Testamentary dispositions in the Imperium Romanum
Report on the conference on 13–15 November 2024
The ancient Roman law of codicils responded to a demand in society for more flexibility in forming testamentary dispositions. In doing so, though, it did not replace formal Roman testamentary law, but rather existed alongside the old regulations. The conference focused on the questions arising from this coexistence regarding the motivations, practical significance, and design of the codicils. In Roman law, a codicil can be understood as a short written document typically inscribed in wax tablets.
Peter Oestmann (Münster) introduced the conference and spoke about inheritance law in the early modern period. Despite deviations from the Roman period, the term codicil can often be found in early modern sources, such as in an important 1578 town charter record, the Frankfurt Reformation. The lecture also set the thematic tone for the conference, since many of the (often formal) requirements for testamentary dispositions that it described could also be found in the course of the conference in a similar form in the Roman sources.
Topics such as the basic issues of codicil law and the codicil in its details were discussed during the conference.
Fundamental questions raised by the law of codicils
The second day saw the intensive study of ancient Roman law begin, with the first section, led by Jakub Urbanik (Warsaw), initially clarifying numerous fundamental questions: How did the codicils come about? How are they to be classified in relation to the otherwise rigid Roman testamentary rules? How was the law of codicils developed during the imperial period?
After a lively introductory theatre play from the consilium of Emperor Augustus, Martin Avenarius (Cologne) showed that the codicils did not come about as spontaneously as the relevant passage in Justinian’s Institutes suggests (2.25 pr.). Rather, they were also the result of a slow, gradual process of recognition that was linked closely to Roman ideas of loyalty within the family unit, as well as to the fideicommissa (informal instructions that initially were binding only morally) and to the desire for their enforceability. Building on this history was the lecture by David Johnston (Edinburgh), who used individual fragments from legal literature to explore the relationship between testament and codicil, focusing in particular on the intention of the testator (voluntas testatoris).
Following this theoretical and source-based introduction, Lucia Colella (Naples) turned the focus to the codicils in the documentary sources, thereby bringing in a practical perspective. She analysed three extant codicils and then discussed codicil clauses that can be found in some testaments. Such clauses are instructions in a testament that codicils will in the future change or extend the content of the testament. Striking here was that, despite the formal simplifications that according to the legal sources codicils were intended to bring about, it was in fact the case in practice that precisely such codicil clauses often enjoined similar formal requirements as in testamentary law.
The lectures by Thomas Rüfner (Trier) and Éva Jakab (Budapest) dealt intensively with what codicils could possibly contain. Rüfner focused on the means of amending a testament through a codicil, dealing in particular with possible restrictions imposed by codicils on a testament, the insertion and removal of a condition, as well as using the ademptio legati (the deprivation of a legacy) to amend a testament, which he saw as an example of the revival of archaic legal forms of action. Rüfner also presented possible solutions for cases in which testament and codicils (might have) contradicted each other. Jakab followed this up by also discussing the interpretation of codicils and testaments on the basis of specific formulations in Digest fragments, focusing in particular on the possibility of reinterpreting a testament as a codicil and vice versa. This again made clear how codicil law came into being and slowly took concrete form as the strict verbal formalism of Roman testamentary law was gradually loosened.
Finally, Sebastian Lohsse (Münster) spoke about so-called intestate codicils, which arise either when the testator had left no testament at all or a testament that had been made was invalid. The lecture focused solely on the first case, Lohsse using exegetical analysis to show that the same rules for dealing with a fideicommissum are also used, with some modifications, for intestate succession. To overcome the structural problem that the validity of a codicil depended on a testament and that a burden could only be imposed on a prior beneficiary, the classical legal scholars regarded it as though the testator had left the estate intentionally by means of intestate succession.
In his lecture, Salvatore Marino, one of the organisers, addressed the external and self-presentation of Trajan’s judicial policy.
The codicil in detail
The second section, ‘The codicil in detail’, followed on the third day, and was opened by Elsemieke Daalder (Münster), who dealt with the principle of codicillis hereditas neque dari neque adimi potest (‘an inheritance can neither be bequeathed nor disinherited by codicils’). She thus explored one of the essential theoretical differences between testament and codicil, although this difference was often mitigated by practical arrangements.
Wolfram Buchwitz (Würzburg) then addressed the question of the relevant point in time for the validity of a codicil. Using many examples from the writings of Roman legal scholars, he discussed the point in time of the execution of the testament, the execution of the codicil, the time of death, and the time of the occurrence of the conditional event. Regardless of legal principles such as the clause codicilli pro parte testamenti habentur (‘codicils are considered part of the testament’), what became clear is that Roman legal scholars tended to decide on the point in time in a pragmatic and case-by-case manner.
Thomas Finkenauer (Tübingen) and Hesi Siimets-Gross (Tartu) introduced a new theme by investigating manumissions by means of codicils, and whether the principle of favor libertatis was applicable here. Finkenauer began by looking at valid codicils, distinguishing here between direct and indirect manumissions. Siimets-Gross discussed manumission orders in forged and therefore invalid codicils. Various fragments showed that the principle of favor libertatis applied in both valid and invalid codicils – even when it was the manumitted slave who had forged the codicil leading to manumission.
It was not until the imperial period that the codicil gained recognition as part of Roman inheritance law. Using a dispute over the validity of the codicil of Iulius Tiro that is preserved in a letter from Pliny (ep. 6,31), Salvatore Marino (Naples) reported on the external and self-representation of Trajan’s judicial policy, focusing in particular on the importance of justice for imperial decision-making.
Finally, Valeria Di Nisio (Naples) dealt with a further use of codicils: the securing of maintenance through alimenta. Besides the manumissions already described, codicils also arranged maintenance, with the testator often wanting to provide for his freedmen. Di Nisio examined the scope of the arrangements for the provision of food (cibaria), clothing (vestiaria), and the use of living space (habitatio).
The final word at the conference went to Gregor Albers (Linz), who summarised the findings. He distinguished typologically between ‘source of power’ and ‘type of act’ and was thus able to establish that, despite difficulties in determining when the type of act is a testament and when it is a codicil, it is possible to identify different regulations. He also emphasised that codicils confirmed in a testament are governed by testamentary law, while those not confirmed are governed by the law of the fideicommissa.
Due to the narrow focus of the theme and the fact that almost all the participants had a background in Romance studies, there was already a broad understanding of Roman inheritance law. The conference thus fostered intensive and high-level discussions. The participants were able to explore individual issues and to garner many constructive suggestions and ideas, particularly on individual questions, such as the translation of individual Digest fragments. The discussions will no doubt contribute greatly to the conference volume, which is to be published next year.
Marlene Schröder is a research associate at the Chair of Roman Law and Comparative Legal History, Civil Law and European Private Law at the University of Münster.
Cite as:
Marlene Schröder: The ancient Roman law of codicils. Testamentary dispositions in the Imperium Romanum. Conference Report, EViR Blog, 12.12.2024, https://www.evir.uni-muenster.blog/en/conferencekodizille/.
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