The Influence of Economic and Social Aspects in the Roman Procedural Law: The Protection of the Goods and Their Value

Introduction

As Giménez says, “in the texts of Economic History there is no concrete description of the economic operations carried out in antiquity.” Specifically, in her work2, she tries to “… reconstruct the map of the system of economic circulation in Rome, that is, how operations were carried out and how they evolved”.

In order to carry out this work, the aspects treated are of diverse nature3: a) legal, b) social and c) commercial. Within legal aspects, most of the content of both accounting issues, the protection of property and its various aspects can be found in the Digest. As for the social aspects and their relationship with accounting aspects4, following again Giménez, it can be said that there is no doubt that “… the appearance of new figures follows a principle: speeding up the economic circulation (…). As systems evolve, new and less tangible elements, such as rights-obligations, assets and liabilities, are added to the circulation 5…”, in this way, the permutatio, sponsio, etc., will develope towards other more agile modalities, although perhaps also complex as the sale6 or the fideiussio or fidepromissio and that will propitiate a boom in the protagonism and role that will play the money in cash (pecunia numerata) and the consequent banking activity.

The commercial aspects, based on the aforementioned, are configured in Rome even within the civil law7 but with an unstoppable evolution toward a new way of understanding of the property right over the goods, by the owner, in a more material and quantifiable aspect, in the Middle Ages, than in the Roman period, that was more spiritual.
In this way it passed from a primitive conception of the property of things tending to its conservation, based on its use and fruits to another that understands the thing as a good with an economic value that offers to the holder an economic benefit, tending to accumulate.

So, it can be said that the sum of those aspects will result in the patrimonial view of the Roman citizen from a legal private point of view, being difficult to establish its public side in favor of a more agile private economy8.

Relation between law, economy and society

The economy has always had influence in all societies and has guided the actions of its leaders in both public and private administration. However, has been the evolution of a society, often understood as the evolution of its economy with direct influence over the law that it itself provides for its organization and coexistence?.
To answer this question we will take different examples well known in Roman law, such as the treatment of property rights, property on which it falls and its legal protection, and must be differentiated between public and private law, as Ulpiano notes:

“Huius studii duae sunt positiones, publicum et privatum. Publicum ius est, quod ad statum rei Romanae spectat, privatum, quod ad singulorum utilitatem; sunt enim quaedam publice utilia, quaedam privatim. Publicum ius in sacris, in sacerdotibus, in magistratibus consistit. Privatum ius tripetitum est; collectum etenim est ex naturalibus praeceptis, aut gentium, aut civilibus9.

In most occasions, Roman lawyers will understand that the credit rights derived from the compulsory contract belong to the bona (heritage), and that these are rights with monetary value for the economic satisfaction of a need.

Thus, for Ulpiano, the word goods can have a natural or civil significance. In the natural conception, they are called goods because they make them happy. Equally it will count between the goods the petitions and the persecutory actions; because he considered that everything is in the goods:

“Bonorum appellatio, aut naturalis aut civilis est; naturaliter bona ex eo dicuntur, quod beant, hoc est, beatos faciunt; beare est prodesse. In bonis autem nostris computari sciendum est, non solum quae dominii nostri sunt, sed et si bona fide a nobis possideantur, vel superficiaria sint. Aeque bonis adnumerabitur, etiam si quid est in actionibus, petitionibus, persecutionibus; nam haec omnia esse videntur10”.

Now, if we refer to the economic dimension, it is because the good has an objective value that can be denominated as price, which would be the market value or pretium rei. Thus, everything will have an economic dimension that would lead, for example, if it were damaged, to a satisfaction through the delivery of a sum of money to its owner, not forgetting, incidentally, that the sentence in the agere per formulam process, was always pecuniary11.
Paulo, referring to the things that make up the patrimony of the deceased and that can be bequeathed, says:

“Et omne, quod ex bonis defuncti erogatur…sive in corpore constet certo incertove, sive pondere, numero, mensura valeat, aut etiam si ius legatum sit, ut ususfructus, aut quod in nominibus est12”.

As for the inclusion of rights or res incorporalis in the patrimony, is important a text of Papiniano referring to the non corporeal goods in which it says:

“Hereditas etiam sine ullo corpore iuris intellectum habet13”.

From the last three texts cited, the idea of the existence of a certain economic impact in roman private law is clear, since those jurists talk about goods that seek a profit, consisting of credits, or obligations; and, on the other hand, terms such as computing, profit, etc. are used.

In this way, any external good with respect to the subject, will be able to be classified in the order of material wealth, valued, by its nature, in money, and suitable to satisfy an economic need.

This kind of goods can be exchanged, both themselves and their fruits, with other goods or fruits and their usefulness is subject to comparison with others, valued in relation to money14, which has as purpose the measurement of economic profits.

But, according to Paulo, debts must also be included, even though they are not usually included in the estate15:

”Princeps bona concedendo videtur etiam obligationes concedere16.

It is equally interesting to show that although the normal material value of the assets contained in the patrimony is of interest to the society, appreciated within a defined and concrete framework, the non-pecuniary interests of each individual connected with those same assets are not equal.

In this way, they will only have importance for a specific person, who is the only one capable of appreciating the particular economic amount, if any, and this would not be a socially relevant interest, but an individual interest that is therefore left without legal protection or measurement.

So what is heritage, what does such a term refer to?. From the texts offered, it seems that the patrimony is a universality of active and passive elements susceptible of pecuniary valuation, rooted in the patrimony of a person whose material character is transmissible, as opposed to the more intimate aspects, such as a particular or a personal interest, that disappear with the same disappearance of person. In summary, the assets would consist of assets and liabilities, that is, real and credit rights17.

The sentence in a process linked to the economic and social aspect of the goods

Ulpiano, in his famous and disputed text, says that obligations must be capable of being liquidated in the same way as in the agere per formulam, although there are certain intangible goods which cannot be the object of such measure or value, as life or freedom:

“…Et Octavenus putabat liberari; et idem dicebat, et si ex stipulatu Stichum deberet, eunque statuliberum solvisset; nam et si ante solutionem ad libertatempervenisset, extingueretur obligatio tota; ea enim in obligatione consistere, quae pecunia lui praestarique possunt, libertas autem pecunia lui non potest, nec reparari potest ; quae sententia mihi videtur vera18“.

Therefore, in principle, every good is susceptible of having a price, a more or less exact value in money by which it can be exchanged. So, as stated above, the object has besides the susceptibility of pecuniary conversion, other qualities such as to offer an economic utility and externality, which will facilitate the establishment of an amount of money.

The internal assets of the person cannot be included in the patrimonial environment, which contrasts with the possibility of a monetary appreciation, devoid of economic utility; with the exception that they are susceptible of transformation or pecuniary valuation if, for some reason, they were injured because, by its very nature it could be appreciated that they are not genuinely patrimonial, and whenever socially considered worthy or that must be under legal protection.

Ihering, meanwhile, comes to say that it is not true that the good must consist of an amount of money because the praetor and iudex protect non-economic interests through the payment of a sum of money that would have a legal satisfaction of a private interest injured by someone. That is to say, as an equivalent by the damage caused in non-economic interests19.

Kelly – following Wenger20 – believes that the origin of this peculiar mode of monetary condemnation -agere per formulam-, is in the capitalist character of the end of the Roman Republic, although both (Kelly and Wenger) will differ in interpreting the advantages and disadvantages of this system.

Kelly21 believes that occurs due to: a) a general environment of monetary shortage and b) the fact that the sentences were in money would favor litigation in order to obtain a favorable sentence and thus obtain a liquid amount.

Tacitus22, gives evidence of this in the context of a letter stating that «… in the same way that a similar monetary shortage resulted from a general claim of debts during the reign of Tiberius».

However, in addition to this, it must also be taken into account that, although not generally, there was in ancient times, also a sentence in money, in cases of criminal responsibility, and the person responsible can respond or be released by paying a sum of money (payment of atonement23) or, if not, to suffer personal execution24 and, however, there was no such generalization of litigation or increase of crimes25.

Other authors, such as De Cupis26, consider that in the primitive times of civilization, in an incipient state in its commercial development and of little diffusion of the currency; the basic circumstances cannot be found so that the pecuniary valuation and redress can be manifested, finding in these cases the reintegration in specific form.
For De Cupis the compensation in cash, will appear only in more advanced stages of the law becoming widespread as a form of reparation established in the sentence. Since then, this solution has been maintained, even to doubt if reintegration would still have a specific form.

In general terms, this payment can be considered as a consequence of the historical, political, economic and social evolution of the condemnatory sentence in Rome27 but now no longer personal, but more comfortable for the loser in judgment that would solve his situation with his estate.

However, the pecuniary sentence of the agere per formulam that will occur at the time of the sentence, will not always satisfy the claim of the plaintiff and may favor the defendant extraordinarily.

For Düll, therefore, there should be some choice on the part of the successful applicant in satisfying his claims: a) either of an economic nature (condemnatio pecuniaria) or b) by return of the contentious object (condemnatio in ipsam rem).

Ihering also share this opinion and this same sense of the benefit of the defendant won in court. Ihering speaks about the expropriation of the thing of the plaintiff because with the payment of the amount of money of the judicial sentence, the defendant won in judgment was in possession of the thing being able to acquire by use (usucapio); although he understands the pecuniary condemnatio in a double aspect: a) as a sacrifice of the right in benefit of the opportunity, avoiding the possible risks that would bring with it an absolutist interpretation, b) as a double function of the condemnatio pecuniaria: a function of equivalence of money, and other criminal function consisting of the obligation to pay the sum of money ordered in his sentence by the judge.

In relation to the meaning of equivalence, it is possible to emphasize a text of Ulpiano in which it says the following thing:

«Pecuniae verbum non solum numeratam pecuniam complectitur, verum omnem omnino pecuniam, hoc est omnia corpora; nam corpora quoque pecuniae appellatione contineri, nemo est, qui ambiget28».

This is opposed by Kelly, for whom only this would happen this benefit of the expropriation if the defendant were a rich person, something that would rarely happen, unfolding in most cases a penalizing effect of the pecuniary condemnatio; since in an agrarian society like the Roman one, the money was a scarce good and, therefore, something very difficult to acquire by the defendant and at the same time would represent something of great value for the plaintiff.

This position would be corroborated by Ciceron in his letter to Attico where he shows the scarcity of currency and the effects of this scarcity even for the richest classes, and he must intercede for his brother Quinto but who was insolvent because he did not have nummi:

“Quintus frater laborat ut tibi quod debet ab Egnatio solvat: nec Egnatio voluntas deest nec parum locuples est, sed cum tale tempus sit ut Quintus Titinius (multum enim est nobiscum) viaticum se neget habere idemque debitoris suis denuntiarit ut eodem faenore uterentur, atque hoc idem etiam L. Ligus fecisse dicatur, nec hoc tempore aut domi nummos Quintus habeat aut exigere ab Egnatio aut versuram usquam facere possit, miratur te non habuisse rationem huius publicae difficultatis”.

In another passage from the same letter, Ciceron29 clearly shows the alarming shortage of liquid money, which could even harm large landowners with few liquid resources, highlighting, once again, the penalty of the pecuniary sentence (condemnatio) as agrees Giffard, who also considers both taxatio and aestimatio as a way to encourage or to push the debtor to fulfill his obligation under penalty of incurring in greater harm to him30.

From the third century A.D., a large list of imperial constitutions are testimony of the widespread practice of the application of condemnation in ipsam rem ending the general principle of condemnatio pecuniaria:

“…tam fundum vestrum constitutum probantibus, quam fructus, quos eum mala fide percepisse fuerit probatum, aditus praeses provinciae restitui iubebit31.

Now, in which cases will the judge order the restitution of the thing and in which ones he will condemn in a sum of money?. The judge will order the restitution of the thing when it is the subject of the litigation, in the rest of the cases the sentence will be pecuniary32.

Therefore, it could be concluded that in this period the judicial sentence that predominates is in ipsam rem, but the pecuniary condemnatio is maintained for certain cases. Even in some cases the sentence remains in personam, which will suffer the defendant won in court with his own body, as remains that still remain of the archaic manus iniectio.

In this sense, it is important to mention a text by Ulpiano in which this effective way of enforcement is carried out by the judge, and which also shows that in this procedure the main sentence is in ipsam rem, and when this is not possible will use other mechanisms that could satisfy the winning applicant:

“Qui restituere iussus iudici non paret, contendens non posse restituere, si quidem habeat rem, manu militari officio iudicis ab eo possessio transfertur, et fructuum dumtaxat omnisque causae nomine condemnatio fit. Si vero non potest restituere, si quidem dolo fecit, quo minus possit, is, quantum adversarius in litem sine ulla taxatione in infinitum iuraverit, damnandum est. Si vero nec potest restituere, nec dolo fecit, quo minus possit, non pluris, quam quanti res est, id est, quanti adversarii interfuit, condemnandus est. Haec sententia generalis est, et ad omnia, sive interdicta, sive actiones in rem, sive in personam sunt, ex quibus arbitratu iudicis quid restituitur, locum habet33».

Most of the doctrine is inclined to point out that this change was due to economic reasons with special emphasis on the inflation crisis of the third century A.D. and in the little practical adaptation of the aestimatio in terms of restoring the economic balance between the parties. In addition, for Romano34, the cognitio –new process generalized after agere per formulam- represents a powerful way of effective control to ensure manu militari the execution of the judicial sentence.

Because all we have seen and because there has been an evolution of a social nature, there is not going to be as much interest in obtaining a quantity of money as in the obtaining of what is triggered, the object of the judgement. Thus, if the benefit consists in a facere, the judge will have the power to force this personal obligation to be performed. Only in the event that it becomes impossible will sentence to the pecuniary condemnatio, because as Kaser35 says, money is an extended value and recognized as equivalent for all the members or citizens.
The function of money, then, would be that which Ihering calls, equivalence to performance. It is understood to be equivalent according to social measure, not according to an individual measure, because the price that someone can propose may be lower or higher than that which most men consider36.

The possibility of a monetary valuation in order to provide an economic remedy to the defendant who has been defeated at trial must have a common objective: to guarantee the payment of the sentence more forcefully37, among other considerations.

Conclusions

1. The communities already from the antiquity have evolved trading with each other and exchanging their products. Within a society the mechanism of measurement of the value of these products has also evolved from simple barter to exchange by a series of metallic objects called coins that began to be produced in the most developed societies.

2. The problem that originates the use of the currency is the establishment of the value of the goods that varied from the one commonly given by a group of individuals called market and that supposes the so-called market price (pretium rei) against the value that a particular individual has on that material or immaterial object that interests to him/her and that may be higher or lower than the market (pretium affectionis). The Law has always tried to protect those particular goods and interests taking into account also the value (not always in a material view) that gives to them the community where he/she lives. Sometimes this protection consist in the devolution of the same good claimed by the plaintiff, in other cases in a payment of a sum of money.

3. From the roman period we can study different mechanisms to do so though the judicial point of view and the application of the judicial sentence. Probably, in the roman legal process, never before the introduction of the agere per formulam was a mandatory sentence consisting of an amount of money but, rather, it seems that the sentence was in ipsam rem. The origin of the pecuniary sentence, as Kelly puts it, could be found in some law that allowed its rapid generalization and that would be based on the sporadic practice of payment in cash of the sentence instead of responding with the person. The appearance of the lex Poetelia Papiria (over heritage and not in a personal condemnation) assumes a greater guarantee for the fulfillment of the obligation, since it is considered that any object of litigation is valued in money by means of the discretionary power of the judge (litis aestimatio).

4. The pecuniary conviction, although it does not imply the return of the very object on which it is litigated (“expropriation” for Ihering, “benefit for the upper classes” for Kelly), also has a marked criminal character (at least in origin) burdensome to the debtor, in so far as it condemns a greater economic value than the thing in question actually has. Concerning to the different concepts of interest, it must be understood as such that objective relation existing between subject and object, the existence of a necessity and its satisfaction, producing a benefit that can be of different nature (moral but non-economic one), protected by the Law and.

5. In this way, it will be possible to repair damages of another nature through a pecuniary satisfaction with the important impact when applying the sentence in the agere per formulam process.

This implies an advance in the field of law because it implies a real legal innovation the pecuniary condemnation with all that this entails from different points of view (guarantee in the collection, greater speed in the satisfaction of the repair, etc.). In summary, the pecuniary conviction is going to be given against the defendant who was unsuccessful in the event that the latter did not comply or deliver the due (main obligation), and its reparatory function comes into play as soon as it reports a utility to the creditor. Even in cases where the conviction is specifically (cognitio extra ordinem), in the event that this is not possible, pecuniary satisfaction is used as a means of procuring the injured party a means of reparation for the damages caused.

The defendant that it is supposed could lose the judgment could avoid the pecuniary sentence by delivering the litigious thing before giving the sentence by the judge but only in certain cases -arbitrary actions- having no choice than to pay the sum of money once the sentence has been pronounced.
Prof. Dr. Antonio Silva Sánchez

KEYWORDS: Process, Condemnation, Goods.

ABSTRACT: “What is pursued with this work is to bring the economic panorama and the legal consequences in the evolution of a concrete society that tries to protect the goods and their traffic between individuals by different mechanisms”.

References

11 BESELER, G., Beiträge zur Kritik der Rómischen Rechtsquellen, III, Tübingen, 1913; “Zur Sachenvertberechnung”, ZSS 50 (1930). BETTI, E., La Struttura dell´Obbligazione Romana e il problema della sua genesi, Milano, 1955 e Istituzioni di diritto romano, Tomo II, Padova, 1960. BIONDI, B., Contratto e stipulatio, Milano, 1953. CUPIS, DE, A., El daño, (traducción de A. Martínez Sarrión), Barcelona, 1975. DAZA, J., Iniciación al estudio histórico del derecho romano, Madrid, 1997. DÜLL, R., “Über textkonjekturen zu Gaius Veronensis und zur Frage der Zwangsenteignung im römischen Formularprozes”s, ZSS 96 (1979). F. GIMÉNEZ, La actividad económica en el derecho romano. Análisis contable, Madrid, 2003. GROSSO, G., Obbligazioni. Contenutto e requisiti della prestazione, obbligazioni alternative e generiche, Torino, 1966. HELLWIG, K., “Ueber die Grenzen der Vertragsmöglichkeit”, Archiv für die Civilistische Praxis 86 (1896). IHERING, VON, R., Sobre el interés en los contratos y la supuesta necesidad del valor patrimonial de las prestaciones obligatorias, Estudios jurídicos, (traducción de A. González Posada), Buenos Aires, 1974 y El Fin del Derecho, (traducción de A. González Posada), Buenos Aires, 1978. KASER, M., Quanti ea res est, München, 1935; Das römische Zivilprozessrecht, München, 1966 (=edición 1996); Restituere als Prozessgegenstand, München, 1968 y Das römische Privatrecht, II Abschnitt, München, 1975 (=traducción de J. Santa Cruz, Madrid, 1968). PASTORI, F., Concetto e struttura della obbligazione nel diritto romano, Milano, 1985 y Elementi di diritto romano. Le obbligazioni, Milano, 1990. PERNICE, A., Labeo, III, 1, Halle, 1892; Vermögenswert der Obligation. Römisches Privatrecht im Ersten Jahrhundert der Kaiserzeit, Aalen, 1963. ROMANO, A., “Condanna in ipsam rem e condanna pecuniaria nella storia del processo romano”, LABEO 28 (1982). WENGER, L., “Zu drei Fragen aus dem römischen Zivilprozessrechte (Eine Nachlese)”, ZSS 59 (1939). WINDSCHEID, B., Diritto delle Pandette, Tomo II, (traducción de C. Fadda‑P.E. Bensa) Torino,
12 F. GIMÉNEZ, op. cit., p. 19.
13 Other important books: H., “Actions by which we claim a thing (res) and a penalty (poena) in classical roman law”, BIDR 85 (1982). ARNDTS, G., Trattato delle Pandette, Tomo II, Bolonia, 1880. BERETTA, P., “Le formule in id quod interest”, SDHI 3 (1937), II. BISCARDI, A., “Pecunia traiecticia e stipulatio poenae”, LABEO 24 (1978) III. BLANK, H., “Condemnatio pecuniaria und Sachzugriff”, ZSS 99 (1979). BONFANTE, P., Corso di diritto romano, Tomo IV, Milano, 1979. BURDESE, A., “Sulla condanna pecuniaria nel processo civile romano”, SCDR, Madrid, 1989. COHNFELDT, R., Die Lehre vom Interesse nach römischen Recht, Roma, 1971. EHRHARDT, A., “Litis aestimatio in der Zeit von der leges Iuliae iudiciariae”, ZSS 55 (1935). FERRINI, C., Manuale di pandette, Milano, 1953. LOMBARDI, L., “L´actio aestimatoria e I bona fidei iudicia”, BIDR 63 (1960). LÜBTOW, von, U.,”Ursprung und Entwicklung der condemnatio pecuniaria”, ZSS 68 (1951). MARCHI, A., “Il risarcimento del danno morale secondo il diritto romano”, BIDR 16 (1904) y Storia e concetto della obbligazione romana, Roma, 1972. MARRONE, M., Istituzioni di diritto romano, Palermo, 1989. MEDICUS, D., Id quod interest, Köln‑Graz, 1962. PEROZZI, S., Istituzioni di diritto romano, vol. II, Roma, 1928. PUCHTA, G. F., Pandekten, Leipzig, 1845. PUGLIESE, G., Istituzioni di diritto romano, Torino, 1990. RABER, F., Zum Pretium Affectionis, Festgabe für Arnold Herdlitczka, München/Salzburg, 1972. RATTI, U., “Il resarcimento del danno nel diritto giustinianeo”, BIDR 40 (1932). ROBERTIS, de, F. M., “La funzione della pena nel diritto romano”, Studi in Honore de S. Solazzi, Nápoles, 1949; “Quanti res est‑id quod interest nel sistema della grande compilazione”, SDHI 32 (1966) y “Sulla risarcibilità del danno morale nel diritto giustinianeo”, Scritti varii di Diritto romano, Bari, 1987. SANFILIPPO, C., Istituzioni di diritto romano, Messina, 1996. SAVIGNY, von, F.C., Pandektenvorlesung, 1824/25, Frankfurt am Main, 1993. VACCA, L., “Actiones poenales e actiones quibus rem persequimur”, IURA 40 (1989). VOCI, P., Risarcimento e pena privata nel diritto romano classico, Milano, 1939. VOLTERRA, E., Instituciones de derecho privado romano, (traducción de J. Daza Martínez), Madrid, 1991.
14 In most cases, the reference to accounting, private and with a special attention to the operation of bank accounting can be found in D. 2.13, which sometimes includes in detail the role of banker, client, ways of presenting, elaborating and showing accounts, etc., as long as such activity was presented as being of public interest.
15 F. GIMÉNEZ, op. cit., pp. 427 y ss.
16 This same figure is perfected with the passage of time, giving rise to others like the emptio spei or the emptio rei speratae, or incorporating covenants.
17 From the twelfth century when commercial law will appear as branch and legal discipline.
18 However, A. FERNÁNDEZ DE BUJÁN (Derecho público romano y recepción del derecho romano en Europa, 5ª edición, Madrid, 2000, p. 203, also Derecho público romano. Recepción, jurisdicción y arbitraje, Madrid, 2010), considers that this is due to the general ignorance of the Roman administrative system and its lack of reconstruction which, considers PENDÓN MELÉNDEZ (Régimen jurídico de prestación de servicios públicos en derecho romano, Madrid, 2002, pp. 161 y ss.; y 391 y ss.), is a loophole of Roman science, overlooking almost everything related to public accounting, whose competence, in republican time, belongs to the Senate. D. 2.13.3 (Mauricianus, libro II, de Poenis):”Senatus Censuit, ne quisquam forum, a quipus quid fisco petetur, alia instrumenta delatori cogatur edere, quam quae ad eam causam pertinerent, ex qua se deferre professus esset”.
19 D. 1.1.2 .(Ulpianus, libro I, Institutionum).
10 D. 50.16.49. (Ulpianus, libro LIX, ad Edictum). It is clear that property that is part of a heritage tends to satisfy the needs of its owner either morally (“…beatos faciunt…”) or materially (“… beare est prodesse…”). Private law has to do with the reality of trade and the game of interests and needs. The claimant has the right to receive an economic content or even satisfaction of a nature other than the purely commercial or economic nature in those cases in which he claims damages.
11 Although the exceptions of the actions with arbitrary clause where avoided the condemnation, that did not come to take place fit the exceptions of the actions. It was avoided through in nature restitution, although only such a possibility was possible in a very specific group of assumptions.
12 D. 35.2.1.7.(Paulus, libro singulari ad legem Falcidiam).
13 D. 5.3.50.(Papinianus, libro VI, Quaestionum).
14 Originally this exchange value was constituted by the heads of cattle: oxen, rams, etc., denominated pecus, from which come the words or term pecunia, that make reference to the money as we understand it today.
15 D. 50.16.39.1. (Paulus, libro LIII, ad Edictum):”Bona intelligitur cuiusque, quae deducto aere alieno supersunt”. Precisely it is another text of Paulo, that would emphasize a certain contradiction with the previous text. In fact, this contradiction does not seem to exist since the latter text refers to a very specific concept of assets, understood as an asset or a responsible body against creditors.
16 D. 50.16.21. (Paulus, libro XI, ad Edictum).
17 G. GROSSO, Obbligazioni. Contenutto e requisiti… cit., p. 147.
18 D. 40.7.9.2. (Ulpianus, libro XXVIII, ad Sabinum), original text for authors like A. PERNICE, Labeo… cit., p. 191 and G. BESELER, Beiträge… cit., p. 19.
19 R. VON IHERING (Estudios… cit., p. 106) opposes a series of points: a) first, he denies the equivalence function of a sum of money in relation to the injury which is legally protected; stating that such an amount of money, to which the person committing the injury is sentenced, is equivalent to the damage caused to non-economic interests (payment that cannot be considered as a relation of equivalence but of compensation), given the importance that has for the subject the damage caused on an interest of that nature, b) on the other hand, IHERING goes from talking about the protection of the benefit, regardless of its pecuniary content or not, to refer to the repair -called by him satisfaction- of the legal interest or feeling injured, through the intervention of the iudex or praetor. It is not so, what is being protected in this way, really, is the interest that the creditor has in a provision and that, by its very nature, is susceptible of being valued economically.
20 L. WENGER, “Zu drei Fragen… cit., p. 340.
21 J. M. KELLY, Roman Litigation, Oxford, 1966, p. 76.
22 Ann. 6.17.
23 G. I. LUZZATTO, Per un´ipotesi sulle origini e la natura delle obbligazioni romane, Milano, 1934.
24 Lex Poetelia Papiria: D. 42.1.6.1. (Ulpianus, libro XLVI, ad Edictum): “Decem aut noxa e dedere condemnatus iudicati in decem tenetur: facultatem enim noxae dedendae ex lege accipit”. The sentence over the body of the defendant, in old times, was an indirect coercitive way, as could be carried out by a third person –filius- but in the case of a sum of money, pecuniary or monetary sentence this was more direct whose employment was going to give better results. M. KASER, Das römische Privatrecht… cit., p. 287; J. L. MURGA, Derecho Romano Clásico: El Proceso,Tomo II, Zaragoza, 1983, p. 245.
25 In a very far opinion from KELLY, are G.I. LUZZATTO, Per un´ipotesi sulle origine… cit., p. 113; E. BETTI, Istituzioni… cit., p. 57.
26 A. DE CUPIS, El Daño… cit., pp. 818 y ss.
27 From that initial sentence to appease the wrath of the gods with a sentence of reparation. At this point authors such as R. Düll are based to support his theory that the condemned in the procedure had the possibility of choosing to return the thing in dispute or payment of a sum of money. Probably, this belief is so, because in the archaic era the defendant had the option to suffer the corporal apprehension or to conclude with the payment of money. This would probably happen not only in order to avoid serious damage in all respects to the loser, but because the victorious claimant would often prefer a conviction in this sense than to have to be satisfied with the apprehension of the person of the defendant.
28 D. 50.16.178 pr (Ulpianus, libro XLIX, ad Sabinum).
29 Ad att. 9.9.4.
30 A. GIFFARD, Études de droit romain… cit., p. 96. For him, the sentence in cash (condemnatio pecuniaria) is a simplification of the procedural mechanisms in order to avoid –as happnened in the legis actiones process- to a second judgement or liquidation trial: litis aestimatio: D. 9.2.25.2. (Ulpianus, libro XVIII, ad Edictum); D. 9.2.26. (Paulus, libro XXII, ad Edictum).
31 C. 3.32.17; C. 3.32.28: «Res alienas possidendis, licet iustam tenendi causam nullam habeat, non nisi suam intentionem implenti restituere cogitur». C. 3.37.2: «…praeses provinciae restitui tibi eam iubebit cum fructibus…». C. 4.51.1: «…restituere tibi emtores servos iubebit. Quodsi ignoraverint, et corum facti sunt, pretium corum Iulianum tibi solvere iubebit». C. 5.3.2: «Si praesidi provinciae probaveris, ut Eutychiam uxorem duceres, munera te parentibus eius dedisse, nisi Eutychia tibi nupserit, tibi restitui, quod dedisti, iubebit».
32 F. PASTORI, Concetto e struttura… cit., p. 222. D. 32.11.17. (Ulpianus, libro II, Fideicomissorum):”Ex his apparet, quum per fideicommisum aliquid relinquitur, ipsum praestandum, quod relictum est, quum vero ipsum praestari non potest, aestimationem esse praestandam”.
33 D. 6.1.68. (Ulpianus, libro LI, ad Edictum).
34 A. ROMANO, “Condanna in ipsam rem… cit., p. 149.
35 M. KASER, Das römische Privatrecht… cit., p. 287.
36 P. BONFANTE, Corso… cit., pp 62 y 67. Linked to te equivalence to object of the creditor or his/her non economic interest: D. 9.2.33 pr.
37 Reparation studied by E. BETTI, La Struttura… cit., p. 192.