The Insolvency Law of Ancient Rome (Part II)(c)reprinted with permission of the California Bankruptcy Journal

C. Procedures In Avoidance Actions

In the Edict we see mention of different remedies. First, the praetor states he will “grant an action” to anyone defrauded by the acts or failures to act by the debtor, so as to avoid the transfer (or other act prejudicing creditors) and to recover for the estate the property in question in order to further ratable distribution. Commentators believe this “action”, as expressed in Justinian’s Digest (circa 534 CE), was in fact an amalgam evolved from different remedies that had existed hundreds of years earlier in the Classical Period of Roman jurisprudence (“Classical Period”) beginning in the reign of Augustus and ending with the death of Emperor Severus Alexander( 235 CE) . We can suppose this Justinian avoidance “action” roughly resembled the avoidance actions of modern law, i.e. a lawsuit was filed, a summons issued and, if an answer (exceptio) were filed, a trial ensued. But further in the Edict there appears a veiled reference to a different and perhaps earlier remedy involving a decree of the praetor:

“(2) The Praetor says, ‘where any act has been committed for the purpose of fraud’. These words have a general application and include every kind of fraud which is committed, as well as every alienation and every contract. Therefore, everything that is done for the purpose of committing fraud, no matter what it may be, is considered to be revoked by these words, for they have a broad application…”(emphasis added)


This is a possible reference to a decree of the praetor issued in summary proceedings which rendered transfers or acts done in fraud of creditors “revoked”, which “revocation” possibly was a preliminary order to then be followed by an action. Another reference can be found in the Institutes of Justinian:

“ Similarly, if a person conveys away his property in fraud of creditors, the latter, on obtaining from the governor of the province a decree resting in them possession of the debtor’s estate, are allowed to avoid the conveyance and sue for the recovery of the property; in other words, to allege that the conveyance has never taken place, and that the property consequently still belongs to the debtor.” (emphasis added)

It would appear that there was both a preliminary decree of rescission, which revoked the transfer, and then, at least in some cases, a separate action to recover the target property. This remedy was known collectively as the restitutio in integrum (restitution or restoration to previous condition) ob fraudem (because of fraud). Either one or more creditors, or the curator bonorum as representative of the creditors, could request issuance of this restitutio decree and the praetor would then conduct summary proceedings to determine whether the elements of a fraudulent conveyance, or other action done to “disadvantage creditors”, were shown. If a proper showing were made the decree (at least in some cases) would issue extra ordinem revoking the target transfer.

It is less clear in the Classical Period whether this restitutio decree was self-enforcing, or required either in some cases, or perhaps in all cases, another lawsuit or decree against the party in possession of the target asset to obtain actual return of the property. Commentators have debated whether in the Classical Period rescissions of fraudulent transactions were always accomplished by restitutio decree, sometimes by a combination of decree and/or action, or always by action. It has been noted in commentary that Ulpian, the most quoted of all jurists in the Digest, concerning fraudulent conveyances never speaks directly of the avoidance “action”, but only about the Edict or, in some cases, an actio in factum (action referred to a iudex on the facts); this has been thought to be some support for the theory that rescissions were done by decree alone, or possibly by the Edict alone, in the Classical Period. In some circumstances it appears the praetor would also issue an interdict (interdictum), like an injunction or turnover order, restoring possession of the target property to the creditors before trial. An interdict may have issued where the crucial question of fraudulent intent in the transfer was obvious or where segregation of assets was necessary in order to preserve the right to rescind (and refund the price) , or such as where the target asset was still segregated and identifiable.

In other circumstances the praetor could decline to issue an interdict, but instead referred the parties to an actio in factum for trial before a iudex. We have several specific references to this remedy of actio in factum or “action on the case” in the Digest, such as where what is sought to be avoided would resemble a preference, where investigation and evidence is needed over whether a transferee is entitled to recoup expenses from profits obtained on the transferred property or where the debtor is accused of dissipating assets that cannot be recovered and the action serves as a form of punishment. It would seem that this remedy of actio in factum was particularly appropriate in cases where the crucial issue of intent was disputed , and/or where the circumstances were not so obvious that intent could be presumed. However, this is largely conjecture and general statements cannot be made with certainty for several reasons, including that these portions of the Digest were probably the subject of heavy interpolation when assembled some centuries following the Classical Period and it is believed that the practices and procedures of resitutio decree, interdict and action which prevailed during the Classical Period were later combined into a single remedy during the era of Justinian. Our understanding of the procedures in this area prevailing in the Classical Period is, therefore, poor at best.

It has been argued by some commentators that the avoidance action could only take place after the bonorum venditio sale had already occurred. But the better reasoned view is that the decree or the action (or both) could still be brought by the curator or creditors at any time, before or after the bonorum venditio sale, or even by the buyer (bonorum emptor) after the sale where the avoidance rights had not been specifically reserved to the creditors.


VI. Later Innovations and Justinian’s Digest

During the reign of Antonius Pius (circa 138-161 CE) there emerged some refinements concerning Roman insolvency law that deserve mention. The most important was adoption for this field of the cognitio extraordinaria system which gradually changed the method for collection of obligations from the bonorum venditio , which had resulted in a selling up of all of the debtor’s assets, to a more limited and efficient method of debt collection. We have already seen that under a senatusconsultum (decree of the Senate) of unknown date a clara persona (an illustrious person, dignitary) could avoid the severity of bonorum venditio as the authorities would empower a curator bonorum to sell only those limited portions of the debtor’s assets as necessary to pay debt. Similarly, under the cognitio system, the magistrate referred to “execution clerks” a judgment or other liquidated obligation, after a reasonable period. These clerks, under the magistrate’s supervision, would grant the creditor a lien and seize portions of the debtor’s property under a formula of sequential execution, only as necessary to satisfy the debt. Execution started with cash, then movables (excluding slaves, implements of agriculture and oxen), and, should these prove insufficient, land and ultimately claims and choses in action. The seized items would, after two months, be sold seriatim at auction, any higher ranking or existing lien paid, expenses deducted, and the balance of proceeds paid to the creditor(s) in satisfaction of the debt, with surplus, if any, returned to the debtor. The creditor himself could bid his claim at the auction with the price to serve in lieu of proceeds, or if the sale were prevented by debtor action, the title of executed goods vested in the creditor(s). Such a system of execution had obvious parallels to our modern one. It is presumed that voluntary insolvency proceedings under cessio bonorum continued through the following centuries with its many parallels to the modern insolvency laws of most European countries, as well as to our own. Imprisonment for debt (except in narrow circumstances) was finally abolished entirely under the reign of Constantine (circa 320 CE).

However, the period of the great classical jurists was ending and relatively little is known about innovations in Roman law in the approximate three centuries between the writings of the jurists mentioned in the Digests, and the compilation of these into the Digests of Justinian (534 CE) . Of course, in this period Rome’s empire began to crumble and its ability to maintain any rule of law, at least in the western half of the empire, progressively diminished until the final collapse circa 476 CE. For the next approximate 1400 years laws in the West regarding indebtedness retreated into relative barbarism and it was not until the early 1800s that a similar degree of enlightenment again prevailed. However, much of the genius of Roman law survived as the Corpus Juris Civilis, comprised of Digests, Institutes, Novels and Code, collected by the Byzantine Emperor, Justinian circa 534 CE. From Byzantium these preserved foundations survived a long medieval winter and eventually spread again throughout Europe, forming the basis for much of the law of Western Civilization even today.

To this good news some bad news must be added concerning Justinian’s collection and codification of Roman law. In 529 CE, Justinian empanelled a commission headed by his eminent minister and jurist Tribonian and comprised of another 16 of the most eminent lawyers and professors of his day. Their commission was not to compile a history of Roman law but to winnow down the writings of the jurists from the Classical Period into an organized and definitive statement of the law, as it existed in Justinian’s time. In so doing much of the original work of the classical jurists was discarded or destroyed as redundant, obsolete or moot. Reportedly, only about five percent of the original material was preserved for the compilation. Moreover, further commentary upon these works was forbidden and all points of doubt were to be settled by imperial decree. Much nuance was lost since the practice in the Classical Period had been to openly debate about unsettled issues or finer points of the law, yet only a single view on most subjects was adopted into the Digests. Worse yet, it is believed that in writing the passages in the Digest the Justinian commissioners often resorted to interpolation and abridgment of the classical works. Consequently, any historical interpretation of the law of Rome in the Classical Period, such as this article, which depends in any substantial part on the Digests, must contain a disclaimer. We simply cannot reconstruct with much certainty the law of the Classical Period by viewing through this distorted glass. We cannot be certain that what was written by Justinian’s commissioners in the Digests was, in fact, what was actually written by the classical jurists. Since so much of the classical works were discarded or destroyed, there is little to compare to, and divining which of the passages in the Digests were recorded verbatim and which were heavily interpolated, is an uncertain business at best.


VII. Conclusion

It has been said that Rome’s greatest legacy to mankind is not her Latin language, from which Italian, French, Spanish and other languages are based, and from which our own English borrows heavily, nor her soaring architecture, which is often imitated although seldom surpassed, nor even her systems of government, engineering, literature and art, which have been admired through the centuries. It is instead Rome’s development of law as a science, which has made the single greatest imprint on the modern world. As we have seen, over a period of some six hundred years Rome’s laws dealing with insolvency evolved from the most brutal and primitive to a level of practical sophistication and subtlety not again approached until only two centuries ago. We have seen that many of our “modern” principles of ratable distribution among creditors and enlightened “fresh start” for the honest but unfortunate debtor had, in fact, many parallels in ancient Roman times. We have seen how the many artful dodges used by wily debtors to avoid creditors, or to favor friends and family at the expense of creditors, were met with an avoidance law that had all or nearly all of our modern breadth, reach and flexibility. We have seen that as the ancient Roman economy became more dependent on credit, so did the laws adapt to make liberal extension of that credit a more predictable and reasonable proposition for both borrower and lender. We have seen how laws involving debt inevitably become entangled in politics, and how the interests of both borrowers and lenders alike will always ebb and flow with the political tides. So this latest ebbing of the tide in favor of creditors that we see with our recently amended Bankruptcy Code is no more now the last word than it has ever been. Our laws regarding insolvency and debt were borrowed from Ancient Rome to a far greater degree than is generally acknowledged. Those who study these legal principles, and who practice in the legal adjustment of debtor-creditor relations, would do well to remember and honor these ancient precedents.

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Footnotes:
Theodor C. Albert is a United States Bankruptcy Judge for the Central District of California. The author wishes to extend his thanks to the many people who assisted in the writing and researching of this article; particular thanks is owed to The American Academy in Rome for its hospitality and resources generously given in this effort, to Peter O’Neil for help with Cicero, to Sassan Masserat and Tobias Sperlich for translations, to my wife Deborah G. Albert, John Stephenson and others for editing, and to my former partners at Weiland, Golden, Smiley, Wang-Ekvall & Strok, LLP., for sustaining me during my sabbatical.
S. 256 was signed into law by President Bush April 20, 2005 with an effective date for most of its provisions of October 17, 2005.
© Reprinted with permission of the California Bankruptcy Journal
Charles Jordan Tabb, “The History of the Bankruptcy Laws In the United States” 3 Am. Bankr. L. Rev, 5, Spring 1995; but see R.H. Helmholz “Use of the Civil Law in Post Revolutionary American Jurisprudence”,66 Tulane Law Review 1649 (1992)[a study recognizing frequent recourse to Roman law by early American jurists].
Sir William Blackstone so acknowledged in his Commentaries on the Laws of England, Second Book, Chapter 31,Section X (1766)
Jean Andreau, Banking and Business in the Roman World, Cambridge University Press, (1999) 9-29, 139-154
See e.g. David Johnston, Roman Law in Context, Cambridge University Press, (1999) 111; Andreau, supra note 5, at 139-154.
This was not, of course, the result of any master plan so much as it was the consequence of periodic liquidity and debt crises (See Andreau, supra note 5, at 102-106 and discussion infra) as well as a natural reluctance of wealthy Romans, who frequently borrowed from each other, to enforce the more drastic of remedies against fellow aristocrats. There may, in contrast, have been a persistent willingness to exact the harshest of penalties for default from borrowers of the lower classes. See, J.A. Crook, Law and Life of Rome 90 B.C.-A.D 212, Cornell Univ. Press (1967) at 174.
The variations can be attributed to the fact that we have only fragmentary material from the archaic Latin available. Most of what has been reconstructed piecemeal by modern scholars involves interpolation from obscure and sometimes conflicting works of the ancient commentators who wrote centuries after the Twelve Tables. See Barry Nicholas, An Introduction to Roman Law, Clarendon Law Series, Oxford University Press (1961) at 15.
The “thirty days of grace”, of course, appears (coincidentally?) in many statutes even today. See e.g. 11 U.S.C.§108(c)(2), 15 U.S.C.§1692g(a) and 19 U.S.C.§1315(d).
“Market days” or nundinae are reckoned to be from beginning to end a nine day period. If the first market day is counted as the beginning, this period of three market days should be, at a minimum, about 17 days. Aulus Gellius, Noctes Atticae ,(Translation by John C,. Rolfe), Vol. III, Book XX,1.,39-50, The Loeb Classic Library (1928) , n.3 at p.424.
In some translations there is here a specific reference to the debtor’s body. See e.g. “Ancient History Sourcebook”, http://www.fordham.edu/halsall/ancient/12tables.html.; Andrew Stephenson, A History of Roman Law., Little Brown & Co., (1912) at 128.
In other translations there is an additional reference to selling the debtor as a slave “across the Tiber”. See e.g. Translation by Allan Johnson, Paul Coleman-Norton and Frank C. Bourne, “The Avalon Project at Yale Law School”, with permission from University of Texas (1961).http://www.yale.edu/lawweb/avalon/medieval/twelve_tables.htm and Stephenson, supra note 11, at 128.
Translation from E.H. Warmington, Remains of Old Latin III, The Loeb Classic Library (1938). For translation including some bracketed material see Stephenson, supra note 11, at 128.
See e.g. Johnston, supra,note 6, at 109; Blackstone,supra note 4, at Ch. 31, section X
Aulus Gellius, circa 130-180 A.D., Roman lawyer, judge and member of a noble Roman family.
Gellius, Noctes Atticae .XX.1,supra note 10, at 425; See also S.P.Scott transl, The Civil Law in Seventeen Volumes, commentary following Table III of The Twelve Tables, Vol.1 p. 64, n.1, The Central Trust Co. (1932).
Gellius, supra note 10, at 427.
Gaius, Institutes, 4.21 (Gordon and Robinson trans.,Cornell Univ. Press, Ithaca 1988). Gaius discusses manus injectio as part of a general discussion regarding forms of action or pleadings. However, his description of the actual formalities of the remedy under the Twelve Tables suggest that it may have been sufficient for the creditor to simply proclaim: “ ‘Because the court has awarded that you’ or’ because you are condemned to give me ten thousand, in that you have not paid, I accordingly lay my hand upon you for the ten thousand of the judgment’ at the same time taking hold of some part of his body…” Id. at 4.21. Some scholars surmise that self-help was only permitted following a judgment debt given the Romans’ low regard for self-help generally. C.J. Bannon,”Self-Help and Social Status in Cicero’s Pro Quinctio”,Ancient Society 30(2000) at 72 and 76.
Gaius, Institutes, Id. Gaius (circa 110-179 C.E.) was a legal commentator and historian.
Stephenson, supra note 11. at 483-84;
Stephenson, Id .; William Smith, A Dictionary of Greek and Roman Antiquities, ” Nexum”, London (1875) with explanatory article by George Long at 795-798
In the early period there seems to have been a reluctance to sell a Roman citizen as a slave within the boundaries of the city of Rome. A. Watson, Rome of the XII Tables (Princeton Univ. Press 1975) at 81. However, any reluctance to holding another citizen in bondage within the city was apparently not universally shared. See discussion regarding nexum. Infra, part II B.
Smith, supra note 21, at 795-798.; Johnston, supra note 6, at 109; See also M.W. Frederiksen “Caesar, Cicero and the Problem of Debt”,The Journal of Roman Studies, Vol. LVI(1966) at 129, n.11.
This question is made more confusing in that in many translations of Table III the reference to enslavement mentions that the debtor could be “sold across the Tiber”, implying an immediate sale to third parties, perhaps in distant lands. The answer may lie in the Roman legal doctrine that full legal title (“quiritary rights”) to the debtor’s goods did not immediately pass upon forced execution sale , but only a kind of inchoate title and possession subject to “uscapio” [prescription] which title could only be fully perfected after a period of two years. This was the doctrine as described some centuries later by Gaius. Institutes,supra, note 17,at 3.80. On the other hand, slaves could be sold in court if the buyer asserted full quiritarian ownership and the seller agreed or remained silent. Gaius, Id. at 2.24. Whether this applied to “addiction” proceedings over the debtor’s person under the Twelve Tables is not clear.
See also W. Buckland, A Textbook of Roman Law From Augustus to Justinian, Cambridge Univ. Press(1921) at 638; Gaius, Institutes,3.189 and 199; Crook, supra note 7, at 173
From the context it appears that this official performed not only the weighing ceremony but also acted like a notary. See Gaius, Institutes, 2.107.
Stephenson, supra note 11, at 93; Cf. Gaius, Institutes, 1. 118-122.
Servius Tullius (reign 578-534 BCE) was an early king of Rome of Etruscan origin who instituted a number of reforms in law that created a census, proclaimed orders (classes) among the citizens of Rome and formalized certain legal procedures.
Stephenson, supra note11, at 92-93.
See Crook,supra note 7, at 61
Smith, supra note 21, at 795-98.
Titus Livius, Roman historian, circa 64 BCE to CE 17, known to the modern world as “Livy”.
Livy: History of Rome, VIII, 27 (Loeb Translation 1926).
Id. at 27
Smith, supra note 21, at 795-98 ; see e.g. Cicero, Pro Flacco,20; Cicero, pro Quinctio, 49. Marcus Tullius Cicero, 106 - 43 BCE was a lawyer, orator and statesman at the end of the Roman Republic. See also Sallust, Conspiracy of Catiline, 33 (Watson transl.,Harper&Bros. New York,1867). Gaius Sallustius Crispus, 86-34 BCE, was a historian, praetor and tribune, known to the modern world as “Sallust”.
E. Metzger, A Companion to Justinian’s Institutes, Cornell Univ. Press (1998) at 120.
Gaius,Institutes, 3.79
The curator bonorum could, apparently, also be appointed from outside the creditor body. Dig.42.8.4 (Ulpianus On the Edict, Book LXV). ). Dometius Ulpianus (“Ulp.) (circa 170-223? CE) known as Ulpian was a Roman jurist of Syrian extraction who wrote approximately 80 books of commentary on the juris civilis and is the most quoted of all jurists in the Digests
Cicero, pro Quintico, 84;see also Dig..42.4.1 (Ulp. On the Edict, Book XII). Concerning limitations inherent in the use of Justinian’s Digest, see discussion at part VI, infra.
Dig. 42.8.2.2 (Ulp. on the edict book LXV)
Dig. 42.5.15 (Ulp. on the edict book LXII) and 42.8.2 (Ulp. on the edict LXV);cf. Code Just. 7.71.8; Max Kaser, Das Römische Privatrecht, Vol. 2, §255 (München 1975) at441.
Gaius, Institutes, supra,3.77-79; Kaser, supra note 41, Vol. 2 at 305.
Buckland, supra note25, at 639; Crook, supra note 7, at173-174. In the event identical dividends were bid there were rules to determine which bid prevailed. Large creditors were preferred over smaller ones, creditors over relatives and relatives over strangers. Dig. 42.6.1 (Gaius On the Edict Book XXIV). It is my conjecture that this must have meant that many such sales were conducted on credit terms to the buyer as otherwise there would have been no need to so distinguish between identical cash offers. I further guess that bids on a dividend basis based upon credit of the buyer may have been a practical necessity to get bids up since it probably was difficult in antiquity, with comparatively primitive means of communication and travel, to have had an early inventory and valuation of all of the debtor’s properties in order to facilitate a cash auction. Instead, buyers who were creditors or relatives, and so may have been generally more informed about the estate, “took their chances” that their bids, based on dividends to be eventually paid, would work in their favor. But even if a large creditor’s bid proved eventually “too low”, still the proportionate impact of his credit bid on other creditors was lessened as compared to an even lower cash deal.
Max Kaser, Das Römische Zivilprozessrecht, C.H. Beck (München 1966) at 305-306; Dig. 42.8.1.2(Paulus On the Edict, Book LVII)
Kaser, supra note 44, at 306; Dig. 42.8.2(Ulp. On the Edict Book LXV)
Dig. 42.5.14 (Paulus on the edict book LIX; also Dig. 42.8.2 (Ulp. On the edict book LXV). Compare to 11 U.S.C. §108.
Gaius, Institutes, 4.35.
Dig. 42.5.9.3,4 and 5(Ulp. On the Edict, Book LXII)
Kaser, Das Römische Privatrecht, supra note 41, §255 at 331;cf. Code Just. 7.72.6-10.
“Privileges” were recognized for, among others things, taxes ( See,Pliny, Letters and Panegyricus in Three Volumes, Vol.2, Book X, 108-109 (translation by B. Radice) Harvard Univ. Press 1969));Dig. 42.6.19 (Marcianus, Rules Book V)); dowries (Nicholas, supra note 8, at 89; Dig.24.3.24(Ulp. On the Edict, Book XXXIII) burial expenses (Dig.42.6.2(Ulp, on edict, book LXIII)), identifiable deposits with a banker (Dig.42.6.9.2(Ulp. on the edict book LXIII)) and what must have been the functional equivalent of our modern loans enabling improvements or mechanic’s lien claims (Dig.42.6.9.1(Ulp On the Edict Book LXIII). Concubines and minor children of the debtor were exempt from execution. Dig. 42.6.23(Paulus Decisions Book I) As discussed infra note 53, late claims were only paid from later proceeds, which mirrors our concept of tardily filed claims. Compare to 11 U.S.C. §§ 507 and 726.
Crook, Law and the Life of Rome 90 B.C.-A.D.212, supra note 7 ,at 174.
Cicero, pro Quinctio, 49-50.
Kaser, Das Römische Zivilprozessrecht, supra note 44, §96 at 515.
Dig. 42,8.5 (Julianus, digest, XLVII)
Compare 11 U.S.C.§303(h)
Johnston, supra note 6, at 109-110.
Id. at 78; Dig. 42.4.7 (Ulp.On the Edict Book LIX)
See Gaius, Institutes, 2.154; Johnston, supra note 6, at 110. Professor Johnston notes that this term infamis is not quite synonymous with “infamous” as used today, but rather needs to be understood in its context. The Romans, particularly the elite, were very conscious of their social status and infamia represented social and political death. For a more detailed discussion of infamia, and its consequences, see discussion on debt reform, infra part III A. See also, Greenridge, Infamia, Its Place in Roman Public and Private Law (William Hein &Co., Inc. Buffalo 2002) at 136-137.
Johnston, supra note 6, at 109-110. The Republican period is generally regarded as ending with the crossing by Julius Caesar of the river Rubicon, 49 BCE, the resultant civil war and dictatorship of Caesar.
Dig. 27.10.5 (Gaius On the Provincial Edict, Book IX ); Crook, supra note 7, at 177-178; Buckland, supra note 25, at 640; Nicholas, supra note 8, at 177-78.
Catherine Edwards, The Politics of Immorality in Ancient Rome, Cambridge Univ. Press (1993) at 185; M.W. Frederiksen “Caesar, Cicero and the Problem of Debt”, The Journal of Roman Studies, Vol.LVI (1966) at 128.
However, as in the centuries since, the power of office inevitably attracted wealth, prestige and opportunity for further advancement.
The Roman “equestrian order”, reportedly were descendants of the early Roman cavalry, which represented the ancestral upper classes of wealthy Romans engaged in business pursuits, second in privilege only to the patricians.
Erich Gruen, The Last Generation of the Roman Republic, Univ. of Calif. Press, Berkeley (1974) at 121 et. seq.
Edwards, supra note 61, at 183. Professor Crook asserts the minimum for membership at property worth was not less than 1,000,000 sesterces, but this number may pertain to a later period. Crook,, supra note 7, at 64.
Frederiksen, supra note 61, at 128; Edwards, supra note 61, at 183.
Gruen, supra note 64, at 31 and 68
Seneca, de Beneficis, I.4.2 Lucius Annaeus Seneca, 4 BCE.-65 CE, playwright, orator and philosopher. See also, Cicero, de Officiis,2. 54,56 and 61-62(translation Walter Miller, Loeb Classic Library ed.,Cambridge, Harvard U. Press, 1913) Edwards, supra note 61, at 183
See e.g. Cicero, ad Atticum, VII.3,6-7 and 11 [letter 126], VII.8,5[letter 131] and VII.18,4[letter 142] (transl. Shackleton Bailey, Cicero Letters to Atticus Vol. II, Harvard Univ. Press, Cambridge 1999, Loeb Classic Library ed. at 197, 201, 219 and 253-54, respectively);ad Atticum XVI.2, 1-2[letter 412]XVI.15,5[letter 426](Shackleton Bailey transl. supra, Vol. IV at 319-20 and 371-72, respectively; ad Atticum VII,XVII and XXXII (trans. E.S. Shuckburgh, The Harvard Classics Vol 9; Letters of Marcus Tullius Cicero,etc, P.F.Collins &Sons New York 1909) at 97, 138 and 179-80, respectively; Cicero ad Familiares XIV, 2,3 and I,5; Crook, supra note 7, at 172
The aediles were magistrates responsible for maintenance of temples and public buildings, and for organizing, at their own expense, the Ludi Romani, which were games and festivals held for public relations. Roman aristocrats in “their year of aedileship” competed against each other in hosting ever more lavish games for public amusement. Cicero, de Officiis, VII. 57-59.
Plutarch, Parallel Lives:The Life of Julius Caesar, 7,1-4, Loeb Classic Library (1919). Mestrius Plutarch, circa 45-125 C.E., was a Greek historian and biographer.
Id. at 5,8-9; Dio, Roman Histories, 37.8.2(E. Cary trans. Loeb Classic Library, Harvard U. Press 1914-27). Cassius Dio, 155-229 CE, was an historian who wrote a history of Rome in 80 volumes; See also Frederiksen, supra note 61, at 130 and Edwards, supra note 61, at 183.
Frederiksen, supra note 61, at 128-130.
A person branded with infamia could not appear for others in a lawsuit or hold public office. Dig. 3.1.1.5 (Ulp. On the Edict, Book VI). Persons branded with infamia were classed with dishonorable discharges from the army, perjurers, procurers, robbers and frauds. Dig. 3.2.1 and 4 (Ulp.on the edict Book VI)
Frederiksen, supra note 61, at 128; Greenridge, supra note 58, at 135.
Cicero, pro Quinctio, 49-51.
Cicero, in Catilinam II, 18; Sallust,supra note 35, at 35; Gruen, supra note 64, at 425.
Lucius Cornelius Sulla, 138–78 BCE, seized the dictatorship of Rome, ruthlessly suppressed and murdered his political opponents and distributed many of their lands to his military and political supporters.
Gruen, supra note 64, at 424-425
Id. at 427; See also Andreau, supra note 5, at 103
Dio,supra note 72,at 37.25.4.
Gruen, supra note 64, at 425
Sallust, Conspiracy of Catiline, supra note 35, at 5,11-16,21,34,37; Cicero, in Catilinam II.7-8,10 (Yonge trans. The Orations of Marcus Tullius Cicero, H.G.Bohn, London,1856)
Sallust,supra note 35, at 33 and 35
Marcus Porcius Cato, 95-46 BCE, was a politician, statesman and stoic. The conservative defenders of the status quo are often referred to by historians as the optimates ( literally ”best men”).
Cicero, de Officiis,II. 22-23 and 78-85.
Gnaeus Pompeius Magnus, known as Pompey, 106-47 BCE, consul, general and statesman, rival to Caesar and Crassus and member with them of the First Triumverate, 60-54 BCE.
Fredriksen, supra note 61, at132.
Of “soldiers and money” said Caesar, if you lack one you will soon lack the other. Dio. 42.49,5; See also Frederiksen, supra note 61, at 132
Dio,supra note 72,at 41, 17, 1-2; Plutarch, supra note 71,at 35; Cicero ad Atticum, VII.15[letter 139](Shackleton Bailey transl.,supra note 69, Vol.II at 245.
Frederiksen, supra note 61, at 132; See also Andreau, supra note 5, at 103-104
Frederiksen, supra note 61, at 132
Dio, supra note 72,at 41.37
Id. at 42, 22-23
Id. at 41.37-38; Julius Caesar, The Civil War,III,1 (Trans. J.M.Carter, Aris&Phillips, Warminster,1993); Plutarch, supra, 38; See also, Frederiksen, supra note 61, at 133.
Dio,supra note 72,at 41.38
I see a parallel to our modern jurisprudence in its application under 11 U.S.C.§506(b) of payments made postpetition toward principal, not interest, for the undersecured creditor. See e.g. United Savings v. Timbers of Inwood Forest, 484 U.S. 365,372-74, 108 S.Ct. 626, 631-35(1988).
Dio, supra note 72, 42.51; Suetonius, The Lives of the Caesars; The Deified Julius, 42 (J.C.Rolfe trans.,Harvard Univ. Press 1920). Gaius Suetonius Tranquillus, 75-160 CE was a Roman historian and administrator.
We read of the proposals of patrician politician and tribune Publius Cornelius Dollabella for full forgiveness of both debt and rents( Dio,supra,42.29) and of the refusal of Marcus Caelius as praetor to enforce Caesar’s measures in favor of outright debt and rent forgiveness. Id. at 42.22-23. See also, Friedricksen, supra note 61, at 134.
Cicero, de Officiis,2.78-79
Frederiksen, supra note 61, at 134.
Among those attributing authorship of cessio bonorum to Julius Caesar is Professor M.W. Frederiksen, who lays out the case for Caesar in “Caesar, Cicero and the Problem of Debt”, supra note 61, at 137-140. Among those for Augustus include Professor Walter Pakter, who makes the opposing case in “The Mystery of Cessio bonorum”, 22 Index, (Napoli 1994) at 325
Dig. 42.3.9 (Marciannus, Institutes, Book V)
Crook, supra note 7, at 176-78; See Dig. 2.14.7.17 and 19 (Ulp. On the Edict Book IV); Seneca, de Beneficiis, 5.21-22; Apuleius, Apologia, 75(H.E.Butler trans. Clarendon Press, Oxford 1909) at 122; See also, Pakter, supra note 102, at 324. Professor Kaser believed that, at least in later periods, the composition agreements did preserve the debtor “from disgrace”. Kaser, supra note 44,§62 at 317 However, Professor David Daube supposes that, absent payment in full, a ruse was necessary to escape infamia., An example consisting of repeated partial payments, followed by remissions of these sums as “gifts”, is discussed at Dig. 46.3.67(Marcellus Digest, Book XIII). Daube, Roman Law, Linguistic, Social and Philosophical Aspects (Edinburgh U. Press 1969) at 93-94.
Kaser, supra note 44, at 517; see also Dig. 42.3.8 (Ulp. On the Edict Book XXVI)
Dig. 4.8.17 (Ulp. On the Edict, Book XIII). This approached but did not completely equate to the concept of our modern discharge.
Dig. 42.3.4 (Ulp. On the Edict, Book LIX) and 42.3.7 (Modestinus, Pandects. Book II); Code Just. 7.72.3.
Code Just. 2.12.11 (Alex. to Herennius); Kaser, supra note 44, §§61-62 at 316.
“Good faith” has been long an implicit requirement in modern bankruptcy proceedings (see e.g. In re Hannigan, 409 F. 3d 480(1st Cir. 2005) and fraudulent misuse of bankruptcy for improper purposes has been a basis for dismissal or other relief. See e.g. In re Marsch, 36 F.3d 825,828(9th Cir.1994). “Bad faith” is now also expressly given as a statutory basis for dismissal. 11 U.S.C.§707(b)(3)(A) and “good faith” a prerequisite for reorganization in chapters 11 and 13. 11 U.S.C.§§1129(a)(3) and 1325(a)(3) and (7)
Pakter, supra note 102, at 335 citing to P. Ryl. 75 reprinted at Select Papyri II (Loeb 1934) and Johnson, et al., Catalogue of the Greek Papyri in the John Rylands Library,II (Manchester 1915) at 25-26.
See e.g. 11 U.S.C. §§523 (a)(2) and 727 (a)(2) through (7)
Pakter, supra note 102, at 335.
This would have been Antonius Pius who reigned as emperor from 138 to 161 CE.
“Pharmouthi” is the name of a month on the ancient Egyptian calendar.
Translation by A.S Hunt and C.C.Edgar, Select Papyri II, Loeb Classic Library, Harvard Univ. Press
( London 1934) at 201; See also P. Ryl. 75 at Johnson, et al., supra note 110, at 25
P. Ryl. 75 , Johnson et al., id. at 26
See e.g. Fredriksen, supra note 61, at 135; see also Johnson, et al.,supra note 110, at 24
Fredriksen, supra note 61, at 135.
Pakter, supra note 102, at 328
See e.g. Frederiksen, supra note 61, at 135; W.W.Buckland, Textbook of Roman Law, (Cambridge 1932) at 645 n. 2; Kaser, Das Römische Zivilprozessrecht, supra note 44 , §61 at 316
Yet another parallel to our modern law emerges. Most taxes, and damages caused by breach of fiduciary duty (which one imagines the loss of bailed property might have been) cannot be discharged. See 11 U.S.C.§ 523(a)(1) and (4).
We cannot speak of “discharge” as a permanent forgiveness as it is understood in modern law. Rather, it is likely that unless the hard luck prerequisites were shown the debtor in cessio bonorum remained subject to immediate collection action on the enumerated types of claims, even if repose were given from all other creditors until sufficient additional property were acquired.
Pakter, supra note 102, at 329-30; see also Crook, supra note 7, at 175, n. 177.
Dig. 42.3.4 (Ulp. On the Edict book LIX). Even though Ulpian believed that “discharge” did not result from cessio bonorum, he acknowledged that other jurists, Sabinus and Cassius, believed that no further creditor action could be taken at all post assignment, which is the practical equivalent of a discharge. Moreover, Ulpian opined that a second collection effort could only arise under limited circumstances, if the debtor acquired something more than property of “trifling” value, and then out of “compassion” the debtor should still be left with enough for monthly or annual payments for support. Dig. 42.3.6 (Ulp. on the edict, book LXIV.
There is some debate as to how widespread was the use of cessio bonorum in ancient times because of a paucity of reference to it in ancient texts. Professor Pakter’s view is that scarcity of reference may mean that it was quite common and therefore, unlike the unusual, merited little comment. See Pakter, supra note 102, at 324-325. Professor Fredriksen believes that that older measures of bondage for debt probably persisted in parallel well after the Lex Julia. Fredriksen, supra note 61, at 135, n. 57 and 140. There are certainly references in original sources to the persistence of bondage for debt from authors who lived at the time of or in the decades or even centuries following enactment of the Lex Julia. See sources at note 35, supra. Moreover, to the extent cessio bonorum was not used in a case, actions in addictio were still available as an alternative to, or in addition to bonorum venditio. Smith, supra note 21, at 795-98; Crook, supra note 7, at 173. Why anyone would allow themselves to become subject to either of these harsher remedies when cessio bonorum was available as an alternative, is unclear. Praetor discretion to deny relief, or perhaps the “hard luck” prerequisite, are possible explanations.
Imprisonment for debt was not finally abolished until 1869 in England and the mid 1840s in the United States. Until only a few decades prior, debtors were still subject to legally sanctioned mutilation, pillorying and in some cases, even the death penalty. Tabb, “The History of the Bankruptcy Law in the United States”, supra note 3, at 10 and 16.
Cicero, ad Atticum,X, AI.1, Shuckburgh transl., The Letters of Cicero, Vol. 1 (London 1920) at 14; ad Atticum I.1,3[letter 10] Shackelton.Bailey transl., Cicero Letters to Atticus, Vol.I (Loeb Classic Library, Harvard Univ. press,Cambridge 1999) at 53.
Apuleius, Apologia, 75, Butler transl, supra note 104,at 122
Cicero, ad FamiliaresV ,Shuckburgh trans., supra note 69, at 91-92
One source of Roman law was the Praetor’s Edict. At the beginning of his year of office a praetor would proclaim a series of policies defining the circumstances under which he would grant a remedy to litigants. Although in theory each praetor’s edicts were independent of his predecessors, in practice many edicts were carried over from year to year (edictum tralaticum) with successive praetors making only such additions or deletions as seemed necessary. Nicholas, supra note 8,at 21,n. 2.
Dig. 42.9.1 (Ulp. On the Edict, Book LXVI), S.P Scott transl., The Civil Law etc in Seventeen Volumes, Vol. 9 (The Central Trust Co. Cincinnati 1932) at 271. I have cited the Digest throughout using the S.P.Scott translation and numbering system except where noted, not because Scott’s is regarded as the best available translation, but because most law libraries will have this version. Please note that in translations other than Scott’s this topic of fraudulent conveyances is referred to as Title 8 (not 9).
M. Radin,” Fraudulent Conveyances in Roman Law”, 18 Virginia Law Review 2 (1931) at 110-111.
Introductory description of Title 9 in Dig. 42. as appears in Scott transl., supra note 130, at 271.
See 11 U.S.C.§§548 and 544(b) which incorporate rights to avoid fraudulent conveyances under state laws, usually as described under the Uniform Fraudulent Transfer Act adopted in California as Civil Code §§3439, et seq. Conveyances are “constructively fraudulent” (intent need not be established) when the transfer is made without fair consideration at a time when the debtor is insolvent or becomes insolvent as a result of the transfer. See e.g. ,TWM Homes, Inc. v. Atherwood Realty & Invest Co., 214 Cal.App. 2d 826, 843 (1963).
Dig. 42.9.1 (Ulp. On the Edict Book LXVI). Another parallel to our modern procedures appears in former 11 U.S.C. §548, which provided for avoidance of fraudulent transfers made within one year of the petition. This period has been changed to two years in the new Bankruptcy Abuse Prevention and Consumer Protection Act.
Radin transl., supra note 132, at 112.
See e.g. S. P.Scott trans., supra note 131, at 271. Scott translates the Latin phrase as “within the year in which he has a right to institute such a proceeding…” In Latin it is: “Ait praetor: ‘quae fraudationis causa gesta erunt cum eo, qui fraudem non ignoraverit, de his curatori bonorum vel ei, cui de ea re actionem dare oportebit, intra annum, quo experiundi potestas fuerit, actionem dabo idque etiam adversus ipsum, qui fraudem fecit, servabo.’”(emphasis added) A third alternative translation of the key passage, neutral on the issue of discovery, would read “…I shall grant permission for a suit to the curator bonorum or to the person who ought to be granted permission concerning this matter, within a year, during which time there will be permission to put the matter to the test…”
Dig. 42.9.6.14 (Ulp. on the edict book LXVI). Hence, the door is left open to arguments that the period commenced from some unfixed date such as discovery of the facts or the post petition bonorum venditio sale. See note 139.
G. Impallomeni, “Studi sui Mezzi di Revoca Degli Atti Fraudolenti nel Diritto Romano Classico”, Publicazoni Della Facoltà di Giurisprudenza XXII, (Padova 1958) at 30-37. However, Professor Impallomeni also offers as a plausible alternative theory that the avoidance action might of necessity have awaited the bonorum venditio “sale” as a more logical and efficient procedure since only at that time could the amount of deficiency facing creditors have become known. Id. at 32-39. Further, this interpretation might harmonize with the commencement of the limitations period from the date of “sale” as found at Dig. 42.9.6.14 (Ulp. On the Edict,Book LXVI). Impallomeni, supra, at 11,19 and 140. See also Kaser, Das Römische Privatrecht supra note 41, Vol. 1 at 252. Nevertheless, Impallomeni concludes, on balance, that it is more likely that actions could be commenced before bonorum venditio sales. Id. at 30-32. I think it likely that the “sale” referenced in Dig. 42.9.6.14 as the beginning of the limitations period was the bonorum vendito sale although this interpretation creates its own problems since the practical effect would have been an open-ended limitations period that could have gone on indefinitely since it is not certain when, or even if in some cases, a sale would ever be concluded; this interpretation would have meant no practical limitation at all. However, Impallomeni declares with some certainty that the bonorum venditio sale commenced the limitations period. Impallomeni, supra this note, at 68.
Dig. 42.9.10.24 (Ulp. On the Edict Book LXXIII); see also discussion at part VI, infra, regarding problems in use of Justinian’s Digests.
Dig. 42.9.3(Ulp. On the Edict Book LXVI), 42.9.4(Paulus on the edict book LXVIII) and 42.9.5(Gaius on the Provincial Edict, Book XXVI).
Dig. 42.9.15(Julianus, digest, book XLIX) 42.9.23(Scaevola, digest book XXXII) and Code. Just. 7.75.1 regarding manumission of slaves; Dig.42.9.10(Ulp. On the Edict Book LXXIII) and 42.9.17(Julianus digest book XLIX) regarding fraudulent release of debts
Dig. 42.9.6.8 (Ulp. On the Edict, Book LXVI) but see discussion above notes 149 and 157, infra.
Dig. 42.9.9 (Paulus On the Edict ,Book LXII). Yet another parallel to modern law appears as we likewise distinguish between the mediate transferee with knowledge and subsequent transferee in good faith. See 11 U.S.C.§550(a) and (b)
Dig. 42.9.10.20 and 21 (Ulp.On the Edict, Book LXXIII); but see Dig. 42.9.25.4 and 5(Venuleius On Interdicts, Book 6) limiting recovery to those crops above the ground or offspring of slaves in utero as of the transfer
J. Inst. 4.6.6
Theophilus, Par. Inst. Ad I,6.6 ( Radin transl. supra note 132, at 109)
Dig. 42.9.7 ((Paulus On the Edict, Book LVII);42.9.8 (Venuleius Saturninus, Interdicts book VI)
Dig. 42.9.6.11(Ulp. On the Edict, Book LXVI)
See 11 U.S.C.§544(b) and Moore v. Bay, 284 U.S. 4,52 S. Ct. 3(1931)
Dig. 42.9.10.6 (Ulp.on the edict, book LXXIII) (Radin transl.,supra note 131, at 118)
Dig. 42.9.10.8 (Ulp. on the edict, book LXXIII)
Dig. 42.9.10.1 (Ulp. on the edict, book LXXIII)and 42.9.16(Paulus, on responses of Papinian Book V). Such tracing of fraudulent proceeds has many analogous applications in modern law. See e.g., In re Bonham, 251 B.R. 113, 118 (Bankr. Alaska 2000)[tracing proceeds to establish ponzi scheme].
See authorities at note 134, supra..
See e.g. Brunwold v. Victor Johnson & Co.,59 Cal. App. 2d 75 (1943 )[transfer of substantially all property creates presumption of fraudulent intent];Evans v. Sparks, 170 Cal. 532 (1915 )[transfers between parent and child are scrutinized].
Dig. 42.9.17 (Julianus, Digest, Book XLIX)
See Dig. 42.9.6.8 (Ulp. On the Edict, Book LXVI); See also discussion at section V.subpart A. supra.
Dig. 42.9.6.2 and 14(Ulp. On the Edict, Book LXVI) Radin transl., supra note 132 ,at 113. For a modern case that holds for the similar proposition that refusal of an inheritance is not avoidable as a fraudulent conveyance, see In re Bright, 241 B.R. 664(9th Cir. BAP 1999). For more cases and discussion see A.J.Hirsch, “The Problem of the Insolvent Heir”, 74 Cornell Law Review 587 (1989).
See 11 U.S.C. §§549 and 547, respectively.
Dig. 42.9.6.7(Ulp., On the Edict, Book LXVI)
Dig. 42.9.10.16 (Ulp.On the Edict, Book LXIII)
I refer to the commencement of bonorum venditio proceedings as a “petition” not because that is what it was called in ancient times but only for ready comparison to modern proceedings.
Dig. 42.9.6.6 (Ulp. On the Edict, Book LXVI)
Dig. 42.9.6.6 (Radin transl., supra note 132, at 114).
Dig. 42.9..24(Scaevola’s Monograph on Public Discussion of Law, Digest Book XXXII)
Dig. 42.9.10.12 (Ulp. On the Edict, Book LXXIII)
Dig. 42.9.10.13 (Ulp. On the Edict, Book LXXIII). In modern law a transfer of property as security for an antecedent debt, if made while the debtor was insolvent and within the preference period, is avoidable. See e.g., In re Four Winds Enterprises, Inc., 94 B.R. 694,696 (Bankr. S.D.Ca. 1988)
Dig. 42.9.22 (Scaevola Opinions, Book V)
In modern law, a transfer is not avoidable as a preference unless it is made on account of an antecedent debt within 90 days of the petition, or within one year as to insiders. 11 U.S.C. §547(b).
See discussion regarding when the limitations period began, part V, subpart A and at note 139, supra.
11 U.S.C. §547(b)(3)
Dig. 42.9.1; see discussion Section V, preceding subsection A, supra.
Radin, supra note 132, at 110; Kaser, Das Römische Privatrecht, supra note 41, Vol.2 at 94-95; Impallomeni, supra note 139, at 66.
Impallomeni, supra note 139, at 158-59.
J. Inst. 4.6.6 (J. Moyle transl., Fifth Ed. Oxford 1913)
Impallomeni, supra note 139, at 14-15.
Id. at 48-50
Impallomeni, supra note 139, at 158-59.
J. Inst. 4.6.6 (J. Moyle transl., Fifth Ed. Oxford 1913)
Impallomeni, supra note 139, at 14-15.
Id. at 48-50
Impallomeni, supra note 139, at 158-59.
J. Inst. 4.6.6 (J. Moyle transl., Fifth Ed. Oxford 1913)
Impallomeni, supra note 139, at 14-15.
Id. at 48-50
Smith, supra note 21, “Restitutio in Integrum” with explanatory article by George Long at 987-88.
Impallomeni, supra note 139, at 45 ,48 and 158-59.
Id. at 45-46, citing Solazzi, La Revoca Degli Atti Fraudolenti nel Diritto RomanoVol.1, ( Napoli 1945) at 56, Karlowa,RRG,2,at 1090, Carrelli, Decretum e Sententia nella Restitutio in Integrum, Ann. Bari (1938) at 6, and Lauria, Studi Bonfante, 2, 514, et al.
Impallomeni, supra note 139, at 13-14 and 56
Dig. 42,9.10 (Ulp. On the Edict, Book LXXIII); Impallomeni, supra note 139, at 63-67, 70-71. However, Impallomeni also thinks this text of 42.9.10 was manipulated in order to unify the remedies from the Classical Period into a single revocation action in Justinian’s time.
Impallomeni, supra note 139, at 87
Id. at 73-76
Dig. 42.9.10.12 (Ulp., On the Edict, Book LXXIII), See also note 169, supra.
Dig. 42.9.10.20 (Ulp., On the Edict, Book LXXII)
Dig. 42.9.25.7 (Venuleius on Interdicts, Book VI)
Dig. 42.9.10 (Ulp., On the Edict, Book LXXIII)
Impallomeni, supra note 139, at 54, 58, 152 and 159. See also discussion about limitations of the Digest as historical record in part VI, infra.
Id. at 66
Id. at 54
See e.g. Solazzi, supra note 180, Vol. 1 at 44,56 and 73; but see Impallomeni, supra note 139 at 56-57.
Id. at 30-32, 56-57,160; see also Gaius, supra note 47, at 4.35.
The cognitio system supplanted the old formulaic system. Under the formulaic system, contested matters were divided into two stages. In the first stage the praetor defined a formula under which, if the plaintiff proved certain specified elements, a recovery would be awarded. The praetor in the second stage would then name a iudex to whom the matter was referred for trial. There was no direct state involvement in execution of the judgment. In contrast, under the cognitio system a single magistrate heard the entire matter in person or through a judicial delegate (iudex pedaneus) and the magistrate became involved in the enforcement of the decision. Nicholas, supra note 8, at 27.
See discussion part II C.,supra
See note 60, supra.
Kaser, Däs Römische Zivilprozessrecht, supra note 44, at 406-409; Kaser, Däs Römische Privatrecht, ,supra note 41, Vol.3, at 330; see also Crook, supra note7, at 178 and Stephenson, supra note 11, at 485.
See Pakter, supra note 102.at 324-25. Professor Pakter believes that cessio bonorum continued throughout the centuries following its initial enactment (circa 45 BCE) despite relatively rare mention of it in surviving sources. Professor Pakter surmises that it was so common as to merit little mention. Id. at 326. We know that cessio bonorum continued until at least 534 CE, as it is mentioned with a note of disparagement in the Code of Justinian. Code Just. 7.71.8
This period corresponds with the Classical Period. These jurists rendered written opinions on legal questions propounded by magistrates or clients. These writings were later copied from rolls into book form (codex) and still later collected (and in many cases interpolated and abridged) under Justinian into the Digests. Among these jurists, in approximate time sequence, were Ateius Capito (circa 30 BCE-22 CE), Masurius Sabinus( 1st cent.), Marcus Antistius Labeo (circa 1st cent.), Salvius Julianus ((100-169 CE), Sextus Pomponius(circa 130-165 CE), Gaius (circa 110-179 CE), Q. Cervidius Scaevola (circa 169), Papinian (circa 146-212 CE), Ulpian (193-235CE), Julius Paulus(circa 200 CE) and Modestinus(circa 250 CE). See Stephenson, supra note 11, at 278-290; Johnston, supra note 6, at 21
Id., at 21.
See note 126, supra. Imprisonment, floggings, disfigurement, pillorying and even in some cases capital punishment for debt, did not end until the early 1800s in Britain and the United States.
Tribonian (circa 490-547 CE) was a famous jurist and minister to emperor Justinian who headed several commissions which collected, edited and codified the works of the jurists from the Classical Period into the Code, Institutes and Digest of Justinian which we know today as the Corpus Juris Civilis.
See note 199.
Stephenson, supra note ,at 296
Although much of the writing of the classical jurists was destroyed or lost, fortunately a palimpsest (written-over parchment) was discovered in 1816 in Verona revealing underneath an early copy of the Institutes of Gaius.
Johnston, supra note 6,at 18.
Stephenson, supra note 11, at 298; Nicholas, supra note 8, at 34-35.
Johnston, supra note 6, at 19.
See e.g. Impallomeni, supra note 139, at 54, 58, 152 and 159; Nicholas, supra note 8, at 35, 43; Johnston, supra note 6, at 17-19.
Nicholas, supra note 8,at 1; Stephenson, supra note 11, at 7.