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Reg. Trib. di Sassari N. 217 del 3-2-2004
Memorie
Ivs Antiqvvm - Древнее право
Seminario di Diritto Romano
Tradizione Romana
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Direttore responsabile: Francesco Sini
In Memoriam
Autori
Comitato di direzione: Omar Chessa - Maria Rosa Cimma - Michele M. Comenale Pinto - Domenico
Redazione
Giovanni Maria Uda
D'Orsogna - Gian Paolo Demuro - Giovanni Lobrano - Attilio Mastino - Pietro Pinna - Antonio Serra -
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Corrispondenti stranieri: Ivan A. Biliarsky (Sofia) – Maria das Graças Pinto de Britto (Pelotas) – Ricardo
Combellas (Caracas) – Fei Anling (Pechino) – Leonid L. Kofanov (Mosca) – Ija L. Majak (Mosca) – Antun
Malenica (Novi Sad) – Esperanza Osaba (Bilbao) – †Costantinos G. Pitsakis (Komotini) – Anton
D. Rudokvas (San Pietroburgo) – Teodor Sambrian (Craiova) – Bronislaw W. Sitek (Olsztyn) – Evgenji
A. Sukhanov (Mosca) – Xu Guodong (Xiamen)
Segreteria di redazione: Cristiana M.A. Rinolfi – Antonio Ibba (coordinamento) – Adriana Muroni
(informatica) – Stefania Fusco – Anam. Martin Garcia – Ursula Mariani – Isabella Mastino
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Reg Trib. di Sassari N. 217 del 3-2-2004
http://www.dirittoestoria.it/11/redazione.htm
Memorie
Ivs Antiqvvm - Дре внее право
Seminario di Diritto Romano
Tradizione Romana
Co ntributi
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TRADIZIONE ROMANA
Per la pubblicazione degli articoli della sezione “Tradizione Romana” si è applicato, in maniera rigorosa, il procedimento di
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FRANCISCO CUENA BOY – Universidad de Cantabria
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Ne funestentur sacra civitatis, ne sanctum municipiorum ius polluatur. Una
reflexión sobre el posible alcance público de la contaminación causada por el
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contacto con la muerte
CRISTIANA M.A. RINOLFI – Università di Sassari
Il giuramento dei chierici fra diritto romano e diritto canonico
Responsibility of Municipal Clerks
BRONISŁAW SITEK – Warmińsko-Mazurski University in Olsztyn
Law and Administration Faculty
Responsibility of municipal clerks in Roman law by virtue of improper disposal of
public financial resources on the example of corn trade
Edicta
STEFANIA FUSCO – Università di Sassari
Studi sull’iniuria: l’edictum de convicio
ANNA TARWACKA – University Cardinal Stefan Wyszyński in Warsaw
Faculty of Law and Administration
Cascellius and the Aedilician Edict on Throwing Fruit into the Arena
ANNA TARWACKA – Uniwersytet Kardynała Stefana Wyszyńskiego w Warszawie,
Wydział Prawa i Administracji
Cascellius i edykt edylów o rzucaniu owoców na arenę
Libertas
ADRIANA MURONI – Università di Sassari
Sull'origine della libertas in Roma antica: storiografia annalistica ed elaborazioni
giurisprudenziali
http://www.dirittoestoria.it/11/tradizione.htm
Infanticidium
SEBASTIANO TAFARO – Università di Bari
Diritto alla vita e infanticidium
‘Querela inofficiosi testamenti’ / ‘iudicatum’
RICCARDO FERCIA - Università di Cagliari
'Querela inofficiosi testamenti' e 'iudicatum': problemi e prospettive tra II e III
secolo
Retentio
MASSIMILIANO VINCI – Università di Roma Tor Vergata
La tutela del possessore per i ‘miglioramenti’ sulla res evitta: il criterio di
applicazione della retentio nel pensiero di Africano (D. 39.2.44.1)
Contratti
ANTONIO SACCOCCIO – Università di Brescia
Dal ‘Sistema romano dei contratti’ di Giuseppe Grosso all’affermarsi del principio
del consensualismo in America Latina
GIOVANNI GUIDA – Università Roma Tre
Compravendita e suggestioni in tema di superamento del principio di relatività
degli effetti del contratto
Lessico legislazione imperiale
ANNA DE FRANCESCO – Università di Bari “Aldo Moro”
Note sull’«anzianità di servizio» nel lessico della legislazione imperiale romana
Tradizione giusromanistica in Russia
&
codificazione del diritto privato
GÁBOR HAMZA – Università Eötvös Loránd Budapest
socio ordinario dell’Accademia delle Scienze Ungherese
Lo sviluppo e la codificazione del diritto privato e la tradizione giusromanistica in
Russia e nell’Unione Sovietica
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on-line in Diritto @ Storia, siano essi ipertesti in formato html, o video o audio, saranno accessibili gratuitamente in
edizione integrale, senza alcuna restrizione, né registrazione preventiva.
Quaderno edito con il contributo di:
Dipartimento di Giurisprudenza
__________________________________________________________________________________________________________
Reg Trib. di Sassari N. 217 del 3-2-2004
http://www.dirittoestoria.it/11/tradizione.htm
BRONISŁAW SITEK
Law and Administration Faculty
Warmińsko-Mazurski University in Olsztyn
Responsibility of municipal clerks in Roman law by
virtue of improper disposal of public financial
resources on the example of corn trade
CONTENTS: 1. Introduction. – 2. Organization of corn trade. – 3. The municipalities
representation at making civil-legal procedures. – 4. Legal bases of clerks responsibility. – 5.
Responsibility rules of magistratus. – 6. Conclusions. – Abstract.
1. – Introduction
Self-governance has its roots in Ancient times, and for sure, the Roman times.
Roman municipalities and colonies are the archetype of contemporary organized
self-government structures and they can be the inspirations to solve current
problems in this field. Hence, the municipalities and colonies have been the subject
of numerous researches, also for the author of this publication[1].
Magistratus in municipalities conducted different legal actions related with
spending public financial resources. The development of organization and
functioning of municipalities initiated many rules connected with magistratus (clerks)
responsibility for improper disposal of public resources. The subject of this work is
the analysis of rules for clerks responsibility, in relation to one of the basic
assignments of magistratus, i.e. supplying the city, particularly the corn supply.
Rome and other municipalities in distant areas of the empire were food
supplied by the authorities of each ancient city, what was their basic obligation. The
basic component of food supply system was creating the institutional and legal
frameworks. The subject of food supply was not only to deliver corn, mainly wheat,
but also oil, water and other foodstuffs, which are not going to be described in this
paper because of the volume of work, which is limited by the number of pages.
The organization system of food supply in Rome and in other municipalities
was relatively complicated and it was constantly modified according to political
systems transformations[2]. The legal system, similarly, was continuously
transformed, and it was depended on new sources of creating law. Hence, the legal
regulations related to corn supply were written by the lawyers in their documents, in
emperors constitutions and municipalities legal acts.
Corn supply to Rome and other municipalities (municipes, civitates or res
publicae) required legal procedures performed by the clerks (magistratus) entitled to
represent the city, e.g. duumvirs who were counterparts of contemporary village
heads, and private subjects that purchased corn, transported it, and keep, in big,
for those times, stores. Exactly those legal procedures are the subject of analysis in
this work. The purpose of this article is to present a character and range of
magistratus’ responsibility when doing their activities.
The system of corn supply organization and the legal actions linked with it,
were not the subject of interest for Polish Romance philology, although, T.
Łoposzko[3] and S. Mrozek[4] write about largitiones privatae. Also M.
Kuryłowicz[5] writes about the penal aspects of food supply system. The issues of
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ancient cities food supply were the subject of numerous works in international
literature[6]. After the rough analysis of literature, there should be stated the lack
of relation to issues associated with legal activities for food supply to Rome and
other cities of the empire, and particularly those, associated with the character of
actions and the range of magistratus responsibility.
2. – Organization of corn trade
Corn, mainly wheat, and also water, oil and wine, constituted the basis of
biological existence of a man in Ancient Rome. Not all the dwellers of Rome or other
cities, could afford to buy basic food products at the market prices, spending their
money. Hence, the authorities of individual cities had the duty to provide the basic
needs of the poorest part of their societies.
In Rome there was organized a kind of social assistance system –frumentatio,
it consisted in free or for little payment corn distribution. During the rush period
there were even over 300,000 of dwellers in Rome (numbering about million
citizens), entitled to profit of this kind of help.
Boarding so big number of dwellers in need, originated the necessity to store
appropriate corn supplies and other food products. In Rome the ediles were
responsible for corn storing, whereas in provinces the responsibility was on duumvirs
and ediles[7]. In some cities, there were also curatores rei publicae[8]. Exactly
those clerks, working on behalf of the local communities, had at their disposal the
proper financial resources for that purpose. They made proper contracts with the
subjects (publican, susceptores)[9] dealing with corn purchasing from private
producers, with corn transport (navicularii)[10] and the owners of harbour stores,
where corn was stored.
3. – The municipalities representation at making civil-legal procedures
According to A. Bricchi[11] magistratus, performing the legal procedures with
private subjects on behalf of municipalities, acted on the basis of public and private
law. The public officers made mainly the contracts: sale (emptio-venditio),
arrentation of public areas (locatio-conductio rei), or the contract on doing public
works. In those cases, the clerk acted on behalf of the institution, which he
represented. That was the direct representation, defined in sources as nomine
communi municipium[12]. Therefore, that was the defection of the rule of indirect
representation, typical for Roman private law at that time. Consequently, it can be
stated, that there were the beginnings of dogmatically unknown construction of
indirect representation. Any disputes resulting from these legal activities were solved
by means of instruments of legal protection typical for formulary process (per
formulas).
On the basis of analysis of sources in literature of the end of the19th and the
beginning of the 20th centuries, there was worked out the distinct theory, called the
indirect representation. According to that theory magistratus performed the legal
procedure with the direct effect for him, only later, at the end of his authority
service, he made the transfer of his liabilities for the municipality. Therefore, that
was the classical indirect representation, as a consequence, during the period of
performing magistratus function, the person taking civil-legal liability was
self-responsible. Within mutual accounts, particularly for the damages sustained
during the transport of corn, the clerk had the possibility to require the
compensation against the municipalities with actiones utiles or to accept the praetor
protection[13].
The Italian Romanist A. Bricchi[14], mentioned above, properly noticed in the
40s of the 20th century, that the French Romanist B. Eliachevitch[15], the main
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representative of that theory, omitted the earlier research and accepted the rule,
according to which magistratus, as a representative of organs or institutions,
represented them directly. Therefore, he performed the legal procedures, also within
the private law, contracting obligations with direct effect for the represented
institution.
In turn, in the latest literature we can find the conception by Y. Thomas,
introducing a new notion quasi the cities representation by the clerks at performing
civil-legal activities, means something between the direct and indirect
representation[16].
The conceptions mentioned above, related with the character of legal
procedures, were formulated, imitating the contemporary conceptions of direct
representation[17]. In the meantime, according to the Roman legal dogmatics, any
definitions and generalizations were created in general for the needs of didactics,
not practice, which is still something dynamic, beyond specified frameworks. Hence,
Javolenus said that any definitions are not safe[18]. Therefore, the practice applied
in Roman law, can be revealed though the analysis of specific events (cases), which
will allow to formulate several generalizations, and as a consequence, to indicate the
similarities between the past and contemporary regulations.
4. – Legal bases of clerks responsibility
The clerks responsible for purchasing corn and its supply to Rome or
municipalities had to undertake the activities within their representation of cities.
The range of magistratus qualifications resulted from general principles, customs, or
the warrant given by the city council (ordo decurionum).
In case of purchasing corn, the most important issue was to fix the price.
Since that determined the security of proper amount of financial resources in the
state or city budget, and the clerks responsibility.
Paul. l. primo sententiarum (D. 50.8.7 pr.): Decuriones pretio viliori
frumentum, quod annona temporalis est patriae suae, praestare non sunt
cogendi.
According to Paulus, magistratus was obliged to purchase corn according to
market prices. Therefore, he was not obliged to search special offers. It was enough
to display, that the price of corn purchased did not vary from the market price,
obligatory at that moment. That statement should be seen from the perspective of
fighting with the phenomenon of manipulation of corn price, e.g. through the price
conspiracy. Marcianus, the other lawyer, represents similar attitude.
Marcianus libro primo de iudiciis publicis (D. 50.1.8): Non debere cogi
decuriones vilius praestare frumentum civibus suis, quam annona exigit, divi
fratres rescripserunt, et aliis quoque constitutionibus principalibus id cautum
est.
The Emperors Marcus Aurelius and Lucius Verus (divi fratres) decided that
Decurions should not have been forced to supply corn at the lower price than the
market offered. Furthermore, the similar solutions were defined in other emperors’
constitutions.
E. Albertario[19] in the textbook for Roman law of contract undertakes briefly
the issue concerning clerks responsibility for the city food supply. According to the
author, the lower clerks, both in provinces and in cities, were jointly and severally
responsible together with nominators, means with those who nominated them, to
accomplish specified assignments on the basis of the corn supply contract.
The dogmatic construction of magistratus responsibility for the liabilities,
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appearing with the occasion of making contracts on corn supply, was based on
existed earlier responsibility of administrators for the property of the persons being
under charge[20]. In case of constituting several administrators, all of them were
jointly and severally responsible. Analogically, in case of clerks responsibility for the
liabilities towards the city purse. In that case, they were also jointly and severally
liable.
Since Marcus Aurelius[21] times, magistratus was responsible only in case, if
he was able to notify the objection against the activities of his friend in the office,
and he did not do it. However, the clerks could not institute an action (action) within
the formulary process. Consequently, the magistratus responsibility[22] was
becoming restricted. Papinian justifies the conception mentioned above in the text.
Papin. l. secundo quaest. (D. 50.1.11 pr.): Imperator Titus Antoninus
Lentulo vero rescripsit magistratuum officium individuum ac periculum esse
commune. Quod sic intellegi oportet, ut ita demum collegae periculum
adscribatur, si neque ab ipso qui gessit neque ab his, qui pro eo
intervenerunt, res servari possit et solvendo non fuit honore deposito. Alioquin
si persona vel cautio sit idonea, vel solvendo fuit quo tempore conveniri
potuit, unusquisque in id quod administravit tenebitur.
According to the Papinian’s text, the emperor Septimius Sewer in his rescript
addressed to unknown Lentulus, expresses the rule concerning magistratus
responsibility. According to that rule, the duties are individual for each magistratus,
however the responsibility is collective – magistratuum officium individuum ac
periculum esse commune. The content of that rule is the reflection of collegial
system of running local authorities offices during the republican period, or later in
municipalities or colonies. The responsibility of clerks, shaped in such the way, was
applied also in relation to the administrators. According to Claudius Tryphinus Et
tutorum quidem periculum commune est in administratione tutelae et in solidum
universi tenentur[23], the administrators were jointly and severally responsible for
governing the pupils’ properties. The source of joint and several responsibility was
not the contract, legal act, or fault. Therefore, the joint and several responsibilities
of magistratus, resulted from the risk, attributed to the public function and the
constitutional duty, related with it, to take care of the city property[24].
In further part of the Ulpian text there are following two specifications of
magistratus responsibility. In the second sentence the joint and several
responsibility was attributed to the colleague at office, if one of them personally or
his representative performed the legal action on behalf of the represented legal
person, with the damage for the municipality. The joint and several responsibilities
was applied only in case if the person responsible for accomplishing the legal action
was insolvent. As a result, the joint and several responsibility of the colleague in an
office had subsidiary character in relation to the magistratus individual responsibility.
Such the solution has its reflection in the third sentence, where Ulpian writes, that in
case of submitting high enough deposit by the clerk, or in case of possessing
financial resources, each magistratus bears the responsibility individually, for his
governance actions, including civil-legal activities.
In the following extract Ulpian presents the rule about the basis and the
range of magistratus responsibility.
Ulp. l. 1 ad ed. (D. 50.8.8): Magistratus rei publicae non dolum
solummodo, sed et latam neglegentiam et hoc amplius etiam diligentiam
debent.
Magistratus responsibility had subjective character, so they bear the
responsibility for fault (dolus), that means for intentional activities with the damages
for municipality. Ulpian indicates that they were also responsible for negligence
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(neglegentia) and for the shortage of proper diligence (diligenti), which they had to
demonstrate, as at dealing with their own matters[25].
The joint and several responsibility rule of magistratus generated following
consequences, which are described in the text by Ulpian:
Ulp. l. 3 opinionum (D. 50.8.2.10): Quod depensum pro collega in
magistratu probabitur, solvi et ab heredibus eius praeses provinciae iubet.
The joint and several responsibility is linked with the right of recourse.
Therefore, the payment of whole due by one of the responsible clerk, generated the
right of recourse in relation to the others. The return of payment could be claimed
also from the successors of the obliged persons. Such the solution appears also in
municipalities legal acts, e.g. in lex Ursonensis cap. 80, where there is the regulation
obliging the clerk to account the public money, which he disposed, within thirty days
since resigning from the office. In case of his death, that duty was transferred on his
successors[26]. Investigation of regression claims took place at the governor of
province.
The clerk responsibility for the liabilities, contracted on behalf of the city, were
covered from the financial resources (caution rem salvam fore)[27], that was paid
by clerks to the public purse during the republic period, whereas during the
principate period, the municipal clerks had to pay it. The function of deposit was to
protect the interests of the state or city in case of improper governance of the
property, charged to magistratus[28]. The example of constituting such the deposit
for the duumvirs and ediles exists in numerous sources; in lex municipii Tarentini
1.7.12 [29], among others. Still during the 3rd century AD, all the clerks, who
performed public functions- quo eius nomine rei publicae abest, paid the
responsibilities for the contracted liabilities[30]. The joint and several responsibility
of duumvirs for the city matters, was distinctly wider, than in case of occurring such
the responsibility among the private persons.
Further analysis of the sources shows that in the 2nd century AD, the rules of
municipal clerks’ responsibility, particularly the duumvirs, were spread in relation to
the curators. For example curator kalendarii was responsible for the city debts
because of loans, which were taken during his work in the office, even if the clerk
did not do any activities associated with the loan contract[31]. In that case the
responsibility was not based on a gilt, that was the decision of the emperor
Alexander Sewer[32]. The clerks were also responsible for not paying the rent by
renters of public lands, if they made the contract with them, independently of their
fault[33]. Such a wide clerks responsibility was started to be limited in the 2nd
century AD on the basis of rescripts[34].
5. – Responsibility rules of magistratus
Ulpian writes in book 50 entitled 8 De administratione rerum ad civitetes
pertinentium about several rules related with magistratus responsibility.
Ulp. l. 3 opinionum (D. 50.8.2.1): Quod quis suo nomine exercere
prohibetur, id nec per subiectam personam agere debet. Et ideo si decurio
subiectis aliorum nominibus praedia publica colat, quae decurionibus
conducere non licet, secundum legem usurpata revocentur.
According to Ulpian magistratus cannot delegate more rights than he
possesses himself. That late classical lawyer gave as an example situation of
delegating the third person by Decurion to rent public lands. That action constituted
the violation of law-secundum legem usurpata revocentur, because of the fact, that
the individual Decurion did not have such the right.
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In the following text he says about the necessity of spending public financial
resources according to the purpose.
Ulp. l. 3 opinionum (D. 50.8.2.2): Quod de frumentaria ratione in alium
usum conversum est, sua causa cum incremento debito restituatur: idque etsi
contra absentem pronuntiatum est, inanis est querella. Ratio tamen
administrationis secundum fidem acceptorum et datorum ponatur.
Financial resources intended on corn purchasing could not be spent on the
other purposes. The clerk himself could not do it by his own initiative, without
acceptance. The clerk responsible for corn purchasing was obliged to return the
amount of money, expended without accordance to the aim, together with the
interest charged from the day of changing the purpose. Returning the financial
resources, spent not suitably, was prosecuted judicially. Judge had the right to pass
the sentence even at the absence of the person concerned. Such the solution was
justified with the fundamental right which is the basis of administrating the public
properties – good faith and honesty – secundum fidem.
The duty to return financial resources without accordance to the purpose,
appeared also when money was spent to accomplish another public need.
In the extract given above Ulpian gives the example of changing the intention
of spending the financial resources earlier intended on purchasing corn, to realise
the other public purpose, e.g. building the public bathhouse. Even spending those
financial resources well-meant did not absolve from an obligation to return the
whole amount of money to the public purse, even from their own resources.
Ulp. l. 3 opinionum (D. 50.8.2.5): Si indemnitas debiti frumentariae
pecuniae cum suis usuris fit, immodicae et illicitae computationis modus non
adhibetur: id est ne commodorum commoda et usurae usurarum incrementum
faciant.
According to Ulpian the interest should not be exaggerated. In such the case,
the person obliged to pay could refuse to pay it.
The joint and several responsibility of magistratus created the liability (rekurs)
among the clerks, when one of them paid the financial resource to the city or state
public purse.
Ulp. l. 3 opinionum (D. 50.8.2.9): Actio autem, quae propter ea in
collegam decerni solet, ei qui pro altero dependit ex aequitate competit.
Ulpian in his argumentation, justifying such the solution, applied the rule of
right. In practice, that meant that the clerk when making the decision should
demonstrate proper qualifications, not only those required to perform the office
assignments, but also, the moral values. Hence, he was obliged to repair the
damages occurring in municipality property, caused by making a profitless
contract[35].
Magistratus were jointly and severally responsible for the damage caused, if
they governed the public resources improperly. As a result of such the governing
one of the collegial clerks payed the damage. Consequently, he had reserved the
right, to investigate from his office colleague, a half of the returned amount of
money (rekurs). Such the solution was applied during the republican period, what is
acknowledged in numerous examples contained in municipality legal laws[36]. In
turn, the principate period was the time of applying cognitive process, hence, in
many sources there are also the cases of municipality clerks responsibility at the
provinces’ governors, with applying the typical cognitive processes procedures[37].
The following issue, which requires to be solved, is the case of interest of
public money, which obligatory has to be returned to public purse, if it is spent
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improperly.
Ulp. l. 3 opinionum (D. 50.8.3.1) Qui fideiusserint pro conductore
vectigalis in universam conductionem, in usuras quoque iure conveniuntur,
nisi proprie quid in persona eorum verbis obligationis expressum est.
In the text given above, Ulpian says that in case if magistratus fully
guaranteed for the tax collector, he was obliged to return money, which the tax
collector should have gather, but he did not do it, but also he was responsible for
the interest resulting from the legal law.
Ulp. l. 3 opinionum (D. 50.8.3.2) Sed si in locatione fundorum pro
sterilitate temporis boni viri arbitratu in solvenda pensione cuiusque anni
pacto comprehensum est, explorata lege conductionis fides bona sequenda
est.
Magistratus was not obliged to pay interest in case of crop failure. In case of
renting the lands, if there was the crop failure, the renter was not obliged to pay the
rent during that year, and the tax collector and magistratus who made the contract,
returned to the public purse only the nominal amount of money without any
interest. Such the immunity resulted from the fact, that in such the circumstances,
he was treated as an honest person, who, although gave his due diligence, did not
achieve the expected increase. However, he had to have good faith at executing the
stipulations of contract – lex conductionis.
6. – Conclusions
Although in Roman law they did not know the notion, legal person, it was
applied in municipal practice, among others. Municipalities had their own
representation in duumvires persons. In the Roman jurisprudence letters and
emperors’ constitutions, there were written the rules of responsibility of
municipalities’ organs for improper governing of the city properties. The basic rule,
which later generated magistratus responsibility, was the purposiveness of the
public financial resources expenditures. The public resources disposers could not
decide about any changes of their allocation. The changes in purposiveness initiated
the duty of their returning to the public purse together with the interest. The clerks
were responsible even in case when they changed the purposiveness of public
financial resources expenditure with good faith for another public aim. The city
prosecuted the claim in that account, in relation to the successors of the obliged
person. Spending the public financial resources for another aim was treated as
causing the damage on the public property.
In principal, the clerk who decided and gave the disposition about public
financial resources expenditure was responsible for it. Payment was balanced from
the deposit, which magistratus brought into municipal purse, at the opportunity of
his election for the post, or from his private property. In case of his insolvency, i.e.
the deposit was not big enough, or his private property was not enough to
compensate the damage, then they applied the principle of joint and several
liabilities of magistratus working at the same office. Such the solution had its source
in the rule of collegial office governing in republican Rome and in municipalities.
Therefore, when one of the duumvirs was insolvent, then the payment for the
municipality had to be given by the others. However, that who paid the money had
the right to institute a civil action against the office colleague for the return of
payment (recurs). That action could be also instituted in relation to the successors of
the person legally liable.
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Abstract
Municipalities had their own representatives, the duumvirs, whose assignment
was day-to-day governance of the city. The duumvirs also bore governance financial
liability. The basic responsibility rule of magistratus was the purposiveness of public
financial resources, being expended. The change of expenditure’ intentionality
created a duty to return the resources to the public purse together with interest.
Such the duty was on the clerks, even when they changed the purposiveness of
spending the public resources, in good faith, for the other public purpose. The city
prosecuted a claim of that virtue even in relation to the successors of the obliged
person. Payment was balanced from the deposit, which magistratus brought into
municipal purse, at the opportunity of his election for the post, or from his private
property. In case of his insolvency, there was applied the principle of joint and
several liability of the clerks working at the same office.
[Per la pubblicazione degli articoli della sezione “Tradizione Romana” si è applicato, in maniera rigorosa, il procedimento
di peer review. Ogni articolo è stato valutato positivamente da due referees, che hanno operato con il sistema del double-blind].
[1] B. SITEK, Organy Władzy w municipium Irni. Ze studiów nad prawem municypalnym w
Starożytnym Rzymie, Journal of Modern Science, 1/1//2005, 21-42; ID., Zadania municipium w świetle
lex Irnitana. Przyczynek do studiów nad prawem municypalnym w Starożytnym Rzymie, Zeszyty
Prawnicze UKSW 6.1 (2006), 159-171; ID., Tabula Heracleensis (lex Iulia municipalis). Tekst.
Tłumaczenie. Komentarz. Olsztyn 2006, 87; ID., Uprawnienia edyla w świetle ustaw municypalnych.
Studium prawno-historyczne, [in:] Prawo - Administracja – Policja. Księga Pamiątkowa Profesora
Wincentego Bednarka, Olsztyn 2006, 393-405; ID., Suffragiis ferendis in the light of municipal acts. The
Roman election system dilemmas in the ancient Rome, [in:] Diritto @ Storia nr 7 (2008), Sassari
(Włochy), (Romanistic magazine in an electronic version), http://www.dirittoestoria.it/7/TradizioneRomana/Sitek-Suffragiis-ferendis-municipal-acts.htm ; ID., The Ways of Using the Public Places in
Municipalities on the Turn of the Republic and the Principate and the Contemporary Similarities in Polish
Self- Government Law, [in:] UWM Law Review, vol. 2, 2010, 91-107; ID., Suffragiis ferendisw świetle
ustaw municypalnych. Dylematy rzymskiego systemu wyborczego w antycznym Rzymie, [in:] Vetera
Novis Augere. Studia i prace dedykowane profesorowi Wacławowi Uruszczakowi, v. II, Kraków 2010,
927-939; ID., Normy prawne regulujące prace remontowe w prawie municypalnym, [in:] O prawie i
jego dziejach księgi dwie, Księga I, ed. by M. Mikołajczyk i inni, Białystok 2010, 115-121.
[2] More about the system of corn supply see: P. HERZ, Der “praefectus annonae” und die
Wirtschaft der westlichen Provinz, Ktema 13 (1988), 569-588.
[3] T. ŁOPOSZKO, Rozdawnictwo prywatne w starożytności Rzymskiej w okresie schyłku
republiki, Meander 17 (1962), no. 4, 207-214.
[4] S. MROZEK, Rozdawnictwo w miastach Italskich w okresie cesarstwa, Filomata 204 (1967),
215-222; IDEM, Rozdawnictwo prywatne w municypiach italskich w okresie współczesnego cesarstwa,
Menader 25 (1970), 15-31.
[5] M. KURYŁOWICZ, Crimen artioris annonae, [in:] Terra, mare et homines II – Studies in
Memory of Professor Tadeusz Łoposzko. Res Historica 29, Lublin 2010, 73-80; IDEM, Przestępstwa
spekulacji „conrta annonam“ w prawie rzymskim, Folia 34 (1993), 5 ff.
[6] E. HÖBENREICH, Annona. Juristische Aspekte der stadtrömischen Lebensmittelversorgung in
Prinzipat, Graz 1997, 15 ff.; B. SIRKS, Food for Rome. The legal structure of the transportation and
processing of supplies fort the imperial distributions in Rome and Constantinople, Amsterdam 1991.
[7] Cic. de leg. 3.6.
[8] Curator rei publicae was a clerk, who was entitled to replace the duumvirs. He worked in
municipalities in Northern Africa. In the source literature he often appears together with the notion vel
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magistratuum. In that time, there was the organ, besides the duumvirs, having similar rights. The
assignment of curatores was governing the community property and its protection. Such the category of
clerk appears also during the late period of principate and dominate. That office was described by Ulpian
in the book entitled: Liber singularis de officio curatoris.
[9] Corn in the Republic was gathered by publicans, whereas later by the susceptores, which
means by tax collectors. They received their payments once a year. (C.Th. 12.6.9). They run the lists of
tax payers and wrote the amount of corn delivered by them. They had the helpers -writers- scribae,
whose they could not change during the year (C.Th. 12.6.27). Those writers were also called
annotatores. The register of tax payers and their duty to deliver corn was kept in the city archivetabularii publici civitatum (C.Th. 12.6.27). The activity of collecting corn and taxes was defined by the
notion collatio. Corn collecting was supervised by rationalis Africae (C.Th. 11.7.11), called sometimes
rationales. Their activities were controlled by the province governors, and they, in turn by vicarius
Africae (C.Th. 1.15.17).
[10] Corn was transported to Rome or other cities by water by means of private ships the
owners of the ships were paid by the state. That was necessary to have the license to transport corn.
Not everybody could receive the license. Claudius gave the license on condition that the number of
children was proper and they were born in legal married states (iustum matrimonium). That was in
relations to the pro family rules by August jurisdiction. For the service performed navicularii received
the payment, and during the later period they were even released from some public duties. (Suet.
Claud. 18.3-4.19; G. 1.32; Scaev. libro tertio regularum (D. 50.5.3): His, qui naves marinas
fabricaverunt et ad annonam populi Romani praefuerint non minores quinquaginta milium modiorum
aut plures singulas non minores decem milium modiorum, donec hae naves navigant aut aliae in earum
locum, muneris publici vacatio praestatur ob navem. Senatores autem hanc vacationem habere non
possunt, quod nec habere illis navem ex lege Iulia repetundarum licet; Callist. libro primo de
cognitionibus (D. 50.6.6.5): Divus Hadrianus rescripsit immunitatem navium maritimarum dumtaxat
habere, qui annonae urbis serviunt). See. P. GARNSEY, R. SALLER, The Roman Empire. Economy,
Society and Culture, London 1987, 87 ff.
[11] A. BRICCHI, Amministratori ed actores. La responsabilità nei confronti dei terzi per
l’attività negoziale degli agenti municipali, [in:] L. CAPOGROSSI COLOGNESI, E. GABBA, Gli Statuti
Municipali, Pavia 2006, 337 ff.
[12] Lex Malacitana, cap. 63-64. See. B. SITEK, Lex coloniae Genetivae Iuliae seu Ursonensis i
lex Irnitana. Ustawy municypalne antycznego Rzymu. Tekst, tłmaczenie i komentarze, Poznań 2008,
148; A. FERNÁNDEZ DE BUJÁN, De regimen juridico de las concesiones administrativas en el derecho
romano, Madrid 1996, 161. See, also earlier publications: S. SOLAZZI, Di alcuni punti controversi nella
dottrina romana dell’acquisto del possesso per mezzo di rappresentanti, [in:] Scritti di diritto romano I,
Napoli 1955, 335 ff.; L. MITTEIS, Römisches Privatrecht bis auf die Zeit Diokletians (Systematisches
Handbuch der Deutchen Rechtswissenschaft) I, Leipzig 1908, 380-381; I. ALIBRANDI, Dissertatio ad
legem unicam codicis de solutionibus et liberationibus debitorum civitatis, [in:] Opere giuridiche, Roma
1896, 501.
[13] See. L. MITTEIS, Die Lehre von der Stellvertretung, Wien 1885, 69-77; F. KNIEP, Societas
publicanorum, Jena 1896, 360 ff.
[14] A. BRICCHI, op. cit., 337.
[15] B. ELIACHEVITCH, La personnalité juridique en droit privé romain (Société d’histoire du
droit), Paris 1942, 122 ff.
[16] See. Y. THOMAS, Les juristes de l’Empire et les cités, [in:] Idéologies et valeurs civiques
dans le Monde Romain. Hommage à Claude Lepelley, a.c. di H. INGLEBERT, Paris 2003, 189 ff.
According to A. BRICCHI, op. cit., 338, annotation 15.
[17] Such the conception results from art. 31 and 46 passage 1 of legal act from 8th March 1990
about the local self-governments (O.J 2010, No. 106 pos. 675, consolidated text). See. K. BYJOCH, J.
SULIMEIRSKIM, J.P. TARNO, Samorząd terytorialny po reformie ustrojowej państwa, Warszawa 2000,
56 ff.; A. AGOPSZOWICZ, Z. GILOWSKA, Ustawa o samorządzie terytorialnym. Komentarz, Warszawa
1990, 240 ff.
[18] Javol. l. 11 epist. (D. 50.17.202): Omnis definitio in iure civili periculosa est: parum est
enim, ut non subverti posset. Commentations to this text see B.H. STOLTE, Omnis definitio in iure civilis
periculosa est, [in:] Brocardica in honorem G.C.J. von den Bergh, 22 Studies over oude rechtsspreuken.
Deventer 1987, 72 ff.
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[19] E. ALBERTARIO, Corso di diritto Romano. Le obbligazioni solidali, Milano 1948, 206 ff.
[20] Papin. l. secundo quaest. (D. 50.1.11).
[21] Papirius, l. 2 de constit. (D. 50.8.12.5): Item rescripserunt curatorem etiam nomine
collegae teneri, si intervenire et prohibere eum potuit.
[22] E. LEVY, Die Haftung mehrerer Tutoren, ZSS 37(1916), 14-88, 83.
[23] Tryph. l. 14 disput. (D. 26.7.55 pr.). See. G.G. ARCHI, Sul concetto di obbligazione
solidale, Milano 1940, 322: Protectors were jointly responsible for the properties of their pupil. Their
responsibility was the main, and then the other clerks were responsible, who chose the protectors. The
clerks were jointly and severally responsible petunia omnibus in solidum publicae dari placuit. In such
the way the responsibility of protectors is different than in case of constituting the protectors on the
basis of will or datio. On the basis of action utilis tutela and action subsidiaria, magistratus who
constituted the protectors they are responsible on the basis of periculum commune. In that way, there
was realized the rule of officium individuum ac periculum esse commune. The similar solutions can be
find at Ulpian in l. 1 ad ed. (50.1.25).
[24] Paul. l. 9 respon. (D. 26.7.46.1).
[25] See. W.L. BURDICK, The Principles of Roman Law and their Relations to Modern Law, New
Jersey 2004, 414.
[26] See. B. SITEK, Lex coloniae Gentivae Iuliae sue Uronensis i lex Irnitana. Ustawy
municypalne antycznego Rzymu. Tekst, tłumaczenie i komentarz, cit., 45 ff.
[27] Similar solutions were applied in case of protectors cautio rem pupilii salvam fore.
Protectors were responsible with their whole property. See. R. ORTU, Praeda bellica: la guerra tra
economia e diritto nell’antica Roma, [in] Diritto@Storia. Rivista Internazionale di Scienze Giuridiche e
Tradizione Romana, 2005, http://www.dirittoestoria.it/4/Memorie/Ortu-Praeda-bellica.htm [12 XII
2007]; O. LENEL EP, 515 ff.
[28] See. J. PARTCH, Der ediktale Garantievertrag durch receptum, ZSS 29 (1908), 403-422,
408.
[29] Lex Malacitana, cap. 60.
[30] D. 50.8.9(7).
[31] D. 50.8.12.6 (9.9); D. 50.8.11 pr. (9pr.).
[32] C. 11.39(38).1.
[33] C.Th. 12.11.1.3 from 314 AD.
[34] D. 50.8.12.5(9.8).
[35] It should be assumed that the rule of good faith was applied similarly as in case civil-legal
contracts made among the natural persons. See. W. DAJCZAK, Dobra wiara jako symbol europejskiej
tożsamości prawa, Poznań 2006, 9.
[36] Lex Ursonensis cap. 129.
[37] During the period of Trajan that was applied cognitio in case of improper governing of the
community finance resources in Nikodemia. Plin. ep ad Trai. 38.
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