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Beyond DogmaticsLaw and Society in the Roman World$
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John W. Cairns and Paul J. du Plessis

Print publication date: 2007

Print ISBN-13: 9780748627936

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748627936.001.0001

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Suing the Paterfamilias: Theory and Practice

Suing the Paterfamilias: Theory and Practice

(p.173) 9 Suing the Paterfamilias: Theory and Practice
Beyond Dogmatics

D Johnston

Edinburgh University Press

This chapter discusses two remedies in Roman law in relation to slaves and their legal capacity to contract and hold property — peculium and actio exercitoria. Three conclusions are presented. First, it is too simple to suppose that the motor for development of the law was either legal doctrine or principle alone or social or economic utility. The picture is more complicated. It does not seem unfair nonetheless to characterise the extension of remedies against the paterfamilias on account of his slave's or son's dealing as cautious. But there was a lot at stake. Second, within this area of economic life there was a range of possible remedies, and a degree of overlap between them. Third there is a range of possible remedies, each with its own advantages and disadvantage. This is quite typical in Roman law: one thinks of the possibilities for suing objectionable neighbours by means of the actio legis Aquiliae, interdict quod vi aut clam, damnum infectum, operis novi nuntiatio, or actio aquae pluviae arcendae. Those remedies, like the ones discussed here, have their different attractions for different factual situations.

Keywords:   Roman law, slaves, property ownership, peculium, actio exercitoria, remedies

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