oa Fundamina : A Journal of Legal History - Haec disceptatio in factum constitit : bemerkungen zur pietas im römischen unterhaltsrecht
There is a wide range of Roman-law texts on the duty of support. This obligation may result from family connections, from the relationship between patronus and freedman or even from ownership of a slave. A duty of maintenance may be imposed on somebody in a will, it may be linked to the allocation of a marriage portion, it may figure as a secondary obligation in a contract, etc. Accordingly, Roman jurists often comment on aspects of maintenance law, even outside the sedes materiae (D 25.3.5 De agnoscendis et alendis liberis vel parentibus vel patronis). They focus on a variety of legal topics, such as inheritance or succession, marriage, or negotiorum gestio. In the title De negotiis gestis in D 3.5.33 (Paulus 1 quaestionum) a case is reported which includes contradictory statements by the parties as well as exceptionally detailed statements by the jurists: Avia nepotis sui negotia gessit - a grandmother was managing her grandson's affairs; both she and the grandson having died, their heirs appeared as plaintiff and defendant. The claims related to the grandmother's maintenance of her grandson, so that defendants and plaintiffs were opponents in an actio negotiorum gestorum (directa). Earlier decisions quoted in this trial and the arguments advanced during the proceedings highlight the juxtaposition between enforceable obligations and the role of conscience where there is a duty of support. In particular, the judicial relevance of pietas will be examined in this contribution.
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