Roman Law: Testamentary Concepts, Contracts, and Obligations
The Testamentary Concept and Characteristics
Historically, Roman wills underwent an evolution parallel to that of the family. Originally, a will was only a means of naming a successor, but later, other provisions were added.
A will can be defined as a unilateral declaration of will, solemnly made before witnesses, revocable, which provides both for inheritance and, essentially, the institution of an heir. Its legal effects are linked to the solemn manifestation of the will before witnesses and presented some fundamental characteristics:
- Iuris civilis is an act that only Roman citizens may have and will be included in.
- It is a personal act; the will must be manifested by the testator and not by any intermediary.
- It is a formal act.
- It is a unilateral act.
- It is an act mortis causa, acquiring legal consistency only upon the death of the disponer.
- It is a revocable act. The disponer can freely and unlimitedly change, alter, or destroy the precedent will.
- It can endorse or legitimize a status: appointment of a tutor, for example.
The Mandatum Contract
Concept
The term mandatum refers to a consensual, bilateral imperfect, and good faith contract by which a person, called the trustee, is obliged to make free or order management on behalf of another, called the principal.
It is consensual; it is perfected by mere consent, which may be express or implied.
It is bilateral imperfect, as it always gives rise to obligations for one party, the president, and only incidentally for the other.
It is in good faith because it arises from relations of friendship and trust, and action to protect it is in good faith.
It is essentially free and based on friendship. If a fee is agreed upon, it cannot be required by form but by the procedure extra ordinem procedure.
Personal Elements
They are the principal, who is the person responsible for management, and the agent, who commits to doing it.
Real Elements
The real element of the mandate is the management or order to be enforced. Such management can encompass a wide variety of matters, such as making a legal transaction (e.g., a sale) or material management (e.g., care of a farm). However, the activity must be lawful. Also, management should be in the interest of the client or a third party and even the joint interest of the client and the agent.
Effects: Obligations
- The president has the obligation to complete the program adopted voluntarily, without being permitted to deviate from the instructions. Their liability is limited to fraud (direct representation imperative mandate).
- The principal is obliged to compensate for expenses that the agent incurred during management, as well as to compensate for any damage that could occasionally occur in the execution of the commission.
Actions
There are two: actio mandati directa in favor of the client and actio mandati contraria for the president.
Grounds for Termination of Mandate
- Compliance with the order or the inability to reach it.
- By the arrival of the set term.
- By the will of the parties in accordance.
- On revocation by the principal, but only with effects from the time the president knows it.
- On the resignation of the president, although responsible for damages that occur when the client makes it unexpectedly and without reason.
- Upon the death of either party.
Obligations of Solidarity: Origin, Termination, and Effects
Bonds of Solidarity: those in which each of the borrowers owes and/or each creditor is entitled to the full benefit. The payment by a debtor or the receipt by a creditor extinguishes the delivery and payment of other debtors.
Effects
The effects are:
- No action back. If a debtor pays, they cannot ask other borrowers to pay them, with exceptions:
- In classical times, there was a return action so that the debtor who had paid could claim from the other the share that was necessary. This was due to the existence of an internal relationship between them: if they had a society, they could be claimed by the actio pro socio, or if there was more than one debtor, and they were commoners, they were given the actio communi dividundo.
- In Justinian’s time, the action was given back to a general nature.
The Special Deposit and Deposit Figures
It is a real contract, bilateral imperfect, free, by which a person named depositor entrusts another, called a depository, with a movable, so that the depository stores, keeps, and returns it at the request of the depositor.
Special Deposit Figures
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Necessary deposit or miserable is one made for reasons of riot, fire, wreck, shipwreck, etc.. In such circumstances, and given that the depositor could not freely choose the depositary, if not fulfilled its obligation to reimburse the depositor by actio depositi could get twice the value
Sequestration is the deposit in which several people, usually contending in a lawsuit, they trust the thing at issue to a third party occurs when these subjects (which are locked in a lawsuit or from which there is a conflict of interest) trust the matter in dispute to a third party who undertakes to refund it to whoever is winning at trial or as a pre-set by the parties. The secuestratario, unlike the depositary and are protected by injunction. To achieve the return of the thing, you could exercise the actio depositi sequestrataria. (Sequester) an obligation to restore the thing to the winner of the
The tank irregular deposit of fungible things in which the depositary is obliged to return, not the same things, but as much of the same gender. Their object is usually in sums of money deposited by individuals in a bank, which agreed to repay it with interest