, AnMac 15 (1941) 83; eadem, Ath 20 (1942) 66, 21 (1943) 21; Ciapessoni, Studi su Gaio, 1943, 47 (Bibl.).

Fundus stipendiarius (tributarius). See praedia STIPENDIARIA, TRIBUTARIA.

Fundus uti optimus maximus. A clause in a sale of a land to the effect that it is in the best and perfect condition, i.e., free from servitudes. A similar clause was used in sales and legacies of buildings and land. In the case of a legacy also the necessary appurte­nance (instrumentum fundi) was understood as be­queathed.

Fundus vectigalis. See ager vectigalis.

Fungi. To perform official functions (e.g., as a magis­trate or judge). With regard to a trial fungi = to be a party to it (e.g., fungi partibus actoris). Fungi vice (partibus) alicuius = to act, operate in the place of another; see vice.

Funerarius. See actio funeraria, privilegium fu­nerarium.

Funus. A funeral. The disturbance of a funeral was punished under the lex iulia de vi privata.—See ACTIO FUNERARIA, sumptus funerum.

Fur. A thief.—See the following items, furtum, mora. Fur balnearius. A thief who steals clothes and other things in a bathing establishment.—D. 47.17.—See balineum.

Humbert. DS 2. 1409.

Fur diurnus. A thief who steals during the day. Ant. fur nocturnus = who steals during the night.

Fur manifestus (nec manifestus). See furtum

MANIFESTUM.

Fur nocturnus. See FUR diurnus.

Furari. To commit a theft.—See animus furandi, FURTUM.

Furca. An instrument with two prongs used for the execution of the death penalty by hanging the criminal.

Furere. To be (or become) insane.—See furiosus, FUROR.

Furiosus. An insane person, a lunatic. “A furiosus is considered to be absent” (D. 50.17.124.1). “He has no will” (D. 50.17.40) and therefore manifestations of his will are deprived of validity. He is not able to conclude a legal transaction except during a lucid interval (see intervalla) when he regains a normal state of his mental faculties. During his insanity a furiosus is under control of a curator who manages his affairs. See curator furiosi, bonorum pos- sessio furiosi nomine. The juristic sources apply several terms for insane persons, such as demens, mente captus, insanus, non suae (sanae) mentis, non compos mentis. No legal distinction was applied to the various kinds of lunatics.—See substitute

PUPILLARIS.

A. Audibert, Etudes d'hist, du droit. 1. La folie et la pro­digalite, 1892; De Francisci, BIDR 30 (1921) 154; Solazzi, Mouseion, 2 (1924) ; Lenel, ZSS 45 (1925) 514; Guarino, AnCat 3 (1949) 194; Renier, RIDA 5 (1950) 429.

Furius Anthianus. A jurist of the first half of the third century after Christ, seemingly the author of a commentary on the praetorian edict.

Brassloff, RE 7, 319 (no. 22) ; F. Schulz, History of the R. legal science (1946) 201.

Furor. See FURIOSUS.

Furor intermissus. See intervalla dilucida.

Furtum. A theft. The classical conception of furtum included not only an actual removal of another’s thing, but any intentional handling (see contrecta- tio) of another’s thing with the view to derive a profit therefrom (lucri faciendi, lucrandi causa). This broad definition embraced not only simple steal­ing but also the most different acts of making use of another’s thing without the knowledge of, or con­trary to an agreement with, the owner, such as, for instance, selling another’s thing, collecting money from another’s debtor as a payment, without authori­zation by the creditor, and the like. The object of furtum could be only a movable though opinions to the contrary were not absent. Even a free person (a son or wife) could be “stolen.” There was no furtum if there was not an owner of the stolen thing, as, e.g., if the thing was a res nullius or belonged to an inheritance not yet entered upon by the heir, since such a thing was considered (in earlier law) to be a res nullius. Qnly a fraudulent contrectatio could be qualified as furtum since “no one commits a theft without evil intention” (Inst. 4.1.7), which in the sources is termed as animus (affectus) furandi, furis, furti faciendi. The terms may be of later coinage. There was no theft when one took another’s thing in the erroneous belief that it was his or that he was making use of it with the owner’s consent. Furtum was a private crime (delictum) prosecuted only by the person who suffered the loss. Two actions lay against the thief, first the condictio furtiva (available also against the heir of the thief) for the recovery of the stolen property (together with the proceeds) and second, the actio furti for a private penalty (actio poenalis) the amount of which depended upon the kind of the theft, see furtum manifestum, furtum non manifestum. This action could not be brought against the heir of the thief. In certain legal situa­tions it was not the owner but another person who was entitled to sue the thief (a possessor bonae fidei, a usufructuary; a creditor from whom the debtor’s pledge was stolen). Furtum indicates sometimes the stolen thing itself.—D. 47.2; 5; 13.1; C. 4.8; 6.2.— See ANIMUS FURANDI, CONTRECTATIO, NATURALIS LEX, RES FURTIVA, OPE CONSILIO, MONETA, PECULATUS.

Hitzig, RE 7; Humbert, DS 2; Brasiello, NDI 6; Berger, OCD\ Μ. Pampaloni, Scritti 1 (1947, written 1894) 559, 653; Schulz, ZSS 32 (1911) ; P. Huvelin, Le furtum, 1915; Buckland, NRHD 41 (1917) 5; E. Levy, Konkurrenz der Aktionen, 2, 1 (1922) 90; Bossowski, AnPal 13 (1929) 343; Daube, Camb LJ 1937, 217; Schepses, SDHI 4 (1938) 99, 5 (1939) 140; H. F. Jolowicz, Digest 47.2, De furtis, 1940; Tabera, SDHI 8 (1942); U. Baglivo, Sul reato permanente nel dir. penale rom., 1943, 14; Μ. Kaser, Das altröm. lus, 1949, 213; Niederländer, ZSS 67 (1950) 185;

K. Olivecrona, Three essays in R. law, 1949, 43; De Robertis, AnBari 10 (1950) 55;� Rosenthal, ZSS 68 (1951) 244.

Furtum balnearium. See balineum, fur balnearius.

Furtum conceptum. Occurs “when a stolen thing has been sought and found with somebody in the pres­ence of witnesses” (Gaius, Inst. 3.186). The man could be sued by actio furti concepti for a threefold value of the thing stolen as a penalty, even if he was not the actual thief. In the latter case he himself had an actio furti oblati against the person who passed on to him the thing stolen even if the latter did not commit the theft. These actions disappeared in the law of the later Empire. The receivers of stolen things were liable for furtum nec manifestum.

Daube, TR 15 (1937) 48; idem, St in biblical law, 1947, 260.

Furtum domesticum. A theft committed by a person pertaining to the household.

Μ. Piques, Vol a I’interieur de la domus, Dijon, 1938.

Furtum manifestum. A theft detected when being committed. Some jurists extended the qualification “manifest theft” to cases lying beyond the catching the thief in the very act. The opinions of the jurists varied as to the essential elements of furtum mani­festum (capture of the thief on the spot, capture on the day of the theft with the thing stolen being still in his possession, seizure of the thing thrown away by the thief pursued). The Twelve Tables con­sidered a furtum manifestum when the thief was convicted through an investigation lance et licio. Capital punishment for furtum manifcstum, ordained in that legislation, was later commuted into fourfold penalty. Ant. furtum nec manifestum.—See DE- PREHENDERE, DEICERE E SAXO TARPEIO.

F. De Visscher, Etudes de dr. rom., 1931, 135; Arangio- Ruiz, La repression du vol flagrant, in Al Qanoun Wal Iqtisad 2 (1932) 109 (= Rariora, 1946, 197) ; Aru, AnPal 15 (1936) 128; Carrelli, AnBari 2 (1939).

Furtum nec manifestum. A theft which cannot be qualified as an open theft; see furtum manifestum. The private penalty was double the value of the thing stolen.

Furtum non exhibitum. Occurs when the stolen goods are not produced (see exhibere). The thief who failed to produce them was liable in a praetorian action (actio furti non exhibiti) if they were found later on his premises.

Furtum oblatum. See furtum conceptum.

Furtum possessionis. The theft of a thing by its owner from the person who has the right to hold it (a usufructuary, a creditor holding the debtor’s pledge). See FURTUM REI SUAE.

C. Ferrini, Opere 5 (1930, written 1886) 107; M. Pampa- loni, Scritti giuridici 1 (1947) 673 (written 1894) ; Sciascia, Archivio penale, 1947, 319.

Furtum prohibitum. An actio furti prohibits, of prae­torian origin, was granted against one who prevented another from searching a thing which had been stolen from him. The penalty was fourfold damages.—See LANCE ET LICIO.

D. Daube, Studies in Biblical Law, 1947, 276.

Furtum publicum. See peculatus.

Furtum rei suae. A theft committed by the owner of a thing who took it away from the person who had the right to,keep it.—See furtum possessionis.

Sciascia, Archivio penale, 1947, 319.

Furtum usus. A theft committed by an illicit use of a thing, which one obtained from the owner for a specific purpose, against the owner’s will and beyond the limits imposed by the latter. Such a theft oc­curred, for example, when a depositary, a receiver of a commodatum, a creditor holding a pledge used the thing for other purposes than agreed upon. The classical origin of the term is rather doubtful.

C. Ferrini, Opere 5 (1930, written 1886) 107; M. Pampa- loni, Scritti giuridici 1 (1947) 717 (written 1894).

Fustigatio, fustis. See castigatio, crux.

Fustuarium supplicium. The execution of a slave or a deserter condemned to death by beating him with Clubs.—See CASTIGATIO, DESERERE.

FutUta. See PRAETERITA.