OPERIS NOVI NUNTIATIO
OPERIS NOVI NUNTIATIO was a summary extra-judicial remedy
provided by the edict against a person who was making an
opus novum, by which is to be understood the building,
altering, or demolishing of some structure attached to the soil (
Dig. 39,
1,
12); and its object was either the maintenance of a private
right, the prevention of damage, or the protection of the public interest
(Dig. ib. 1, 16). The right of making the nuntiatio belonged (1) to the
owner of land, “qui jus aliquid prohibendi habet:” his right
might be founded either on anticipated injury to his own property, on some
statutory rule (e. g. those relating to the height of buildings), or on a
contract or private disposition of his neighbour; (2) to the superficiarius,
pledgee, emphyteuta, and bona-fide possessor of the land; (3) to any one
else who is so endangered by the
opuss novum that he
could demand “cautio damni infecti” (Dig. ib. 1, 17); and (4)
to any full-grown citizen, if the opus is
in loco sacro,
religioso, or
publico (Dig. ib.
3, 4). But a lessee, or a person who merely had a servitude over the
threatened property, had no right of nuntiatio, and even the usufructuarius
could make it only in the name and on behalf of the dominus (Dig. ib. 1,
20).
In form the nuntiatio was a notice, given on the spot (Dig. ib. 5, 4), to
discontinue the opus: it could be made either personally or through an agent
(though the latter would have to give the
cautio de
rato, Dig. ib. 5, 18), but must be in the presence of the person
responsible for the work protested against, or of some subordinate
[p. 2.276]of his from whom he could receive information of
it. No application to or assistance from the praetor was requisite (Dig. ib.
1, 2), but it was essential that the notice should be given before the opus
was completed: after completion it was of no effect (ib. 1, 1, “futura
opera” ), redress being then obtainable only by the interdict
“Quod vi aut clam.”
If the opus novum consisted in building on the complainant's land, or
inserting or causing anything to project into his premises, it was better to
apply at once to the praetor, or to prevent it
per
manum; that is (as it is explained) “jactu lapilli,”
which was a symbolical resort to force for self-protection (Dig. ib. 5, 10;
43, 24, 20, pr.).
The result of nuntiatio was that any continuation of the work was unlawful,
so that the injured person, in that event, was entitled by the so-called
“Interdictum de demoliendo” to be restored
in statum quo (Dig. ib. 20, pr. and 4). It could be
extinguished or cancelled in a variety of ways: e. g. by waiver on the part
of the nuntians, unless made in the public interest (Dig. ib. 1, 10; 2, 14,
7, 14); by the death of the nuntians (ib. 8, 6), or by his parting with the
land which entitled him to raise his voice against the opus; by the person
answerable for it giving security that if judgment were delivered against
its legality he would at his own cost restore things
in
statum quo (Dig. ib. 5, 17), and by the nuntians refusing such
security when properly tendered. When the
cautio was given, or unlawfully rejected by the nuntians, the
party was entitled to an “Interdictum prohibitorium” for his
protection in prosecuting the work (Dig. ib. 20, 9
sqq.). Finally, the person to whom notice was given could take legal
proceedings (
extra ordinem, Dig. ib. 1, 9) to
obtain permission for carrying the work on (
remissio:
“operis novi nuntiationem remiserit,”
Lex Gall. Cisalp. x.), on the ground that the nuntiatio was
illegal or had been waived, or that the public interest required its
completion; but such
remissio was not a final
determination of the rights of the case, which could be attained only by a
real action.
(Die. 39, 1; 43, 25; Cod. 8, 11. Besides the account given of the law on the
matter in the usual text-books on Roman Law, there are express treatises on
the subject by Stölzel, Reinhard, Polis, Hesse, Burkhard, and
others.)
[
J.B.M]
