The Centumviral Court and its practice in inheritance cases: The issue of precedent in Roman law

Introduction. The practice of the centumviri court in probate cases had a huge impact on the development of the institutions of Roman law, both substantive and procedural: in general, it demonstrated the role of the court decision in the development of the legal system and showed that the precedent in Rome often acted as the basis for a verdict. Theoretical analysis. The influence of the judicial practice of the centumviri on the development of Roman law in inheritance cases can be explained by the specific legal position of the court in Rome, which was based on its public character. The court was always headed either by magistrates (questores; praetor hastarius) or by persons endowed with public authority by virtue of their position (decemviri in litibus iudicandis; magistratus qui hastae), therefore, in their decisions on inheritance cases, centumviri could act by supplementing civil law and, in some cases, even correcting it. Empirical analysis. Thanks to the practice of the court, the principle of “sui heredes instituendi vel externedandi” was supported, the idea of the right of close persons to actually participate in inheritance was formed by developing legal principles – a kind of fi ction: wills contrary to the duty arising from kindred love (offi cium pietatis) were considered drawn up by testators as if not in their right mind (quasi non sanae mentis fuerunt, ut testamentum ordinarentum) and were declared invalid. The court’s practice formulated the concept of a mandatory share (portio debita) and, by analogy with the “falcidian quarter”, its size was determined. In addition, the court’s practice became the basis for the emergence of a new procedural remedy for bypassed heirs – querella (accusatio) inofficiosi testamenti and, possibly, the formulation of the legal form of Aquilia Galla (postumi Aquiliani). Finally, the resolution of the struggle between the words (verba) and the intentions of the parties (voluntas), which runs through the entire Roman jurisprudence, is connected with the activity of the court. Results. The formulation of new legal principles takes place during the judicial process, and their consolidation is carried out by making decisions by centumviri in certain cases, which, apparently, have the force of precedents, and form the same type of judicial practice, at least in inheritance cases involving wills that violate moral duty.

Centumviri Court (collegium), sentumviralia iudicia, precedent (exemplum), legal argumentation, legal principles, principles of necessary inheritance, sui heredes instituendi vel experedandi, portio debita, officium pietatis, color insaniae, querella (accusatio) inofficiosi testamenti