Roman Law Terms with Letters H

Habere (rem). “Used in a double sense, since we say habere of a person who is the owner (dominus) of a thing and of one who without being its owner holds it. Finally we use to say habere of a thing which is deposited with us” (D.

Habere licere. To enjoy full possession of a thing without being disturbed by another person.—See. EMPTIO, VACUA POSSESSIO, STIPULATIO HABERE LICERE.

M. Kaser, Eigentum und Be sits, 1943, 14; Coing, Sem 8 (1950) 9.

Habitatio. As a personal servitude (servitus per­sonae), this is in fact a type of the servitude usus: the right to use another’s house for dwelling. It used to be granted primarily by legacy. It was strictly personal in classical law and could not be transferred to another person. Transfer was ad­mitted, however, in Justinian’s law. Quite different is the legal structure of the right of habitatio �?ob­tained through a contract of lease of a house (loca­tio conductio rei). The reciprocal rights and duties of the lessor and the tenant (habitator, inqui­linus) are governed by the rules of locatio conductio rei.—Inst. 2.5; D. 7.8; 33.2; C. 3.33.—See hospes, usus.

Leonhard, RE 7; De Villa, NDI 6; Ricci, ibid. 1 (abita- sionc) ; De Ruggiero, DE 3; Cicogna, Fil 1906; Berger, Wohnungsmictc in den Papyri, ZVR 29 (1913) 321; G. Grosso, Uso, abilasionc, 1939.

Habitator. See habitatio.

Habitus. (Perfect passive participle of habere.) With reference to things done = concluded (e.g., contrac­tus, eniptio) ; pronounced, passed (sententia = a judgment) ; contained (in a document, in testimony). Habitus corporis. The bodily appearance, constitu­tion. In earlier times it was the basic element of puberty (see їм pubes).

A. B. Schwarz, ZSS 69 (1952) 371.

Habitus matronalis. See matrona.

Haec quae necessario. These are the initial words of Justinian’s constitution (of February 13, 528) in which he announced his plan of a code of imperial constitutions (the first edition of his Code).—See CODEX IUSTINIANUS.

Haeretici (haeresis). Heretics (heresy). The legis­lation of Christian emperors frequently dealt with heretics. The Codex title 1.5, which contains the pertinent enactments (from 326 until 521) starts with Constantine’s statement that “Privileges which have been granted with regard to religion, are only in favor of those who observe the Catholic law (Catho­lica lex). We wish that heretics not only be ex­cluded from those privileges but also be subject to various public charges” (C. 1.5.1). Heretics were excluded from public offices and had no political rights. Restrictions in the field of private law were manifold: inability to acquire landed property, to make a testament or to inherit under one. Certain types of heresy were prosecuted as a crime. The most severe penalties were inflicted upon Mani- chaeans.—See 1.15; 1.10; Nov. 45.109.132.—See APOSTATA, IUDAEI.

Th. Mommsen, Rom. Strafrecht (1899) 595; Volterra, BIDR 42 (1934) 453; Balan, ACII 1 (1935) 483; C. Pharr, Codex Theodosianus, 1951, 582.

Harena. Sand.—See ius harenae fodiendae. Harenarius. See arenarius.

Harmenopoulos, Constantine. The author of a com­pilation of Roman law as it was about the middle of the fourteenth century (a.d. 1345) still in force in the Byzantine Empire. The collection contains ex­cerpts from earlier Byzantine compilations (Ecloge, Peira, the two S упор seis, Novels of the emperor Leo, Procheir os Nomos). The title of the work is Hexa- biblos ( — in six books). It is also called Prochiron ton потоп ( — Manuale legum).

Editions: G. E. Heimbach, Manuale legum sive Hexa- biblos, 1851; Translation: H. E. Freshfield, A manual of Bysantine law, compiled in the fourteenth century, Part VI: On torts and crimes, Cambridge, 1930.—Mortreuil, Histoire du droit byzantin, 3 (1846) 349, 495; Mauro­cordato, Rev.

Haruspices. Diviners who interpreted abnormal phe­nomena in the inner organs of sacrificial animals, also celestial phenomena (lightning).

Thulin, RE 7 ; idem, DE 3 ; Pease, OCD ; Bouché-Lcclercq, DS 3; G. Wissowa, Religion und Kultur der Romer, 1902, 469.

Hasta. A spear, lance. It was considered a visible sign of ownership lawfully acquired (signum iusti dominii) since “the Romans primarily considered theirs what they had taken from an enemy (Gaius, Inst. 4.16). Public auctions were performed sub hasta (see subhastatio). When the centumviral court held its sessions, a spear was set before it.— C.10.3. See LOCATIO SUB HASTA, PRAETOR HASTA-

R1US, CENTUMVIRI.

Hastati. See centurio.

Haustus. Syn. aquae haustus.—See servitus aquae HAUSTUS.

Hercisci (ercisci). See ACTIO FAMILIAE ERCISCUNDAE. Heredis institutio. The designation of a person in a testament who as the testator’s heir (heres), shall succeed as the owner of the whole estate (both cor­poreal things and rights). An heir may be instituted to a fraction of the inheritance and several heirs in­stituted in common without indication of their indi­vidual portions succeed in equal parts. The insti­tution of an heir must be expressed in a prescribed form (sollemni more) : “X shall be (my) heir” (“X heres esto”). The heredis institutio was the most important element of a testament. It had to be ex­pressed at the beginning of the testament (caput et fundamentum testamenti). No testamentary dispo­sition was valid if there was not a valid institution of an heir or if the heir did not accept the inheritance. In the later law the earlier rigid rules lost their strength. The requirement of solemn words was dropped. A testament with a not valid heredis insti­tutio was efficient as a codicil and all dispositions of the testator were thus sayed.—Inst. 2.14; D. 28.5 ; 7 ; C. 6.24; 25.—See codicilli.

Lend, Zur Gesch. dèr h.

Heredis institutio captatoria. See captatorius.

Heredis institutio ex re certa. The institution of an heir to a specific thing (not to a fraction of the es­tate). Originally it was not valid and made the whole testament void. But already in the time of Augustus the jurist Sabinus expressed the opinion that an heir thus instituted should be considered an heir to the whole estate as if the specific thing were not mentioned. This doctrine, dictated by the tend­ency to save other testamentary dispositions (legacies, manumissions), prevailed in later law (favor testa­menti).—See HERES.

Mancaleoni, StSas 2 (1902) ; Besclcr, St Riccobono 1 (1936) 294; M. David, Studicn zur h. i. ex re c., 1930; Sanfilippo, AnPal 17 (1937) 227; L. Cohen, TAmPhilolA 68 (1937) 343.

Heredis institutio excepta re. The institution of an heir to the whole estate or a fraction thereof with the exception of one specific thing.

Sciascia, Anais 1947-48 Pontif. Univ. Cat. de Sao Paulo (Brazil) 223.

Hereditarius. Pertinent to, connected with, an in­heritance. See ACTIONES HEREDITARIAE, IUS HERE­

DITARIUM, RES HEREDITARIAE, SEPULCRA HEREDI­TARIA, PARS HEREDITARIA.

Hereditas. Used on the one hand in the sense of the complex of goods, rights, and duties of the deceased (the estate as a whole), and on the other hand of the legal position of the heir (heres) who after the death of another enters (succedere) into his legal situation and legal relations (in universum ius, in locum de­functi). “Hereditas is nothing else than the succes­sion to the whole right (universum ius) which the deceased had” (D. 50.16.24). The fundamental dis­tinction is between hereditas testamentaria = an in­heritance of which the testator disposed by designat­ing (instituere) the person or persons (heres, heredes), who should inherit his property, in a valid testament, and hereditas legitima = an inheritance which is given to heirs indicated by the law because the deceased did not leave a testament or his testa­ment became later ineffective for specific reasons.

Baudry, DS 3; De Ruggiero, DE 3; Berger, OCD (s.v. inheritance); Rabel, ZSS 50 (1930) 295; Bonfante, Scritti 1 (1926), several articles; Bortolucci, BIDR 42 (1934) 150; 43 (1935) 128; Robbe, StCagl 25 (1937) ; La Pira, StSen 47 (1933) 243; Ambrosino, SDHI 10 (1944) 10; C. Sanfilippo, S'/ sulla hereditas I (1936) ; idem, Evolu­zione storica dell'h., Corso, 1946; Biondi, Istituti fonda­mentali 1 (1946) 24; B. Albanese, La successione heredi­taria, AnPal 20 (1949) 228; Ambrosino, SDHI 17 (1951) 195; Solazzi, lura 3 (1952) 21.

Hereditas damnosa. An estate in which the debts of the deceased exceed the value of the property he left. Hereditas fideicommissa (fideicommissaria). An in­heritance which in whole or in part was left to a person through a fideicommissum to be handed over by the heir instituted in a testament to the bene­ficiary (fideicommissarius), see fideicommissum hereditatis. Syn. hereditas fiduciaria.

Hereditas fiduciaria. See the foregoing item.

Hereditas iacens. Corporeal things belonging to an estate (res hereditariae) during the time before the heir entered upon the inheritance (aditio hereditatis). From the time of the death of the person whose inheritance is involved until its acquisition by the heir the hereditas “iacet” ( = lies). During this period the things to be inherited are considered to be res nullius (belonging to nobody). Taking away such things is not a theft (furtum) but a milder wrongdoing crimen expilatae hereditatis.—See usu­capio PRO HEREDE.

Manigk, RE 8, 644; Di Marzo, StScialoja 2 (1905) 51; Scaduto, AnPal 8 (1921) ; A. d’Amia, L'eredità giacente, 1937; B. Biondi, Istituti fondamentali di dir. ereditario, 2 (1948) 102; idem, lura 1 (1950) 150.

Hereditas legitima. (Or quae iure legitimo obvenit.) An inheritance which is conferred to an heir by the civil law (ius civile) in the case of intestacy.—Inst. 3.1; D. 38.6; 7; C. 6.58.—See hereditas, intes­tatus.

La Pira, La successione hereditaria intestata, 1930.

Hereditas suspecta. See heres suspectus. Hereditas testamentaria. An inheritance which an heir obtains according to the testament of the de­ceased.—D. 37.2.—See testamentum.

B. Biondi, La successione testamentaria, 1943. Hereditatis aditio. See aditio hereditatis. Hereditatis petitio. An action by which an heir (heres), either the testamentary one (heres testa­mentarius) or one succeeding at intestacy (heres legitimus, ab intestato), claims the delivery of the whole estate, a portion of it or a single thing on the grounds of his right of succession. The action lies against any one who, holding things belonging to an estate claims either that he himself is an heir (pro herede), or simply denies the plaintiff’s right of succession without giving any justification of his own possession (pro possessore). The hereditatis petitio is a kind of rei vindicatio based on a specific title of the plaintiff, i.e., the right of an heir. There­fore it is also termed vindicatio hereditatis. The rules concerning the restitution of res hereditariae are analogous to those of the rei vindicatio. See inter­dictum quem fundum. Special provisions were introduced by the Senatusconsultum luventianum which made an essential distinction between one who held the inheritance in good faith (bona fide) in the belief that he was the real heir, and one who knew that he had no rights of succession. A defendant sued under a rei vindicatio for the restitution of a single thing I>elonging to the estate might oppose an exception that the question of the plaintiff’s rights of succession be not prejudged in that trial (ne prae- iudicium hereditati fiat). The exception compelled the plaintiff to sue with hereditatis petitio if he wanted to base his claim on his quality as an heir.— D. 5.3; 4; C. 3.20; 31.—See senatusconsultum iuventianum, vindicatio familiae, possessor BONAE FIDEI.

Degni, NDI 9, 1114; Di Marzo, StSen 23 (1906). 25; Messina-Vitrano, BI DR 20 (1908) 220; A. Marrel, L’action en petition d^f her edite, Lausanne, 1915; Beseler, Beitrdge 4 (1920) 5; Biondi, AnPal 7 (1920) 242; Lenel, ZSS 46 (1920) 1; Denoyez, Fschr Koschaker 2 (1939) 304; G. Longo, La h. p., 1933; A. Carcaterra, AnBari 3 (1940) 35; Kaden, ZSS 62 (1942 ) 441.

Hereditatis petitio fideicommissaria. A �?hereditatis petitio granted to one who through a fideicommissum hereditatis obtained an estate or a fraction thereof. This hereditatis petitio was conceived of as an ex­tension (^hereditatis petitio utilis) of the normal hereditatis petitio which originally was available only to an heir inheriting under ius civile.—D. 5.6. —See fideicommissum hereditatis.

Hereditatis petitio possessoria. A hereditario petitio granted the bonorum possessor (an heir inheriting according to the praetorian law). It was a later creation (by Justinian?) when the two systems of universal succession were unified. In the classical law the praetorian heir had the interdictum quorum bonorum.—D. 5.5.

Hereditatis petitio utilis. See hereditatis petitio fideicommissaria.

Heredium. A plot of land, including a garden, of the size of two Roman acres (iugera), allotted, accord­ing to a legendary tradition by the founder of Rome, Romulus, to the citizens. It was inalienable and indivisible, being reserved for the heir (heredem sequi).

Humbert, DS 3; Sacchi, NDI 6; Nap, TR 1 (1919) 390; Lenel, Edictum perpetuum³ (1927) 180; Pohlmann, Gesch. der so rial en Frage 1928, 334; H. Levy-Bruhl, Nouvelles etudes sur le tres ancien droit romain, 1947, 37; Kamps, Archives d’histoire du droit oriental 3 (1948) 262.

Heres. An heir, he “who enters in the rights and the place of the deceased” (D. 29.2.37). “No one leaves to his heirs more rights than he had himself” (D. 50.17.120). All advantages and disadvantages (charges, commoda et incommoda) resulting from the legal relations of the deceased are transferred to the heir. Hence he is liable for debts and duties of the defunct except those which are strictly per­sonal and not transmissible to another person. Among the rights excluded from succession are, e.g., personal servitudes (usus, ususfructus). Possession (possessio) as a mere factual situation does not pass to the heir until he obtains physical holding of the things involved. Obligations originating from wrongdoings (obligationes ex delicto) are not bind­ing on the heir, but he must return what he gained from such acts (the enrichment). Some contractual relations (partnership, mandate) are extinguished by the death of one party.—Inst. 2.14; 19; D. 28.5; C. 4.17; 6.24.—See the following items, and heredis institutio, suys heres, suus et necessarius HERES. PRO HEREDE GESTIO, EXHEREDARE, NEMO PLUS

COMMODI, EXTRANEUS HERES, USUCAPIO PRO HEREDE, UNCIA.

Manigk, RE 9 (s.v. hereditarium ius) ; De Ruggiero, DE 3, 736; V. Korosec, Erbenhaftung, 1927; Wolff, St Ricco- bono 3 (1936) 460; Kamps, Archives d’histoire du droit oriental 3 (1948) 237; H. Lévy-Bruhl, Nouvelles etudes, 1947, 33 ; idem, RIDA 3 (= Mèi De Visscher 2, 1949) 137 ; Kaser, ADO-RIDA 1 (1952) 507.

Heres extraneus. See extraneus heres.

Heres fiduciarius. An heir, instituted in a testament, on whom the testator has imposed the duty to deliver the estate wholly or in part to a third person (fidei­commissum hereditatis, hereditas fideicom­missa).

Heres legitimus. An heir who succeeds according to the order of succession established by the civil law, ius civile (the Twelve Tables, a statute), in the case of intestacy. Ant. heres scriptus, testamentarius.— See HEREDITAS LEGITIMA.

Heres necessarius. A slave manumitted and insti­tuted as an heir in his master’s testament. He ac­quires the estate immediately together with liberty without any formal acceptance of the inheritance, and he is unable to reject it.—Inst. 2.19; C. 6.27.—See HERES SUUS ET NECESSARIUS.

Manigk, RE 4A, 672; Guarino, SDH I 10 (1944) 240.

Heres nuncupatus. See testamentum per nuncu­pationem.

Heres scriptus. An heir appointed in a written testa­ment. Ant. heres legitimus.

Heres secundus. See substitutio.

Heres suspectus. An heir who appears not to be able to pay the debts of the deceased. Hereditas suspecta = an inheritance overcharged with debts.—See satis­datio SUSPECTI HEREDIS.

Heres suus. An heir who at the death of a person was under his paternal power {patria potestas). This is a technical term to be distinguished from suus heres (= his heir) which refers to the heir of a specific person.—See Inst. 2.19; D. 38.16; C. 6.55.—See ADITIO HEREDITATIS, EXHEREDARE.

Manigk, RE 4A, 664; 8, 629; Cuq, DS 4 (s.v. suus) ; Solazzi, BIDR 39 (1931) 5; Kirk, ZSS 58 (1938) 161; Lepri, St Solazzi, 1948, 299; Vogel, ZSS 68 (1951) 490.

Heres suus et necessarius. A person under the pa­ternal power (or manus) of the deceased who after his death becomes sui iuris (head of a family). If appointed as an heir in a testament or succeeding at intestacy he has no power to refuse the inheritance and becomes heir at once after the testator’s death whether he wishes or not. Such heirs are sons, daughters, and the widow of the deceased ; grandsons and granddaughters are heredes sui only in the event that their father is dead or no longer under the pa­ternal power of the deceased. The praetorian law granted the heredes sui et necessarii the right to refuse the acceptance of an insolvent inheritance (ius abstinendi).—See heres suus.—Inst. 2.19.

Manigk, RE 4A, 672.

Heres voluntarius. An heir who is neither heres suus nor heres suus et necessarius. He acquires the inheritance only through voluntary acceptance (see aditio hereditatis).—See the foregoing items.

Hermaphroditus. Considered under the law to be of the sex which prevailed.

Hermogenianus. A Roman jurist of the late third century or the early fourth century after Christ. He is the author of a collection of excerpts (Iuris epi­tomae) in six books. His identity with the author of the Codex Hermogenianus cannot be established.

Brassloff, RE 8; Riccobono, ZSS 43 (1922) 327; Prings- heim, Symbolae Friburgenses Lenel, 1931, 31; Felgen­träger, ibid. 365 (Bibl.).

Hermogenianus Codex. See codex hermogenianus. Hippocentaurus. A fabulous creature, half man half horse. Hippocentaurum dare is given as an example of an obligation which cannot be fulfilled because of the involvement of a thing which does not exist.— See IMPOSSIBILIUM NULLA OBLIGATIO.

Histrio. See SCAENICUS.

Hoc est. See ID EST.

Hodie. Today, nowadays. Some Justinian’s innova­tions are referred to in his Institutes by hodie as well as in the Digest certain new legal rules are opposed to earlier ones through this word. Although the word appears in interpolated texts, it is not a reliable criterion of an interpolation.

E. Albertario, Hodie, 1911; Beseler, Beiträge 2 (1911) 97; Berger, KrV j 16 (1914) 427; Guarneri-Citati, Indice⁹ (1927) 43 (Bibl.).

Holographus. Written in full in one’s own hand (e.g., a testament).

Homicida. A killer, manslayer.—See homicidium.

Homicidium. An assassination, manslaughter. The term is of later origin; it appears twice in Cicero, but is rare in the writings of the classical jurists, although frequent in imperial constitutions. For earlier terminology, see parricidium. The perti­nent verbs are necare, interficere, occidere. After a period of self-vengeance, homicide in historical times became a crimen publicum (quaestores parricidii). Under specific circumstances killing a person is justi­fied, as, e.g., in the case of self-defense against a thief during the night (fur nocturnus) or when a daughter and her accomplice have been caught in the very act of adultery. A person killed in such situations is considered iure caesus (=■ justly killed). The Twelve Tables inflicted the death penalty on a murderer of a free person. The Lex Cornelia de sicariis (by Sulla)—still in force under Justinian with various changes introduced by the imperial legislation—es­tablished the rules applicable to different kinds of murder, either fully executed or only attempted. There existed a principle of dolus pro facto accipitur (= malice, evil intention is considered as if the fact had been done, D. 48.8.7 pr.) ; see conatus. Partici­pation in armed bands of murderers was punished as

488

well as instigation of, or assistance in, the commission of the crime. Penalties for murder were differen­tiated according to the gravity of the crime under the Republic; under the Empire the social status of the culprit influenced the severity of the penalty, even in the death penalty distinctions being made (cruci­fixion, condemnation ad bestias, decapitation, burn­ing = crematio). Not punished was the killing of a person exempt from the law (see interdicere aqua et igni sacer). A master who killed his slave re­mained unpunished until Hadrian ordered that such a crime had to be treated as homicidium. Killing another’s slave created civil responsibility only for damages done to his master; similarly a murder com­mitted by a slave involved responsibility of his master for damages from which he was released by delivering the culprit to the family of the person killed (in noxam d cd ere, see noxa). Accidental killing of a person was sued for by a private action for damages, an actio utilis, modeled on the actio legis Aquiliae.— D. 48.8; C. 9.16.—See parricidium, sicarius, adul- TERIUM, IUS VITAE NECISQUE, LEX P0MPEIA DE PAR- RICIDI0, SACER, TRANSFUGA.

Pfaff, RE 8; Brunnenmeister, Das Tötungsverbrechen im röm. Recht, 1887.

Homo. A human being. “All human beings are either free or slaves” (D. 1.5.3). The word “homo (=man) includes both males and females” (D. 50.16.152). Very often homo is syn. with servus (a male slave).—Homines collectively denotes the subordinates of a high dignitary or the officials in the imperial household.

Angelis, DE 3.

Homo alieni iuris (sui iuris). See alieni iuris esse. Homo integrae frontis. A blameless, honest person.

The origin of the expression goes back to the custom of branding the forehead of a convicted calumniator ( = slanderer) with the letter K.—See calumnia.

Homo liber. A free man.—See interdictum de H0MINE LIBERO EXHIBENDO, LIBER HOMO BONA FIDE SERVIENS, PLAGIUM.

Homo novus. A newcomer, who did not belong to the older aristocracy of birth and office (nobiles) but, despite the lack of a noble origin entered into the highest social class by obtaining a curule magistracy. The homines novi owed their official career to ac­knowledgment of their personal ability and proficiency (per se cogniti).

Strasburger, RE 17, 1223; MacDonald, OCD (s.v. novus h.) ; J. Vogt, H. n., ein Typus der röm. Republik, 1926; Schur, Bonner Jahrbücher 134 (1929 ) 54.

Honesta missio. See missio honesta.

Honestas. Respectability, an honorable reputation, an honest moral conduct.—See existimatio.

Honestiores. See HUMILIORES.

Honestus. Honest, respectable, decent. “Not all that is permitted is honest” (D. 50.17.144 pr.).

F. Klose, Die Bedeutung von honor und h., Diss. Breslau, 1933; Carrelli, AnBari 2 (1939) 61; v. Lübtow, ZSS 66 (1948) 543; A. Carcaterra, lustitia nelle fonti, Bari, 1949, 98.

Honor (honos). The dignity and privileges attached to the power of a magistrate, both in Rome and municipalities; hence also the reverence, considera­tion due to him (honorem debere, tribuere). Honor is frequently syn. with magistratus. When both terms occur together, magistratus refers to the power and its exercise, whereas honor covers the dignity, rank and privileges connected with a magistracy. Honor was extended later to any honorific position occupied by a person in a municipality. Honor denotes also a gift left in a testament to a person as a sign of respect and reverence. Finally honor is used in the meaning of an honorarium paid for services rendered (remunerandi gratia).—D. 50.4; C. 10.41.—See cur­sus HONORUM, DEBITOR CIVITATIS.

Campanile, DE 3.

Honor matrimonii (maritalis). See concubinatus.

R. Orestano, Struttura giuridica del matrimonio rom., 1952, 314.

Honorarii. Persons who (in the later Empire) were given the title of a high official but who actually did not perform any official duties. They did not re­ceive the distinction accorded to active officials (see CINGULUM). See VACANTES, ILLUSTRIS.

Kiibler, RE 7A (j.z/. vacantes).

Honorarium. A gift, an honorarium paid (under the Principate) to persons exercising liberal professions (lawyers, teachers, physicians, architects, etc.). For physical labor a merces was paid, honorarium indi­cated the compensation for higher, intellectual serv­ices. See advocati. The payment of an honorarium could be enforced through extraordinary proceedings (cognitio extra ordinem) in which gradually the principle was recognized that such kind of profes­sional services should be recompensed. Honorarium ( = summa honoraria) was also called the sum which municipal officials and senators in the Empire had to pay as a contribution to help defray the expenses of mounting public games.—See honoraria summa, SPORTULAE, CONSUETUDO FORI, SENATUSCONSULTUM CLAUDIANUM.

Kiibler, RE 4A, 896; Klingmiiller, RE 8; Cagnat, DS 3, 236.239; De Villa, NDI 6.

Honorarius. (Adj.) Based on, or originating from, the ius honorarium (praetorium), e.g., actio, obli­gatio, successor. Ant. civilis (based on the ius civile) or legitimus (based on a statute).

Honorati. In the later Empire, persons who occupy an honorific position, civil or military, in Rome or a municipality. They remain honorati even after leav­ing office and as such enjoy certain personal privi­leges.—C. 11.20.

Honoratus. In the law of succession, a person “hon­ored” by a legacy in a testament. See honor. Syn. legatarius. Ant. oneratus = an heir appointed in a testament and charged with the payment of a lega­tum or fideicommissum to the beneficiary.

Honos. See HONOR.

Hordearium (hordiarium) aes. See aes hordearium. Horrea. Storehouses, silos. Horrea privata = store­houses owned by private individuals and leased to private persons through locatio conductio rei. Leges horreorum = rules concerning the deposit of mer­chandise in storehouses. Horrea publica = large silos maintained by the government for the preserva­tion of food (corn, oil, wine) for public use and dis­tribution. They served also for the storage of food against emergency. The horrea publica were under the supervision of the praefectus annonae. Special horrea were provided for the needs of the army.— C. 10.26. See HORREARIUS.

Fiechter, RE 8; Rostowzew, DE 3, 594; Romanelli, DE 3, 981; Thedenat, DS 3, 268; V. Scialoja, 57 giur. 1 (1933) 289.

Horrearius. The lessee of a storehouse leased from the owner (dominus horrei) for warehousing, i.e., the renting out of storage space to customers. Nor­mally the horrearius assumed responsibility for the custody (custodia) of the things deposited, but he might publicly announce through a poster (proposi­tum) the limits of the risk he assumed. The con­tractual relation between the horrearius and his cus­tomers is a lease of services (locatio conductio operarum), that between the horrearius and the owner a lease of a store (locatio conductio rei).—See HORREA.

Carrelli, RBSG 6 (1931) 608; Vazny, AnPal 12 (1929) 131.

Hospes. A guest in another’s house. Ant. habitator = the tenant of a dwelling. See habitatio. Only the latter is responsible for damages done to third persons through things thrown or poured out from the abode by anybody.—See actio de deiectis.

Hospites. Soldiers quartered on a private individual. Hospites recipere = to billet soldiers. Syn. hospi­tium praebere.

Cagnat, DS 3 (s.v. hospitium militare).

Hospitium. Hospitality granted by Rome to another nation in an international treaty. It comprised the right to sojourn in Rome, to conclude legal trans­actions with Roman citizens (ius commercii) and protection before Roman courts.—See tessera hos­pitalis.

Leonhard, RE 8; Anon., NDI 6; Marchetti, DE 3; Lecri- vain, DS 3; C. Phillipson, International Law and Customs 1 (1911) 217; Galkt, RHD 16 (1937) 265; Frezza, SDHI 4 (1938) 398.

Hospitium militare. See hospites.

Hostia. A sacrificial animal. The seller of a hostia had a privileged right of execution (legis actio per pignoris capionem) against a buyer who failed to pay the price.

H. Meyer, RE 8; Krause, RE Suppl. 5.

Hostis. In ancient language (Twelve Tables) this was syn. with peregrinus = a stranger. Later hostis = the enemy with whom Rome was at war. “Hostes are those against whom we (the Roman people) have publicly declared war or those who have done so against us” (D. 50.16.118). The earlier term for an enemy was perduellis. Hostis also was used of an individual, citizen or stranger, who was declared to be an enemy of the state by a statute or by the senate. He might be killed on Roman territory by any citizen with full impunity.—See occupatio rerum hosti­lium.

Cuq, DS 3; Vaglieri, DE 3; F. Vittinghoff, Der Staats­feind in der röm. Kaiserzeit, 1936; O’Brien-Moore, RE Suppi. 6, 759.

Huiusmodi. See eiusmodi.

Humanitas. The humane tendency as an ethical com­mandment, benevolent consideration for others. The term as well as the adjective humanus (humanior) appears both in juristic texts and imperial constitu­tions. The idea of humanity undoubtedly exercised a considerable influence on the development of the Roman law through interpretation and decisions of the jurists. In the Christian Empire its influence infiltrated various provinces of the law (family, mar­riage, succession, slavery, penal legislation). It is undeniable that many a decision introduced by phrases like sed humanius est or similar, is not of classical origin; on the other hand, however, it is not correct to ascribe every passage where the expression hu­manitas occurs and every decision based on humani­tarian principles to postclassical (Christian) times or to Justinian. Humanitas and humanus cannot be com­pletely eliminated from the juristic language and thinking. What appeared good (humane) to Cicero, could not appear contemptible to the jurists. The tendency to stigmatize the terms as scrupulously avoided by the jurists is an exaggeration similar to that one which condemns the expressions benignitas, benignus, and the like.—See intuitu.

Heinemann, RE Suppl. 5; H. Krüger, ZSS 19 (1898) 6; Wolff, ZSS 53 (1933) 328; Harder, Hermes, 69 (1934) 64; Schulz, Principles of R. Law, 1936, 189; idem, History of R. Legal Science, 1946, 297; S. Riccobono, Lineamenti della storia delle fonti, 1949, 297; Maschi, H. come motivo giuridico, AnTr 18 (1949) ; idem, Ius, n. ser. 1 (1950) 266; S. Riccobono, Jr., Il Circolo giuridico (Palermo), 1950 (Bibl.); Berger, ACIPer 2 (1951) 194 (= Sem 9, 1951, 41).

Humanitas imperatoria (imperatoris). The later emperors liked to speak of themselves as “humanitas nostra." On the other hand, merciful acts of the emperors, particularly in criminal matters, are denoted as humanitas.

Humanus. See humanitas. For decisions based on humanitas different phrases are used, e.g., humanum, humanius, humanissimum est, humanius interpretari, humana (humanior) sententia.

Humiliores. Lower classes of the Roman society. Syn. tenuiores, humiliore loco nati, plebeii. Ant. honestiores = citizens of the higher social classes distinguished by their official position, wealth or origin (in aliqua dignitate positi, honestiore loco positi, nati). The distinction between humiliores and honestiores had particular importance in the field of criminal law and procedure. Some kinds of punish­ment (capital punishment by crucifixion, by being thrown to wild beasts, torture, bodily punishment) were applicable only to humiliores. In certain cases where the humiliores were punished by death, the honestiores were merely sent into exile. In cases in which relegatio was applied to honestiores, hu­miliores were subject to deportatio.—See potenti- ORES, ALTIORES.

Jullian, DS 3; Brasìello, NDI 6; Berger, OCD (s.v. honestiores) ; Mitteis, Mèi Girard 2 (1912) ; De Robertis, RISG 14 (1939) 65; E. Stein, Gcsch. des spdt-rom. Reiches 1 (1928) 44; Cardasela, RHD 28 (1950) 305, 461.

Hyperocha. The surplus over the amount of a debt which a creditor obtained from the sale of the debtor’s pledge (superfluum pretii, superfluum pignorum). The creditor is obliged to restore such surplus to the debtor. The term hyperocha (of Greek origin) appears only once in the Digest. Ant. residuum.

Manigk, SDH I 5 (1939) 228.

Hypotheca. A form of real security. The thing pledged as a hypotheca was not handed over to the creditor, but remained with the debtor who might use it but could not alienate it. The Greek-termed in­stitution originated in agreements under which ten­ants of dwellings or lessees of land hypothecated all the things they brought in (invecta, illata, importata, introducta) as security for the rent to be paid under the terms of the lease. The lessor could obtain pos­session of the things hypothecated through an interdict in the case of non-payment of the rent due (see interdictum salvianum) ; later the praetor granted a special action, actio Serviana, for the same pur­pose; under this action the lessor could claim pos­session of the things hypothecated, even when they were held by a third person and not by the lessee himself. In a further development the actio Serviana was extended to other cases of hypothecation (actio quasi Serviana, called also actio hypothecaria and pigneraticia in rem) when the thing pledged had re­mained in the possession of the debtor. In Justinian’s law manifold changes were introduced in order to unify the different forms of pledge and the terms pignus and hypotheca became synonymous.—D. 20.1 ; 3; 6; C. 8.13-35.—See pignus.

Manigk, RE 9; 20, 1243; Cuq, DS 3 ; De Sarlo, NDI 6 (s.v. ipoteca) ; Herzen, NRH 22, 23 (1898, 1899) ; A. F. Sorrentino, L’ipoteca delle servitù, 1904; T. C. Jackson, Justinian’s Digest, Book 20, 1908; Erman, Mel Girard 1 (1912) ; F. Ebrard, Digestenfragmente ad formulam hypo­thecariam, 1917 ; D. F. Vasilesco, Successio hypothecaria, Paris, 1931; Solazzi, SDHI 5 (1939) 228; Rabel, Sem 1 (1943) 44; Kreller, ZSS 64 (1944) 306.

Hypotheca generalis. An expression used by Jus­tinian for the hypothecation of the whole property of the debtor.—See the following item.

Hypotheca omnium bonorum. An hypothecation em­bracing the whole property of a debtor at the time of the agreement (res praesentes); it could even cover things later acquired by the debtor (res juturae) if they were included in the hypothecary agreement. Justinian ordered that such things were automatically included in the hypothecation unless they were ex­pressly excluded. Such general hypothecs were first introduced as a security for the fisc for its contrac­tual claims and taxes. Later law granted a ward a general hypothec over the property of his guardian or curator for claims resulting from the administra­tion of the ward’s property/ Claims connected with the restitution of a dowry also enjoyed this privilege under the law. No agreement of the parties was necessary (hypotheca tacita).

Hypotheca tacita. A general hypothec over the debt­or’s property in postclassical and Justinian’s law. It is called tacita because an hypothecary agreement of the parties was not necessary since the hypotheca was established by the law.—D. 20.2; C. 8.14.—See the foregoing item, pignus tacitum.

Hypothecaria actio. See hypotheca, pignus.