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UNIVERSITAS The philosophical division of things (res) in the widest sense of the term into res corporales--objects of the senses--and res incorporales--objects of the intelligence only (Cic. Top. 5; Sext. Empir. adv. Mathemat. 3; Quintil. Hist. 5.10, 116; Gel. 5.15; Boeth. Top. iii. &c.), was applied to the objects of rights by the Roman jurists (Gaius, 2.12-14; Dig. 1, 8, 1, 1; Inst. 2.2, pr. 2), who were perhaps led to this way of regarding the matter by the fact that every action in rem related to either a corporeal thing or an incorporeal right ( “si paret, rem actoris esse . . . si paret, jus utendi fruendi actoris esse” ). If this is so, res originally meant in legal phraseology any thing of which it could be said “meum est,” whether a corporeal thing or an incorporeal (real) right; but later, by an extension of meaning, res incorporalis came to include all rights other than dominium (which fell under res corporalis because the Romans habitually identified it with the thing over which it existed), especially the rights in personam termed obligationes (Gaius, 2.14; Inst. 2.2, 2).

Every thing which is in its nature divisible can be conceived as consisting of parts, in contrast with which it is itself a unit or universitas (e. g. “universitas agrorum,” Dig. 50, 16, 239, 8; “fundi,” Dig. 41, 4, 2, 6); and if this be done with reference to the subjection of one of those parts to exclusive rights in a person, that part is itself conceived as a unit or independent object of rights, and the whole is regarded pro diviso, as though it were divided ( “Quintus Mucius ait, partis appellatione rem pro indiviso significari, nam quod pro diviso nostrum sit, id non partem, sed totum esse, Servius non ineleganter partis appellatione utrumque contineri.” Dig. 50, 16, 25, 1). But some things consist of parts which cannot be physically divided from it without an essential change in their nature, and in relation thereto such a thing cannot be regarded pro diviso; the whole can be the object of rights, but a physical part of it cannot. The stones, for instance, of which a house is built, are not parts of it in the sense that they cannot be removed without a change in their nature, and Consequently they can be owned pro diviso even while [p. 2.978]unseparated; but the house itself is an integral part of the soil on which it stands, apart from which it cannot be an independent object of rights; nor can one person own the right arm of a slave, another the left, or one the head and shoulders of a horse, another the hinder quarters. The contrast between the two is thus put by Pomponius: “unum genus corporum continetur uno spiritu et Graece ἡνωμένον vocatur, ut homo tignum lapis et similia: alterum quod ex contingentibus hoc est pluribus inter se cohaerentibus constat, quod συνημμένον vocatur, ut aedificium navis armarium” (Dig. 41, 3, 30, pr.).

But a thing, even though physically indivisible (as a slave), may be conceived as consisting of ideal or intellectual parts: e. g. one person may own a field or a slave in one-third, and another may own him in two-thirds: “servus communis sic omnium est, non quasi singulorum totus, sed pro partibus, utique indivisis, ut intellectu magis partes habeant quam corpore” (Dig. 45, 3, 5): and if such a part is regarded as the object of exclusive rights, the thing is nevertheless taken pro indiviso, and is said to belong to two or more persons in common: no one can say that any particular physical part belongs to him exclusively. Here the whole is corporeal, the parts are intellectual. But conversely there are cases in which, though the parts are corporeal, the whole is intellectual or ideal only; as when there is a number of independent corporeal things not materially connected, but connected in thought owing to some common end or purpose so as to form in idea a whole: e. g. the books composing a library, or the sheep which make up a flock (Inst. 2.20, 18). Where the purpose of the several things, so far from being different from and independent of the general purpose for which the idea is formed, is subservient to that general purpose, such intellectual wholes, consisting of corporeal parts which may be completely changed without its ceasing to be the same, are treated as independent objects of property, so that (e. g.) they can be pledged (Dig. 20, 1, 13, pr.; ib. 34, pr.); they are juristic “things,” and are called universitates rerum, just as universitates personarum are juristic persons, or sometimes universitates rerum distantium to distinguish them from the so-called universitates rerum cohaerentium, exemplified in the passage of Pomponius cited above. Passages in which these universitates rerum (distantium) are characterised may be found in Inst. 2.20, 18;--Dig. 30, 22; ib. 7, 1, 70, 3; ib. 6, 1, 1, 3; ib. 3, pr.

But the term universitas is not applied merely to “things” in the narrower signification. Upon its Roman use in the sense of an aggregate of proprietary rights (whether real or personal) and liabilities, especially with reference to hereditas--though we also read of peculia (Dig. 5, 3, 20, 10) and dotes (Dig. 33, 4, 1, 4) as universitates--modern jurists have founded the conception of a “universitas juris,” the complex of a man's assets and liabilities, which may be the object of succession, as upon death, adrogatio, conventio in manum, &c. [SUCCESSIO]. And from its other Roman use in the sense of the aggregate of persons belonging to a corporation (Dig. 1, 8, 1, pr.; ib. 2, pr.; ib. 6, 1; ib. 3, 4, 2; ib. 7, 1 and 2; ib. 46, 8, 9), they have coined the expression universitas personarum as denoting one of the species of what are now usually termed “juristic persons.”

It is only the individual man who can properly be regarded as the subject of rights and duties, and it is he who determines for himself the ends to which his property shall be devoted. But there are some ends which concern more men than the single individual, and these may often be attained by the formation of a partnership between those to whom they are an object; and others of a wider and more enduring interest still, which are an object to successive generations, e. g. to the inhabitants of a town, the citizens of a state, the members of a family, the practitioners of an art--or even to all mankind, as is the case with civilisation and religion. The attainment of these is facilitated by certain funds being set aside and administered for that very purpose; and thus the end seems to resemble man, for to it is ascribed the proprietary capacity which only man can properly possess, and the foundation which is its outward symbol is conceived as a person is said personae vice, privatorum loco, esse (Dig. 46, 1, 22; 50, 16, 16), and is described as owner, heir, creditor, and debtor (Dig. 34, 7, 1; ib. 4; 1, 3, 49, 4): communities of persons organised for permanent public purposes are in the writings of the Agrimensores (pp. 16, 54, ed. Lachmann) called persona publica, persona colonia. This is the notion of a juristic person, of which there may be said to be two kinds: corporations (corporatio, Nov. Severi, ii., but more ordinarily corpus in the authorities: the moderns speak of universitates personarum), and funds or property-aggregates devoted to some permanent and definite object, which, so far as proprietary rights are concerned, the state has endowed with personality and legal capacity: these are by modern writers often termed universitates bonorum, an expression which the Romans appear to use only in the sense of an inheritance (Dig. 6, 1, 1, pr.; 29, 1, 18, pr.).

Of corporations the following kinds occur:--(1) The Roman State, Respublica, considered as the subject of rights and duties comprised under Private Law: its property, and legal personality in respect of property, are also called Fiscus or Aerarium, though some writers (e. g. Baron, Pandekten, § 30) treat the Fiscus and State together as a juristic person of anomalous character, which cannot properly be classed as a corporation at all. By the classical jurists respublica is most commonly used to express a civitas dependent on Rome, not Rome herself. (2) Political or local subdivisions of the people, such as civitates, municipes, communes or communitas, vicus, colonia, provinciae, fora, conciliabula, castella (the last three, though not mentioned in the legislation of Justinian, occurring in the Tabula Heracleensis, the Lex Rubria de Gallia Cisalpina, and in Paulus, Sent. rec. 4.6, 2). (3) Military subdivisions, such as legions (Dig. 28, 3, 6, 7; 41, 3, 30, pr.;--Cod. 6, 62, 2). (4) Associations of official persons and administrative authorities, of which the body of scribae became one of the most numerous and important through being employed in all branches of the administration. The general name was Scribae, which included the subordinate [p. 2.979]corporations termed Decuriae librariorum, fiscalium, censualium (Dig. 37, 1, 3, 4; 46, 1, 22; 29, 2, 25, 1;--Cod. 11, 13), whose individual members, called decuriati and subsequently decuriales, had great privileges at Rome and subsequently at Constantinople (Cic. in Verr. 3.79; ad Quint. fratr. 2.3; Tac. Ann. 13.27; Sueton. Octav. 57, Claud. 1). Similarly the decuriones of a town were regarded as a corporation distinct from the general body of Municipes, as in Cod. 6, 62, 4; Dig. 4, 3, 15, where it is stated that an action for dolus will not lie against the Municipes, of which a fictitious person cannot be guilty, but that such action will lie against the individual decuriones who administer the affairs of the Municipes. (5) Associations of religious persons, collegia templorum (Dig. 32, 38, 6), such as the priests of the various gods and the Vestal Virgins. (6) Associations for trade and commerce, as Fabri, Pistores, Navicularii (Dig. 3, 4, 1, pr.; 50, 13, 5, 13), the bond between whom was their common calling, though each worked on his own account. Under this head also fall certain partnerships, which, though termed societates, had a permanent corporate existence, such as the associations for farming the taxes (societates publicanorum), and for working mines (salinae: Dig. 3, 4, 1, pr., and 1; 37, 1, 3, 4; 47, 2, 31, 1). (7) The associations in the nature of modern clubs which were called Sodalitates, Sodalitia, Collegia Sodalitia. These were in origin friendly associations for purposes of common feasting and worship, but in course of time many of them acquired a political character, and in periods of commotion became centres of faction and intrigue, their members crowding together in public places (Cic. ad Quint. frat. 2.3), so that at last the senate was compelled to propose a law subjecting those who would not disperse to the penalties of vis. According to Asconius, this was followed by a general dissolution of collegia, but in fact those only were dissolved which were of a mischievous character; and under the emperors the rule was established that no collegium of this or the preceding class could be founded without permission from the princeps or senate, which was granted only on special grounds (Dig. 47, 22, 1-3; 3, 4, 1, pr.). (8) There were also in the imperial period Collegia Tenuiorum (Dig. 47, 22, 1, pr.; ib. 3, 2), associations of poor people for mutual support, and especially to secure their members decent burial. A man could only belong to one of them: the members might meet only once a month, and paid monthly contributions. To clubs of this class even slaves could belong, on obtaining permission from their masters. Upon the whole subject compare the article on COLLEGIA.

Of the rights comprised in private law, some only can reside in corporations. An independent property or proprietary capacity is essential to the corporate character: “quibus autem permissum est corpus habere . . . . proprium est ad exemplum reipublicae habere res communes, arcam communem et actorem sive syndicum, per quem, tanquam in republica, quod communiter agi fierique oporteat, agatur fiat” (Dig. 3, 4, 1, 1). Corporations could own, possess, owe, be owed, and institute legal proceedings; they could possess the jus patronatus, but none of the family rights, and many of them, though capable of taking legacies, were excluded from succeeding deceased persons by way of inheritance (Dig. 30, 117, 122; ib. 73, 1). A corporation is not identical with its members at any given time, and remains the same “person” unaffected by changes in them (Dig. 3, 4, 7, 2); they do not share pro parte in its rights and liabilities ( “si quid universitati debetur, singulis non debetur, nec quod debet universitas singuli debent,” Dig. ib. 7, 1), and can become its debtors and creditors in precisely the same way as other persons can (Dig. ib. 9). Their rights and duties, as such members, vary with the character of the corporation itself, which may be established entirely or principally for their benefit, so that sometimes the members for the time being may be entitled to divide its property between themselves on its dissolution. Having no will of its own (Dig. 41, 2, 1), it can perform legal acts only through agents, whether these be its presidents (magistri, rectores) or subordinate officials, especially those appointed for the conduct of litigation (syndici, actores); and what these agents decide on and do within the scope of their authority is regarded as the determination and act of the corporation itself (Dig. 35, 1, 97; 50, 1, 14). Who are its duly authorised agents is usually defined by its constitution: but in the absence of such definition the aggregate of its members are to be considered its natural representatives, and the acts and resolutions of a majority at a duly summoned meeting to be taken as conclusive (Dig. 19, 160, 1; Cod. 10, 63, 5, 1), unless contrary to positive law or the interests of the public (Dig. 47, 22, 4).

Some corporations were established by the state: but the chief mode in which they arose was the voluntary association of a number of persons (not less than three: Dig. 50, 16, 85) for a common purpose which was neither unlawful nor immoral. Whether a special recognition of the associated persons as a corporation by the state was essential cannot perhaps be regarded as settled; but (notwithstanding Dig. 3, 4, 1; 47, 22, 3, 1) the better opinion would seem now to be that an association might be invested with the corporate character under general law or custom, and that as a rule it could not be denied to any lawful combination of persons so organised as to create a fund of property distinct from that of the associated persons themselves (Windscheid, Lehrbuoh, § 60, note 3).

A corporation was dissolved by the death or withdrawal of all its members: “In universitatibus nihil refert, utrum omnes iidem maneant, an pars maneat vel omnes immutati sint: sed et si universitas ad unum redit, magis admittitur posse eum convenire et conveniri, cum jus omnium in unum reciderit et stet nomen universitatis” (Dig. 3, 4, 7, 2). But it cannot as a rule be extinguished by a resolution of its members. Of course, where no public interest stands in the way, these can agree unanimously to withdraw from the corporation and so put an end to its existence: but in such a case unanimity is indispensable unless it is provided by the constitution of the corporation itself, that for this purpose (as for others) a majority shall be able to bind a minority. It could also be [p. 2.980]dissolved by its object becoming unlawful, as where the state prohibits associations of certain kinds which hitherto have been perfectly legal (e. g. the collegia sodalitia), or declares a single corporation extinct on grounds of policy (Dig. 7, 4, 21). Upon dissolution, the property of those corporations whose members were jointly entitled to its funds or income was divided among them; in other cases, any resolution of the members made before extinction as to what was to become of it was binding: if there had been no such resolution, the property went as bona vacantia to the Fiscus.

The second class of juristic persons (the socalled universitates bonorum) are those which are not necessarily supported by any natural person--a support which, as has been seen, was essential to the existence of a corporation: they are so much property, or aggregates of rights and duties, personified and regarded as capable of perpetuating their separate existence and fictitious unity indefinitely. These were uncommon at Rome before the adoption of Christianity as the state religion, though by special favour of the emperor or senate certain temples were endowed with capacity of inheriting property (Ulpian, Reg. 22, 6): but after Constantine's religious reformation the character of the juristic person came to be possessed by foundations established for the encouragement of the new worship, such as churches, monasteries, and religious houses generally, and by other institutions of a charitable nature, such as hospitals and almshouses, which Christianity regarded with peculiar favour (Cod. 1, 2, 23; 1, 3, 35, 46). A juristic person of any of these kinds came into existence by the dedication by any one, even in his last will, of property to a permanent end of religious or charitable character: it had full proprietary rights, including capacity to take by inheritance no less than by legacy (Cod. 1, 2, 23; 1, 3, 24, 49): like a corporation, it could act only through agents, the appointment of whom, if not provided for in the constitution of the juristic person by its founder (Cod. 1, 3, 46, 3), was entrusted to the public magistrates (ib. 49, 6; Nov. 131, 11). Alienation of property belonging to such foundations was subject to important restrictions (Nov. 120).

It is disputed whether the character of a juristic person can be ascribed to the successive holders of an office or magistracy (after the fashion of English “corporations sole” ): but this would seem to be the case, inasmuch as a legacy to “the emperor” or “the holder of such and such a magistracy” was good without further specification (Dig. 31, 56, 2; 33, 1, 20, 1; 50, 1, 25). There is the same question with regard to a hereditas jacens, i.e. a man's property in the interval between his decease and acceptance by an heir, of which it is said “hereditas vice defuncti fungitur, personam defuncti sustinet” (Dig. 41, 1, 33, 2; ib. 34; 28, 5, 31, 1, &c.), and which, even while res nullius, could acquire fresh rights and incur fresh liabilities. It is difficult to explain such properties without attributing to an inheritance a fictitious juristic personality, while at the same time it is impossible to classify it with either of the two groups of juristic persons treated above.

The term Universitas was adopted in the Middle Ages to denote certain great schools, but not as schools: it denoted these places as corporations, i. e. as associations of individuals. The adjunct which would express the kind of persons associated would depend on circumstances: thus, in Bologna, the expression “Universitas Scholariunm” was in common use: in Paris, “Universitas magistrorum.” The school as such was called Schola, and from the 13th century most commonly Studium: and if it was a distinguished school, it was called Studium Generale. The first occasion on which the term universitas was applied to a great school is said to be a Decretal of Innocent III. of the beginning of the 13th century, addressed “Scholaribus Parisiensibus.” (Dig. 3, 4; Puchta, Institutionen, § 222; Savigny, System, &c. i. p. 378, 2.235, 3.8; Dirksen, Historische Bemerkungen über den Zustand der juristischen Personen nach röm. Rechte, in his Civil. Abhandlungen, 2.1; Pfeifer, Die Lehre von den juristischen Personen, Tübingen, 1847; Uhrig, Ueber die jur. Personen, Dillingen, 1854.)


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  • Cross-references from this page (3):
    • Tacitus, Annales, 13.27
    • Gellius, Noctes Atticae, 5.15
    • Cicero, Topica, 5
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