Law and the science of law, despite evolving rapidly, represent constants in the life of society, and this is because law, as a system and as a science, is “called” to answer to all of the questions born in society. Appearing together with the state, the purpose of law has been to maintain order and balance in society and to restore this balance whenever it is disturbed. This is possible because of the legal experience that has led to the consolidation of some mechanisms able to adapt in order to preserve justice and equity in society.
This legal experience has its origin in the legal system conceived by ancient states, whose principles still govern the Romanian legal system. Given the complexity of the legal ideas created by the Romans and the mechanisms they used, we can affirm, without a trace of doubt, that the legacy left by the Romans is and will remain the foundation of Romanian private law. For this reason, from the first year of legal studies, any law student encounters the subject of Roman law.
So, what do we learn in Roman law in college? In a concise expression, Roman private law can be studied under three fundamental aspects, namely the matter of persons, the matter of goods and the matter of actions.
The law of persons (ius personarum)
In Roman law, the summa divisio classification of persons consists of two categories: natural persons and legal persons.
Thus, citizenship could be acquired by birth or by naturalization. Regarding legal persons, they are perceived as collectives having their own assets, acquiring rights and assuming obligations distinct from their members.
The matter of persons left a significant legacy on matters related to kinship and, implicitly, on successions. Although they initially regarded the will with reluctance, the Romans developed a particularly complex system of ab intestat succession and testamentary succession, offering later legal systems one of the most important legal institutions in the matter of successions, namely the forced heirship or quarta falcidia. Starting from the unlimited right to make a testament (testamenti factio activa) and, more importantly, from its use to the detriment of the heirs when the pater familias alienated his wealth to other people through testamentary bequests, the Roman state limited this capacity through numerous laws. Thus, Roman legal system created what today we call forced heirship (quarta falcidia), reaffirming the rights of heirs. Moreover, in support of the affirmation of the Roman origin of Romanian private law, the principle “infans conceptus pro nato habetur, quotiens de commodis ejus agitur” should be mentioned, which expresses the right to inheritance of the unborn child, from the moment of conception, under the condition that they are born alive.
Perhaps the most important aspect of the Roman legal legacy is the Roman perspective on the imperativeness of analyzing legal intent. Any operation that individuals would like to perform by convention or unilateral acts is governed by determining their real will. Consequently, the Romans distinguished, as our legal system does, on the will to donate (animus donandi), the intention to possess (animus possidendi), the will to manage the affairs of another without a mandate (animus negotia aliena gerendi).
The law of goods (ius rerum)
The matter of goods, as it was found in the Roman conception of law, has provided our legal system with particularly important aspects that concern:
- classification of goods in:
- Tangible assets (res corporales) and intangible assets (res incorporales);
- Movables (res mobiles) and immovables (res soli);
- Generic goods (genera) and individually determined goods (species).
- possession of the goods with the three legal titles:
- possession: the only factual state protected by law, of the one who possesses an asset for themselves, as an owner;
- detention: of the one who possesses an asset for the owner and not for themselves;
- property: the only complete right, which encompasses the right to use (ius utendi), the right to collect the fruits (ius fruendi) and the disposition (ius abutendi).
The law of actions (ius actionum)
In relation to the matter of actions or, more precisely, to the Roman civil procedure, the Roman law has created numerous actions for the realisation of the rights or legitimate interests of the individuals, also used in the contemporary judicial practice.
Among others, a few examples include the actio pauliana, through which creditors can obtain the revocation of the acts by which their debtor had fraudulently impoverished their assets and the actio de in rem verso, more precisely the action based on unjust enrichment, which allows the restoration of the patrimonial balance when a person has enriched themselves, without right, at the expense of another person, and their enrichment and the impoverishment of the other spring from the same cause.
To answer, therefore, more precisely, the question of what we learn in Roman law at university, it can be said that Roman law provides the law student and the practitioner both the theoretical and practical experience of centuries of legal thought, as well as a solid foundation in training theoretical, through the comparative study of legal institutions from the origin to the present, in relation to the evolution of society.
Legal Intern R&R Partners Bucharest
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