The Ancient Library

Scanned text contains errors.

On this page: Praescriptiq



1-1, 17 ; Sueton. Claud, c. 9 ; Val. Max. viii. 12), at least so far as they were sureties to the State. But praediator is denned by Gaius (ii. 61) to be one " who buys from the people," and from the context it is clear that it is one who buys a Prae- dium, which is further defined to be a thing pledged to the populus " res obligata populo." The Prae­ diator then is he who buys a Ppa«dium3 that is, a thing given to the populus as a security by a Praes ; and the whole law relating to such matters was called Jus PraediatorLum. [0. L.]

PRAESCRIPTIQ. o? rather TEMPORIS PRAESCRIPTIO, signifies the Ex,ce.ptio or an­swer which, a defendant has to the demand of a plaintiff, founded on the of the lapse of time. The word has properly no reference to the plaintiff's loss of right, but to the defendant's acquisition of a right by which he excludes the plaintiff from prosecuting his suit. This right of a defendant did not exist in the old Roman law. When the Praetors gave new actions by their Edict, they attached to them the condition that those actions must be brought within a year (intra annum jiidicium dabo\ that is % year from the time when the right of action, accrued. These actions then, were exceptions from the old rule, that all actiones were perpetuae. This pule became ex­tended by the Longi teniporis praescriptio, which established that in actions about ownership, or jura in re, ten, or in some cases twenty years, would give a praescriptio, when the Possessor could show that he had complied with the main conditions of Usucapion, without having- acquired ownership by Usucapion, for if he. had, he had no need of any Exceptio. This rule was further extended by Constantine, and a period of 30 or 40 years, for it seems that the time was not quite settled, was to be considered as sufficient for a praescriptio, though the defendant had not complied with the conditions of Usucapion. A general constitution was made by Theodosius, a. d. 424, which with some variations appears in both the Codes (Cod. Theod. 4. tit. 14 ; Cod. 7. tit. 39. s. 3) ; and it enacted that, as in the case of the actiones already mentioned, there should be no hereditatis petitio after 30 years, and that after the same time no personal action should be brought. The actio finium regundorum was excepted, and also the action of a creditor for his pignus or hypo-theca against the debtor, but not against others. Praejudiciales actiones as to Status are not enume­rated among those against which there was a Praescriptio, but they seem to be included in the general words of the law. Justinian, by a con­stitution of the year 530 (Cod. 7. tit. 40. s. 1), established the general rule of 30 years for all actions, with the exception of the actio hypothecaria, for which he required 40 years. His constitution enumerates the following actions to which the praescriptio of 30 years would apply : FamiHae herciscundae, Communidividundo, Finiumregundo­rum, Pro Socio, Furti et Vi Bonorum Raptorum ; and it adds, "neque alterius cujuscunque perso-nalis actio vitam longiorem esse triginta annis, &c., Red ex quo ab initio competit, et semel nata est, &c., post memoratum tempus finm." It thus ap­pears that all actions were originally perpetuae, that is, the right of action continued without any interruption from the lapse of time ; then some were made subject to Praescriptio, and finally all were made so. In consequence of this change the


term Perpetuae, originally applied to actions that were not subject to praescriptio, was used to signify an actio in which 30 years were necessary to give a Praescriptio, as opposed to actiones in which the right to a Praescriptio accrued in a shorter time. (Inst. 4. tit. 12.)

The conditions necessary to establish a Prae­scriptio were, 1. Actio Nata, for there must be a right of action in order that a praescriptio may have an origin, and the date of its origin must be fixed by the date of the right of action. 2. There must be a continuous neglect on the part of the person entitled to bring the action, in order that the time of the Praescriptio may be reckoned uninterruptedly. 3. JBona fides was not a neces­sary ingredient in a Praescriptio, as such, because it was the neglect of the plaintiff which laid the foundation of the Praescriptio. But the longi tern-poris praescriptio was made like to Usucapion as to its conditions,, of which bona fides was one. Justinian (Cod. 7. tit. 39. s. ft) required a bona fides in the case of a thirty year Praescriptio, but this was no new rule except so far as the Pos­sessor claimed the benefit of Usucapio ; and as the longi temporis praescriptio, as an independent rule of law, disappeared from the legislation of Justinian, the bona fides as a condition of praescriptio went with it. 4, The lapse of time, which was 30 years ; but to this there were many exceptions.

The sources on the subject of Praescriptio are referred to in Brinkmann's Instituiiones Juris Romani, and Miihlenbruch's Doctrina Pandccta-rum, § 261, and § 481, on the distinction being ultimately abolished between Praescriptio and Usucapio ; Savigny, System des Iteutigen Horn, RechtS) vol. v., from whom this outline is taken. See also usucapio.

Praescriptio had a special sense in Roman plead­ings, which Gaius has explained as existing in his time (iv. 130). These Praescriptiones were pro actoree and not pro reo ; and an example will ex­plain the term. It often happens that an obligatio is such that a man is bound to another to do cer­tain acts at certain times, as for instance, yearly, half yearly, or monthly. The payment of interest on money would be an example. At the close of any of these certain periods, the party to whom the obligatio was due, might sue for what was due, but not for what was not due, though an ob­ligatio was contracted as to future time. When a debt had become due in consequence of an obligatio, there was said to be a Praestatio, or it was said, "aliquid jam praestari oportet: " when the obligatio existed, but the Praestatio was not due, it was "futura praestatio," or it was said, " praestatio ad hue null a est." If then the plaintiff wished to limit his demand to what was due, it was necessary to use the following Praescriptio: " Ea res agatur cujus rei dies fuit." (Compare Cic. de Or. i. 37.) The name of Praescriptiones, ob­serves Gaius, is manifestly derived from the cir­cumstance of their being prefixed (praescribuntur) to the formulae, that is, they came before the Iri-tentio. In the time of Gaius the Praescriptiones were only used by the actor ; but formerly they were used also in favour of a defendant (reus), as in the following instance : " Ea res agatur quod praejudicium hereditati ncn fiat," which in the time of Gaius was turned into a kind of exceptio or answer, when the petitcr hereditatis, by using a different kind of actio, was prejudging the ques*

About | First | English Index | Classified Index | Latin Index | Greek Index



page #  
Search this site
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of