Mancipatio

The mancipatio ( Germanized " mancipation " ) is a form of transfer of ownership of Roman law. The term derives from the Latin words manus (hand) and capere ( take ) from. The mancipatio follows a prescribed, even the Twelve Tables known ritual that represents a kind of sham sale:

The ritual of mancipatio

In the presence of at least five witnesses who had to be Roman citizens, and another Roman citizen, who occupied the function of a scale holder ( libripens ), the acquirer had the thing (or the slave ) to take, at which he was to acquire property, and to speak the following words: Hunc ego hominem ex iure Quiritium meum esse aio isque mihi emptus esto hoc aere aeneaque libra ( Gaius, Inst 1, 119) (Eng. I declare that this slave ( or the relevant purchase item ) under the law the Quirites ( = of Roman citizens ) is mine and he shall be bought from me through this piece of copper and bronze, these scales ). Then, should propose to the purchaser with the copper pieces to the pan and pass it to the previous owner.

Res mancipi

Subject of mancipatio may be only certain objects, called res mancipi, it is slaves, Italic land and train and pack animals (cattle, horses, donkeys, mules and donkeys ), and all other essential for farm conditions assets.

Historical development of mancipatio

The ritual of mancipatio comes apparent from an older process, as not only a piece of copper had been provided as a symbol for the purchase, but the purchase price was actually handed over to the spot and measured with the balance.

In addition to this memory of older purchase transactions but is also striking that the formula of mancipatio that of the early ownership process ( vindicatio ) is used. This also explains the peculiarity that the implementation of mancipatio except the acquirer nobody talks: The purchaser claims ( like a plaintiff ) his right to property and the seller is contrary to the not to be ( a defendant, must be condemned in the absence of reply). This shows that the idea of the contract was not yet fully formed, although the mancipatio clearly is a sale, so far as the seller does not occur in the real sense as a contractor. However, this could also have its reason in the fact that at res mancipi originally there was a prohibition of alienation that has just been circumvented by the acquirer towards pretending to the outside as he is already owned and urge his property from the seller out. The ownership assertion would have been then combined later with the expressions of purchase.

The development of the original purchase process towards a ritual in which only the copper piece will be given as a symbolic purchase price, led in the course of Roman history of private law to the fact that the res mancipi could be suitable also for any other legal reason than that a contract of sale by the mancipatio. The mancipatio can therefore be understood as an archetype of the available business.

Echo

The idea of a mancipatio underlying an acquisition of property by payment of a symbolic purchase price has been preserved to the present day, and is especially applicable when the object to be acquired with substantial defects, burdens or risks is fraught. Thus, the purchaser accepts the goods substantial costs or risks that otherwise would have to bear the original owner. as example of this are the sale of insolvent companies or environmentally contaminated properties of the NVA at the price of 1 € or 1 DM

In the area of ​​consumer contracts subsidized sale with simultaneous completion of another contract (mostly long-term debt ratio) as a bundle offer has been common in recent decades. As an example, the sale of a mobile phone for the price of 1 € for simultaneous conclusion of a contract provider may serve. Here is a "real" sales contract: The buyer is entitled to the goods and the seller is entitled to the purchase price, even though he can hardly make this claim because of the small sum.