New Perspectives in the Roman Law of Property: Essays for Barry Nicholas

By Peter Goodwin Birks | Go to book overview

5
Illegal Alienations in Classical Roman Law

JEROEN M. J. CHORUS


I

A constitution of Caracalla from AD 215 gives us this case: 'Cum te propter turpem causam contra disciplinam temporum meorum domum adversariae dedisse profitearis, frustra eam restitui tibi desideras, cum in pari causa possessoris melior condicio habeatur.' (You allege -- so the Emperor writes to one Longinus-that you conveyed a house on the basis of an immoral cause, in breach of the standards of my times, to the woman whom you are now suing; in vain therefore do you desire to have it restored to you, since where the guilt is common to both parties the possessor's position is held to be the stronger).1 Caracalla's time, of course, is also the time of the great jurists of the later classical period of Roman law, Papinian, Ulpian, and Paul. The immorality, conflicting with the standards of that time, was evidently disclosed in Longinus' statements. Apparently it tainted both sides, in the sense that both Longinus and the woman could be considered guilty, for the text expressly puts them in pari causa. We are not told the nature of the immorality. It may for instance have consisted in the fact that they had agreed that the woman would not marry and would be given the house in consideration for not doing so.

The text is an excellent starting-point for an inquiry into the effect in rem of illegality. It can be read as denying Longinus the condictio. That is how, for example, Kaser and Honsell2 read it. Such must also have been the view of Justinian's compilers since they embodied it in title 4.7 of the Codex, De condictione ob turpem causam. So far as concerns the proprietary effects of illegality, that idea presupposes that ownership in the house passed from Longinus to the woman under the transaction, notwithstanding its illegal character, its being contrary to good morals. We must assume therefore that Longinus, in order to transfer ownership, had made use of a formal mode of

© Jeroen M. J. Chorus 1989

____________________
1
C. 4.7.2. See also my paper in: Tombola J. Th. de Smidt ( Leiden, 1988), 1-14.
2
M. Kaser, Das römische Privatrecht i ( 2nd edn., Munich, 1971), 598 n. 48 (hereafter RPR); P. Jörs and W. Kunkel, Römisches Recht, 4th edn. by H. Honsell, Th. Mayer-Maly and W. Selb ( Berlin, 1987), 355 n. 28 (hereafter Kunkel-Honsell/Mayer-Maly/Selb).

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