JURE
JURE,
CE´SSIO IN, was a mode of
transferring rights by means of a fictitious suit, and so far resembled the
forms of conveyance by fine and common recovery which, till lately, were in
use in England. The proceeding was the following. The person to whom the
object of transfer belonged (
dominus qui
cedit), and the person to whom it was to be transferred (
vindicans, cui ceditur), appeared before the
magistratus; in whose presence the intended transferee vindicated the thing
as his own. The magistratus then asked the party making the transfer whether
he opposed a counter-vindication; and on his declaring that he did not or
remaining silent, the magistratus decreed (
addixit) the object to the vindicant. The admission of the right
of the vindicant or transferee by the real owner was the foundation of the
magisterial decree, the rule of procedure being “confessus pro
judicato est.” The proceeding was in form a “legis actio in
rem,” made to serve the purpose of a conveyance. In jure cessio
was probably recognised by the Twelve Tables (cf. Paulus on
Vat.
Fragm. 50, “et mancipationem et in jure cessionem lex XII.
Tab. confirmat” ), though, at the time of the passing of this
law, it may only have been used as a mode of manumission. The uses to which
in jure cessio was applied, according to the law as laid down by the
classical jurists, were the following :--1 to manumit a slave per vindictam
[
MANUMISSIO] (cf.
Liv. 2.5); 2, to emancipate a filiusfamilias; 3, for
the purpose of adoption; 4, to transfer the tutela legitima mulierum; 5, to
transfer the hereditas legitima (Gaius, 2.34--37); 6, to transfer ownership
of res, whether mancipi or nec mancipi, though the alternative form of
mancipatiowas generally preferred (Gaius, 2.25); 7, for creating servitudes,
rustic servitudes alone being also created by mancipatio (Gaius, 2.29, 30).
In jure cessio being a legis actio, it could not be carried out by means of
agents.
In jure cessio is last mentioned in Constitutions of Constantine. It was
obsolete in the time of Justinian, and the compilers of his legislation
omitted mention of it in excerpts, where it occurred. (Gaius, 2.24; Ulp.
Fragm. 19, 9; Schilling,
Inst. 2.154;
Leist,
Mancipation, § 36, &c.;
Ihering,
Geist des R. R. 2.579 if.; Aug. Schultze,
Privatrecht und Process in ihrer Wechselbeziehung,
§ § 459 if., 477 ff.; Sohm,
Institut des
röm. Rechts, 3rd edit., p. 30, &c.; Voigt,
Zwölf Tafeln, 2.75.)
[
E.A.W]
