.: The origins of fictio iuris and of virtual space in Roman law and their recurrence in processes of information and data transmission of current private law
.
Index:
Introduction.
Fictio iuris in Roman law through jurists' opinions, opinion of the Courts and statutes: comparison between substantive and procedural law.
Fiction and virtual reality in the informatics evolution of private law in the continuity between substantive law and procedural law.
Conclusions.
For a critical approach.
Introduction.
When I speak about "fictio", in English "fiction" or in Italian "finzione", its accepted sense is meant, " false or simulated attitude or behaviour, either episodic or habitual", but the dichotomy fiction/reality is an extremely complex problem that has always fascinated philosophy and the physical sciences. The Latin word "fictio" corresponds to the Greek term "ποιησις", so it is "generatim est actus formandi", in a technical meaning " fictio legis dicitur quum per legem aliquam cuipiam concedit, ut alia conditione censeatur, atque in praesenti est".
There are other legal meanings of the Italian "finzione", but they are all a "mental process in which you consider something to exist (whether a thing, a human action or another happening) that you "know" does not really exist".
A important definition of the English word "fiction" ( finzione), made by jurists, is "a conscious deformation of reality related to a legal consequence", or, if we focus on interpretation, "the logical proceeding in which, even if a rule does not directly consider a fact, you can equally use the rule, imaging that another fact happened, subject to the rule, instead of the real one". This will be the definition I will use, and it is used by several authors. It is important that there is a contemporary legal value of the substituting element and the substituted one otherwise it would be an evolution of the law.
A second definition, which exalts the purpose of fictio, is "a means to conform the legal consequences of a particular case in point to another one, in itself lacking in them".
Another definition, which focuses on the structure of finzione, is "a way to represent or to "speak", using linguistic instruments to economize rules". The last two definitions, complementary to each other, can not univocally identify the phenomenon, but often simply identify a particular expressive used to explain some concepts. It is important to notice the difference between interpretative procedures based on finzione, extensive interpretation and analogy: you apply fictio when you can not apply extensive interpretation and analogy, both inadequate. Ratio legis is respected and sought in the extensive and analogical interpretation, but it is denatured in fictio iuris, that substitutes it with different legal concepts. The difference between finzione and legal presumption is even more subtle. While presumption, in particular iuris et de iure, makes evidence easier because using it you consider proved the existence of certain elements of the legislative rule, fictio declares that a fact that you know a priori has not happened exists, with the result that you can not apply a different and opposite rule.
Fictio iuris in Roman law between jurists' opinions, opinion of the Courts and statutes: comparison between rights and process.
Roman law made wide application of fictiones because they permitted both to formally respect the old rules of the ius civile, felt as not infringeable, and to adapt, thanks to the imperium of the jurisdictional authority or of a specific statute, old institutions to the changing social-economical needs.
For a long time, also recently confirmed, jurist's opinion has said that the origin of fictio was in the holy sphere, in which rigid formalism made the research for alternative ways easier: the first fictiones consisted in the substitution of the sacrifice to the divinity with a different offering (e.g. instead of an animal, its effigy made of bread or wax) and they arose to permit a merely formal respect of ancient rites.
The fictiones could have a praetorial origin, i.e. to be founded on the jurisdictional authority, or on the law, if they arose for an express rule.
I will examine, without trying to be exhaustive, some of the fictiones of the Roman law, I will especially focus on the social-economic needs driving them.
a) Fictio se herede and fictio suitas.
The first of the cases of fictiones that are presented by the Institutiones of Gaius is the fictio se herede. To understand it I need briefly mention the Roman successional system. The successional system of the ius civile was amply modified by the ius honorarium, for various purposes: to extend the successio ab intestato to other persons excluded by the old rules of the ius civile, but considered deserving; to aid the successors designated in the will in the protection and acquisition of the inherited goods; to allow persons not named in the will, but because of ties to the de cuius, considered unfairly deprived of the inheritance, to take part in it. The fulcrum of succession in the ius honorarium was the bonorum possessio, institution parallel to the hereditas, later co-ordinated and then merged by Justinian. In the ius civile the successio ab intestato specified to call first the sui heredes, in their absence the adgnati, and in their absence the gentiles.
Heredes sui were those persons who were, at the death of the testator, under his potestas: children in potestate both male and female, and his uxor in manu. Emancipated children, those adopted by another pater and the uxor married sine manu were not sui heredes. The praetorian system for successio ab intestate takes into account the evolution of Roman society, but, not being able to dispose of succession ex iure civile, the first prevails over it, though with different effects: the praetorian heir did not acquire the hereditas, but only the bonorum possession of hereditary goods. Praetorian heirs were always free to accept or not the inheritance, different to the heredes sui of the ius civile.
There were four classes of possible heirs: liberi, legitimi, cognati, vir et uxor.
The liberi class was possible only if the de cuius was a man. It included the heredes sui, but also emancipated children, so eliminating the disparity of treatment among brothers and sisters, those emancipated and those under potestas, considered intolerable by the changed social conscience. The old ius civile reserved a primary role to the children in potestate, not emancipated, who were included in the class of heredes sui, while emancipated children were included in the second class, the adgnati: they could share the inheritance only if there were no heredes sui. So meaning that in the case of various children, some emancipated, some in potestate, emancipated children would be excluded from the succession. This consequence seemed unfair, so the ius honorarium, created the fictio suitas, i.e. the concession of the bonorum possession of the hereditas also to emancipated children, pretending that the emancipation had not happened, or more precisely, deeming that the children were still in potestate of the pater at his death, and so considering them as heredes sui. In this way emancipated and in potestate children shared the inheritance. Obviously the descendants of the children were also included in the emancipated liberi, also those who were never under the potestas of the de cuius. In some cases we find grandchildren born after the emancipation of the son who died before his father (the de cuius).This means that the fiction was even greater: you do not pretend the persistence of a potestas no longer extant, but you pretend a potestas that never existed. Nevertheless the fiction was about postdating the emancipation, more than the legal quality of heir, so it could reach equitable results without an open violation of the ius civile, by placing the praetorian legal qualification on those of ius civile.
Another fiction in the succession field was the fictio se herede. It allowed the bonorum possessor to act as if he was the heres of the ius civile. The bonorum possessor who, having asked for and obtained the bonorum possession thanks to the edictum of the praetor, took the place of the de cuius because of the ius honorarium and not based on the ius civile, so he did not have the dominium of the hereditas and he could not act in those actions reserved to heres by ius civile. Evdent reasons of fairness suggested, instead, an equalization of the bonorum possessor and heres. You vould obtain this result using the fictio se herede, "considering as true the factual qualification that the bonorum possessor was the heres of the de cuius , obviously not existing in the reality". So the fiction has a value only in the proceedings, to allow bonorum possessores to have rights and duties linked to the inheritance, so they could both act or to be summoned. It is evident that the bonorum possessor is not the heres and he could not be considered the heres: the fictio se herede supposes the bonorum possession, is not a presupposition of it.
b) Actio Serviana e actio Rutiliana- bonorum emptor.
The bonorum venditio was an executing action on the estate of the debtor who clearly and irreversibly became insolvent. His goods were inventoried and sold in block to the highest bidder, on the debtor fell the infamia. The buyer of the estate, the bonorum emptor, acquired the in bonis habere on the debtor's goods and had to pay, up to the price of the sale, the creditors, in accordance with what was established in an apposite list, the lex venditionis. The bonorum emptor could act in every action of the debtor, in particular to obtain his credits he had two actions: actio Serviana and actio Rutiliana. Actio Serviana, that could be used only if the debtor was dead, was a fictitious action in which it was supposed that the bonorum emptor was the heir of the debtor whose estate he bought. The fiction consisted in considering the bonorum emptor, but only in proceedings, as the heir of the dead debtor. So it was another case of fictio se herede, probably created after the fictio se herede to protect bonorum possessio. However those two fictions are very different in that "in the fictio heredis of the bonorum possessio the supposition is to allow the interested person to take possession of the inheritance, while in the fictio of the actio Serviana the fiction that the bonorum emptor was the heir of the bankrupt helps exclusively commercial needs".
If the debtor was still alive, the bonorum emptor could use actio Rutiliana, an action with translation of subjects, thanks to which he could act in lieu of the debtor. This action was not fictitious, as it used only a translation of subjects.
Using adaptations of the actions Serviana and Rutiliana the bonorum possessor could even be summoned, especially by the creditors.
c) Fictio civitatis
In Roman law there were the so called actiones directae, i.e. the actiones civiles, brought in accordance with ius civile, clearly defined in their contents and their limits; nevertheless those actiones so crystallized did not answer all the social-legal aims of evolving Roman society; so a second category of action, called actiones utiles were used. These actiones were products of the imperium of the praetor, who, within the limits of the ius honorarium, allowed those actions, created from an adaptation of those of ius civile, to manage situations considered deserving, but ignored or outside of the ambit of the ius civile. Within the ambit of actiones utiles could be the translation of subjects, the fiction of a civilistic requirement, the enlargement of an action of ius civile. Among the fictions of a civil requirement we note the fictio civitatis, thanks to which the praetor allowed a peregrinus (a free non-roman) to be part of a trial. This fiction must have been very useful before the creation of praetor peregrinus, and, afterwards, only for the institutions not open to foreigners, such as the actions of furtum and actio ex lege Aquilia de damno. Obviously this fiction had a limited application, otherwise it would have rendered useless the Roman legal system. With the generalized concession of Roman citizenship in 212 a.C. through the Constitutio Antoniniana the fictio civitatis was superceded.
d) Fictio legis Corneliae.
The most famous fiction with a legislative origin is the fictio legis Corneliae, that enabled wills to be kept valid when made by Roman citizens ab hostibus capti. One of the requirements to be a legal subject was freedom, which was lost, in other cases also, in the case of capture by an enemy: the prisoner was deprived of his legal subjectivity and so eliminated from the list of personae sui iuris, in accordance with this capitis deminutio maxima, so losing the title to all his relevant legal situations. The testamenti factio activa, i.e. the ability to dispose of one's inheritance by will was not an exception to the general rule about legal capacity. So the will made by the prisoner citizen before his captivity would lose its validity so leading to the opening of the successio ab intestato of the captivus. This result arrived at through ius civile, was felt to be unjust, because it impinged upon the will of the citizen. To remedy this situation the lex Cornelia ordained that the imprisoned citizen would be defined as a free dead person at the moment of capture. The fiction consisted of a fictitious anticipation of the moment of death. In this way the result was obtained of preserving the value of the testament made by the citizen before his captivity, formally respecting the rules of ius civile. Obviously the prisoner could not make a new testament during his captivity.
Fictio legis Cornelia is closely linked to another institute: the ius postliminii. The ius postliminii was an ancient custom, according to which the civis who escaped from captivity and reached the borders (limina) of Rome would have back all his estates and his rights, as if he had never lost his subjectivity. Fictio legis Corneliae completed the possible options: if the prisoner was able to return to his country he was considered by the law as he had never been in captivitas; if he died while a prisoner the death was deemed to be when he was free, at the moment of the capture, to preserve the will made by the citizen.
e) Actio publiciana – in bonis habere
The actio Publiciana was a ficticia action that had an enormous value in Roman law, succeeding in modifying the rules. To understand actio Publiciana it is necessary to remember that to have the property of a res in accordance with the principles of old ius civile vetus, i.e. the dominium ex iure Quiritium, precise requirements and modes of transfer were necessary, which were more and more difficult to execute as time passed. Only Roman citizens or foreigners with ius commercii were entitled to dominium ex iure Quiritium. The powers of dominus were broad, according to a famous saying they were "ius utendi, fruendi et abutendi". They could be constituted or extinguished for: incrementum fluvialis, fructificatio, confusio, accessio, definitio, assignatio, occupatio and above all usucapio. The dominium ex iure Quiritium could be transferred from one person to another by the mancipatio, by the in iure cessio or in the case of res nec mancipi, by simple traditio. It can be seen that the transfer of dominium ex iure Quiritium was very complicated, especially for res mancipi. Over time it happened more frequently that a res mancipi was sold only by traditio: in this way the buyer did not have the dominium of the thing, but, because he had all the requirements, he could obtain the dominium with the passing of time, through the use of the usucapio. So the problem arose of protecting the situation of who had bought a res mancipi only by traditio and was waiting for usucapio: he could not bring action using the actiones to protect the dominium ex iure Quiritium, as the rei vindicatio, because he had not yet acquired the dominium, but it is clear that he was nevertheless worthy of legal protection. The actio Publiciana solved this problem of lack of rules: the buyer of a res mancipi through traditio who was dispossessed by the alienant or by other persons could act with actio Publiciana, an action that imitated rei vindicatio, except for the fiction that the time required for usucapio had already passed, so the plaintiff had already obtained the dominium. The object of the fiction is the passing of time, to which is linked the legal effect of the usucapio. Thanks to this fictitious action the in bonis habere was developed, at the level of praetorian protection, that is an absolute right, similar to dominium, granted by the praetor, more responsive to social-economic evolution.
f) Lex Iunia Norbana- Latini Iuniani.
The lex Iunia Norbana, issued in 19 A.D., is based on a very singular fiction. This law is about slaves that had been set free, but not according to solemn rite, and so, with their freedom, they did not acquire Roman citizenship, but Latin citizenship, to be precise they become Latini Iuniani. The ius honorarium had already granted the protection of the Law to slaves who had been freed without the formality established by the ius civile, considering them as if, de facto, they were free and protected them in court, but their property was not protected and it was still owned by their old masters. To obviate this consequence the lex Iunia Norbana gave Latin citizenship to these liberti, making them equivalent to Latini Coloniarii in regards to ius commercii. In Roman law the status of freedom can not be separated from the status of citizenship; the slaves that had been freed without the observance of the rules of ius civile, not obtaining citizenship, would not obtain freedom either. This appeared very unjust, but to the conservative spirit of Roman jurists it was not permissible to concede Roman citizenship to those freed without all the formality of granting freedom as specified in the ius civile. The concession of latinitas to the freed through lex Iunia Norbana, and the equalizing of them to latini Coloniarii in the ius commercii seemed an equitable solution. The logical consequence of the concession of freedom and Latin citizenship should have been the application of the Latin successional system to those liberti. Nevertheless it seemed unjust to deprive the patroni of the inheritance of those freed, so the law deprived them not only of the testamenti factio but also of the possibility of succession: at their death their estate came back to their former owners. To obtain this result the lex Iunia Norbana established the fiction that the same statute had not be issued, so pretending that the goods of those liberti were only a peculium provided by the dominus. So Latini Iuniani lived as freemen, but died as slaves. This fiction is very strange: the non issuing of the lex Iunia Norbana in the norms of the law itself, it is " a legal reality that denies itself, the law that considers itself, absurdly, inexistent".
We can conclude that fictions in Roman law principally consisted (with the exception of fictio civitatis) in suppositions about elements of fact, often the passing of time that was fictitiously anticipated or delayed. In the fictions there was a formal respect for the rules of ius civile, that nobody dared openly contradict, but they truly were altered and deprived of their contents. The fictiones were mechanisms to adapt (with the ius civile as the reference point never formally contradicted) the law - especially that of courts - to the changing social-economic needs. These operations came through the imperium of the praetor in the ambit of the ius honorarium or through specific statutes (that, it is important to notice, did not dare abrogate or expressly modify the rules of ius civile) and had for motive reasons of fairness.
Fiction and virtual reality in the informatics evolution of private law in the continuity between substantive law and procedural law.
The fictio iuris has assumed a negative feature in recent times, especially for positivistic conceptions of law. Even the term "fiction" appears negative, a synonym of falsity, simulation and illusion. But not everything unreal is considered detestable to our modern eyes: virtual reality is not only approved of but it is often preferred. The primary meaning of "virtuality" is "potential to bring about a particular act or to produce a particular effect". For virtual space we mean the so called cyberspace, that virtual interactive habitat generated by the computer, which is a "no place" because it does not physically exist, decentralized and characterized by a spontaneous order. Sometimes fiction and virtuality blend: there are videogames, role-play games, hypertexts, etc.. Current legal systems, especially of civil law, are based on an almost exclusive fount of production: the law. Positivistic conceptions, nowadays preponderant, see the fictio as a useless hypocrisy. The legal fiction is considered "one of legal artifice, widely used in all legal systems, it is that in which a fact is considered as existing or as not existing, independent from the worry of ascertaining the truth and at times even in known contrast with it. This is with the aim of linking to the existence or inexistence of the fact the legal consequences that would follow if this was reality, so making possible the application or exclusion of a norm to the given statement. In other words, instead of modifying existing rules, you artificially modify the fact to which you should apply the rules". If you consider as legal norms only those made by legislator, or, more precisely, the norms made to have formal validity in the legal system, as positivistic conceptions affirm, the fictio iuris can not have a place, because it is in itself the negation of positive legal rule. If the Law is only what is established by positive rules, that can be interpreted, but never distorted; if the judge must be "mouth of law"; if you must always precisely know what is valid in accordance to law; then there is no space for fictio iuris. Certainly there is no space for a fiction with a judicial origin, because if the judge must observe law he can not "pretend" certain facts to apply one rule instead of another. The Italian Constitution says at article 101 part 2 "I giudici sono soggetti soltanto alla legge" ; it means not only that magistracy is independent from political power, but also that judges must apply law, their sentences can be discretional, but never arbitrary and, importantly, the law can be interpreted, but not denatured or violated. So in our legal system there is no place for fictiones iuris with a judicial origin, different to what happened in Roman law. Nevertheless positive law can never perfectly keep up with social-economic reality so the mechanical application of legal norms could create "summum ius, summa iniuria". To avoid those consequences judges often interpret rules, as can easily be seen in the court's opinions. Nevertheless there is an aspect of "not real" that fascinates even the legal world: it is the aspect of virtual reality. We have the Italian "bollo virtuale" which is a payment made directly to a public body, without the concrete application of the tax-stamp on the document of the act for which the tax is required. So the virtual bollo has the legal effects of a tax-stamp, but it is not a tax-stamp, because it has no physical existence. In the case of the bollo virtuale we have a fictio iuris: you pay for a stamp that does not exist in reality and the payment has the legal value of that stamp. So you pretend an event that has not happened (the application of the tax-stamp) to apply a rule (regularisation of acts for tax payment) that otherwise would not be applicable. This fiction has a legislative origin, as all modern fictiones.
This means that, though some authors deny it, the fictio iuris still exists.
Recently Umberto Albanese, comparing Latin principles with the actual Italian law, noticed the presence of various fictions, with a legislative origin, in the Italian legal system. To give simple examples, there are these fictions in the Italian legal system:
"della condizione o del termine aggiunto dagli sposi alla dichiarazione di prendersi rispettivamente in marito e in moglie che, a norma del secondo inciso del secondo comma dell'art. 108 c.c., si hanno per non apposti";
"dell'onere impossibile o illecito che, a norma del primo inciso del terzo comma dell'art. 647 c.c,…" e "…a norma del primo inciso dell'art. 794 c.c., si considera non apposto";
"della condizione che, a norma dell'art. 1359 c.c., si considera avverata qualora sia mancata per causa imputabile alla parte che aveva interesse contrario all'avveramento della stessa".
The legal fiction has a wide application in the "world of not real": the cyberspace. Here I will examine, without being exhaustive, some cases of virtual reality that take place in the legal world using the mechanism of fictio iuris.
Digital signatures.
We all know what a signature is and we have all seen many. The signature is one's own name written on a document. The importance of the signature (in the Italian language called "sottoscrizione") is fundamental in our legal system: the signature allows a certain act to be attributed to the person whose name is written, it certifies the person's will and presence in a certain place at a certain time, it is the fulcrum of written documents, it can be authenticated. Signature has a notable legal value. Is it possible to sign using the computer? If you write your name on a computer screen you do not have your signature because the characters you see on the screen are really a series of electronic impulses, of bits, made by a binary system of a sequence of 0-1, so the name written on computer is not really the writing that appears on the screen, nor what is printed, but it is a group of bytes. The bit, made up of mathematical input, is reproducible by every computer in exactly the same way and potentially in an infinite number of copies identical to the original. It is the exact opposite of signature, that must be attributable to the signatory and not exactly reproducible. Nevertheless it is easy to understand the utility of something with the legal value of a signature in the actual social-economic panorama: we only have to think about e-commerce, about contracts, even for large sums, sent by e-mail… To solve this problem we use complicated mathematical tools, based on cryptography with asymmetrical keys that permit a computer text (which is a series of electronic impulses) to be linked to a specific person and at the same time encrypt the contents to avoid non-authorized access. The operation is easy: you write a legal document on a computer, then, using apposite software you encrypt and "sign" it with your private key, the receiver of the document asks the Certification Authority for the "public key", a different software to decrypt the computer communication which also checks that the document was not changed nor seen by other persons. Obviously the "public key" has no control over the "private key" and vice versa, and it is evident that the "private key" must be kept safe. This system ensures the certainty of the confidentiality of the document, of its integrity and origin, of its unique link to the sender. These aspects allow computer document transmission to be acceptable.
A digital signatures is a program which has the same requirements as a handwritten signature, but it is not a signature: it is a group of numbers and codes, not writing on a paper document. The law in Italy, in accordance with European directive n. 93/1999, Italian d.P.R. 28.12.2000 n.445, makes the legal value of the digital signature equivalent to the one of "sottoscrizione". It is evident it is a fictio iuris or, in other words, a virtual reality made equivalent to the factual reality. The digital signature is not a signature, but, as is written in the directive (art. 2.1) it is "data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication". Data in electronic form are not letters, so it is a fiction to link the legal effects of a handwritten signature on a paper document to a "digital signature". The signature is something personal, freely written, and it tends to be the same for life. The digital signature is a mathematical process, aseptic and impersonal, it is automatically given by the Certification Authority and, to be considered safe, it must be changed regularly and is often limited in value. While handwritten signatures have been the same since the invention of writing, digital signatures are based on a technology that rapidly changes and that could completely change without the necessity of a law change. Handwritten signatures and digital signatures are very different to each other, but the law gives them equal legal value, in fact digital signatures are admitted as evidence in Court.
It is established by Italian law that "i contratti stipulati con strumenti informatici o per via telematica mediante l'uso della firma elettronica qualificata secondo le disposizioni del presente testo unico sono validi e rilevanti a tutti gli effetti di legge", so digital signature is completely equal to sottoscrizione.
Electronic documents
A digital signature is strictly tied to the document which contains it and the document is not really a "writing" nor, in a wider sense "an object you can use for purposes of reference, research, information" but it is a group of algorithms and number sequences, so it is not an object, but something transient, or something "virtual". Obviously writing a text with the computer brings great advantages in time, cost, reproducibility, ease of safe-keeping, transport, referencing, etc. but it is necessary to understand how it must be treated from a legal point of view, especially compared with a traditional paper document.
The Italian civil code art. 2712 regulates the regime of "riproduzioni meccaniche", establishing that " Le riproduzioni fotografiche o cinematografiche, le registrazioni fonografiche e, in genere, ogni altra rappresentazione meccanica di fatti e di cose formano piena prova dei fatti e delle cose rappresentate, se colui contro il quale sono prodotte non ne disconosce la conformità ai fatti o alle cose medesime": the same discipline is used for electronic documents. So an e-mail without any qualification, for example a free e-mail, has the same legal value of a photograph and is considered as a "mechanical reproduction": here too there is a fictio because e-mail is a group of bytes, not a mechanical reproduction, because it lacks in material substance. In accordance with Italian law "Il documento informatico, sottoscritto con firma elettronica, soddisfa il requisito legale della forma scritta": An electronic document, with a digital signature (a weak signature, i.e. software without the technical requirement established by European law) is made equal to "writing". While writing is a res, it has material substance, the electronic document is made up of a series of numbers, it has no material existence: here too reality and virtuality blend.
The basis of the development of e-government is the electronic document with the so called strong digital signature, which not only has the legal requirements of writing, but in Italy is "…piena prova, fino a querela di falso, della provenienza delle dichiarazioni da chi l'ha sottoscritto". Starting from the concept of "strong" electronic document we find a series of diverse applications of electronic contracts with the same legal value as the traditional ones: from online registered letters, to online government services, even online legal proceedings. It is important to note that in all those cases the legislator pretends that factual reality and virtual reality coincide, to give them the same legal effect.
Italian electronic legal proceedings.
Italian electronic legal proceedings, called "processo telematico", already a reality in some pilot centres, shortly to be expanded to others, is not a new civil proceeding, different to that established by Italian codes, but a proceedings carried out with the use of new technology.
Judges, registrars, attorneys, law officers will all have e-mails and strong digital signatures so as to communicate with electronic documents. The dossier will be made up of and kept in electronic documents. Instead of stamps there will be virtual certificates; payments, as well as notifications, will be online. All of the new system is based on the legal concept of digital signature and electronic document: it will bring great savings to the government and will also bring greater control with the ability to immediately see the stage of the proceedings, citizens will have more faith in the justice system, and perhaps there will be less time-wasting. Certainly results will not arrive immediately and there will be a difficult transition period for everybody, but the use of computers and new technology, making virtual reality equal to factual reality, can bring a great improvement to the justice system in Italy, and resolve some of the problems nowadays present in legal proceedings, especially the time taken to resolve cases.
Conclusions.
The applications of fictio iuris in the world of virtual reality, though keeping the essential character of legal fiction of Roman tradition (the supposition of a fact known not to be real), have some special characteristics: they always have a legislative origin and, above all, they do not want elude the reason of the rule, but adapt it to the changing technological development.
For a critical approach.
AA.VV. , Firma digitale e processo civile telematico in un'esperienza di e-Learning,
in Informatica e diritto, vol. XIII , 2004.
U. Albanese, Voce "Fictio Iuris", in Latino Giuridico. Massime, Locuzioni e
Formule giuridiche latine. Traduzione, commento, fonti e riferimenti
sistematici alla legislazione italiana, ESI, 2005 , pp.260-261.
E. Bianchi, Fictio Iuris. Ricerche sulla finzione in diritto romano dal periodo
arcaico all'epoca augustea, Padova , 1997.
G. Briganti, Forma ed efficacia del documento informatico dopo il D.L. vo 23
gennaio 2002, n. 10: "Attuazione della direttiva 1999/93/CE relativa ad
un quadro comunitario per le firme elettroniche" (G.U. 15 febbraio
2002, n. 39), 2002.
Burdese, Recensiones librorum: Felice Mercogliano, Actiones ficticiae. Tipologie
e datazione ( "pubblicazione della Facoltà di Giurisprudenza
dell'Università di Camerino", 48), Jovene, Napoli 2001, pp. XIX + 159,
in SDHI, LXIX, Roma, 2003.
R. Caragnano, E-Government: una sfida vincente per le p.a., in < Filodiritto.it>,
september 2004.
Cherchi, La firma elettronica europea è pronta, in Il Sole 24 ore, 24 february
2003, p.15.
V. Colacino, Fictio Iuris, Nov. Dig. It., vol. VII, Torino,1957, pp. 269-271.
M. Cuniberti, Email, firma elettronica e forma scritta, in <Filodiritto.it>, june 2004.
Gambaro, Finzione giuridica nel diritto positivo, Digesto- discipline privatistiche-
sez. civile, vol.VIII, Torino, pp. 342-353.
R. Guastini, Finzione giuridica nella teoria generale, Digesto- discipline
privatistiche- sez. civile, vol.VIII, Torino, pp. 353-356.
F. Lamberti, Finzioni "nel" diritto e comparazione diacronica, Labeo, vol.47,
Napoli, 2001.
Le Camere di Commercio Italiane, Firma digitale e Registro delle Imprese.
Dall'anagrafe delle imprese la spinta verso l'e-
Government, 2002.
F. Macrì, Prime riflessioni sulla valididtà del documento informatico alla luce dello
schema di decreto legislativo recante codice dell'amministrazione digitale,
in <Filodiritto.it>, january 2005.
M. Manghisi, Guida breve alla "Posta Elettronica Certificata", in <Filodiritto.it>,
march 2005.
L. Martini, La valenza probatoria
della firma digitale: aspetti giuridici e
problematiche connesse, in <Filodiritto.it>, march 2001.
R. Martini, Di un preteso aspetto trascurato dal Biscardi, in Labeo, vol. 48, Napoli,
2002, pp. 259- 263.
M. Mazzeo, Digital Signatures And European Laws, in <Securityfocus.com>,
january 2004.
F. Mercogliano, Actiones ficticiae. Tipologie e datazione, Napoli, 2001.
A. Metro, Recensioni: "Actiones ficticiae", Index, vol.29, Napoli, 2001.
M. Miceli, Recensioni critiche: Mercogliano F., "Actiones Ficticiae". Tipologia e
datazione (Napoli, Jovene, 2001) p. 159, IURA, LII, Napoli, 2001.
Ministro per l'Innovazione e le Tecnologie, Comunicato del 1 gennaio 2006.
Polimeni, Evoluzioni (ed involuzioni) del valore probatorio dell'e-mail, in
<Filodiritto.it>, february 2005.
Poste Italiane, Posta Raccomandata online, in < posteitaliane.it>.
S. Pugliatti, Finzione, Ed. D., vol. XVII, Varese, 1968, pp. 659- 673.
S. Pugno, L'informatica come strumento per le comunicazioni e le notificazioni nel
processo civile, in <Filodiritto.it>, march 2003.
M. Rotondi, Finzione, E.I., vol. XV, Roma, 1949, p. 419.
M. Sargenti, Recensiones librorum: Ernesto Bianchi- Fictio iuris. Ricerche sulla
finzione in diritto romano dal periodo arcaico all'epoca augustea,
Cedam, Padova 1997, pp.516, in SDHI, LXVI, Roma, 2000.
F. Sarzana di Sant'Ippolito, Il legislatore italiano e le firme elettroniche: la crisi del
principio di unitarietà della sottscrizione, in Corriere
Giuridico, n. 10/2003.
L. Turini, Dopo il click attenzione alla firma, in Il Sole 24 ore, 17 november 2003,
p. 20.
Mirella Mazzeo
Q.v. Forcellini, Lexicon totius latinitatis, vol. II, Padova, 1940, ed. 1965, p. 471.
Q.v. Forcellini, ibidem.
Q.v. Ernesto Bianchi, Fictio iuris. Ricerche sulla finzione in diritto romano dal periodo arcaico all'epoca augustea, Padova, 1997, p. 10 and q.v. Sainati, Finzione, in Enciclopedia filosofica, vol.2, Firenze, 1968, p. 1410.
Q.v. Ernesto Bianchi, ibidem., p. 12.
Q.v. Vincenzo Colacino, Fictio Iuris, in NDI, 1957, p. 269-271. The autor, alike Accardi- Pasqualino, fictio iuris, in Nuovo Digesto Italiano, vol. 5 , Torino, 1938, p. 1104 and fol., notices that fictio is an interpretative proceeding. But you have to distinguish fictio from other interpretative procedings, as for ex. analogy.
Among others, Von Bülow, Civilprocessualische Fiktionen und Wahreiten, in Arch. Civ. Prax., 62, 1879; R. De Ruggiero, Finzione legale , in Dizionario pratico di diritto privato, vol.3, Milano, 1923, p. 184; Dekkers, La fiction iuridique. Étude de droit romain et de droit comparé, Paris, 1931; Demelius, Die Rechtsfiktion in ihrer geschichtlichen und dogmatischen Bedeutung. Eine juristische Untersuchung, Weimar, 1858; Carnelutti, Teoria generale del diritto, Roma, 1951, p. 234 and fol. ; Scarpelli, La definizione nel diritto, in Jus, 10, 1959, p. 496 and fol. ; Irti, Rilevanza giuridica, in Norme e fatti. Saggi di teoria generale del diritto, Milano, 1984, p. 38 and fol. ; Lecocq, De la fiction comme Procédé juridique , Paris, 1914.
So it is " a means to economize rules". Q.v. Bianchi, cit. p. 14.
Q.v.. Bianchi, cit. p. 14 and fol..
And, so, based on expressions like "as if" or similar.
That interpretation consents to specify all the hypothesis regulated by the rule, only apparently extraneous, because not clearly mentioned. You can think, for example, of the expansion of reparation for unlawful fact ex art. 2043 Italian civil code (from now c.c.).
Q.v. art. 14 disp. Prel. c.c.. You use the so called analogia legis when you apply to the case a rule concerning a similar case or analogous matter (Q.v. Carcatera, Analogia, EG, vol. II). For ex. It is said that you can insert an onus not only to legacy (art. 647 c.c.) and to deed of gift (art. 793 c.c.), but also to commodate, because it is a free agreement. Analogy can not be used for rules that make exception to general rules, to other rules or to criminal rules (q.v. art. 25 and 27 Cost., art. 1 c.p.).
The old ius civile was characterized by a rigid formalism and a conservative ideal.
Q.v. Demelius, cit.
Q.v.. Bianchi, cit.
The existence is debated of so called Jurisprudenzial fictions, , thought to be only an expositive method.
Q.v. Gai 4, 34.
Successio ab intestato took place in the lack of a will.
E.g. It was the case of a will without mancipatio.
To be precise they were called adgantus proximus, i.e. the adganti that were the closest.
Included in Heredes sui were posthumous children and the grandchildren of a dead son (but not the children of a dead daughter, because they were in the family of their father).
They, because of emancipatio, left the potestas of the pater and became sui iuris persons.
Because of adoptio they passed from the potestas of the pater to the potestas of the adoptive pater.
This society had a great number of sine manu marriages, because of the great value given to blood links and by the failure of gentes.
The rules of ius civile, even if they were felt to be obsolete, were almost never abrogated in a clear way. Often the solution was seeking a remedy for their defects in decrees, especially with the help of the praetores.
Heres was only the one esatablished by ius civile: only h acquired the dominium of the hereditary goods. The praetorian heres was only a bonorum possessor.
The second class, that of legitimi, included all the possible heirs of the ius civile, who were not included among the liberi, such as the partonus of a freed slave. The praetor granted the patronus of a freed slave without children, but with others heredes sui a special bonorum possessio over the half of the hereditary goods. So there was a competition between two classes of possible heirs.
This was the link between husband and wife married sine manu, while the uxor married cum manu was in the first class of possible heirs.
Among them there were also adopted children successively emancipated by the adoptive father.
The succession between mother and children in the praetorian law was possible only if the mother was under the manus maritalis. The link between mother and children was not considered for itself, but only if it was a kind of adgantio. The betterment of the link between mother and children for the succession took place only in II century B.C., through senatusconsultum Tertullianus and Orfizianus, when it was established that the mother and her children were in the class of legitimi.
Q.v. Gai 3, 26.
This was also the case of children of a foreign father who became Roman citizens at the same time as the father who had not been included in the potestas and so they were subject to sui iuris.
The bonorum possessor could not claim that the goods of the de cuius were his, in accordance with ius civile. He could not claim the goods suum esse.
Q.v. Bianchi, cit., p. 271.
To obtain the dominium ex iure Quiritium the usucapio was needed, so Roman citizenship was necessary and the passing of a length of time.
If the price of the sale was not enough to cover all the debts the chirographary creditors were paid pro portione, but they had always recourse against the debtor, if he, in the meanwhile, had reacquired some assets.
This action probably took its name from the jurisconsult Servius Sulpicius Rufus.
Q.v. Gai 4, 35.
This action was issued by the praetor Publius Rutilius Rufus, presumably in 118 B.C..
This action was probably issued at the time of Sulla, perhaps by the dictator L. Cornelius Sulla in 81 b.C..
Loss of freedom was also due to certain penal convictions and to some statutes.
The capitis deminutio media was the loss of citizenship, the capitis deminutio minima was when a person left a family (to enter another family or to become sui iuris).
Q.v. the opinions of Paulus (D. 35, 2,1,1 and D. 38,2,4,1) and of Ulpianus (D.38,16,1 and Tit. Ex corp. Ulp. 23,5).
This action was probably issued by the praetor Publicius in 67 b.C..
Roman citizens had ius commercii, ius connubii, ius suffragi.
Mancipatio was an ancient rite, it required five witnesses, Roman citizens and puber, and the libripens, who weighed the aes rude necessary for the sale using a balance. It took place with ritual deeds and solemn declarations.
Iniure cessio was a sort of simulated action, it took place in the presence of the judge.
Traditio was the delivery of the res from the dominus when there was a right reason for transferring and with the will of tradens and accipiens.
Res mancipi in ancient ages were owned with the mancipium. They were: estates in Roman land, slaves, riding animals and beasts of burden, rights of passage and of water.
According to contemporary scholarship it was at the end of II and the beginning of I century B.C..
The requirements for usucapio were: the possessio of a res habilis, a iusta causa possessionis (for ex. the sale), the passing of some time (the time varied in different periods and with the different things), the absence of impediments (for ex. usucapio was not possible for received goods).
Q.v. Gai. 4, 36.
The seller was the dominus until usucapio took place.
Q.v. Gai. 3, 56.
There were also Latini prisci, citizens of the Latin cities; Latini coloniarii, Roman citizens who lost their citizenship because they moved to Latin colonies, founded by Rome; Latini Aeliani, slaves freed under 30 years of age or freed by a master of less than 20 years of age, against the prohibition of lex Aelia Sentia, they were made equivalent to the Latini Iuniani.
About them they said "vivunt quasi ingenui, moriuntur ut servi".
Q.v. Todescan, Diritto e realtà – Storia e Teoria della fictio iuris, Padova, 2979, p.32.
we can think about electronic proceedings and about computers and the law.
E.g.. internet is not a real place.
The digital flux has no hierarchy, so it it difficult to impose relevant legal rules.
anyone can open a website, blogs, for example.
Q.v. Mario Rotondi, finzione giuridica, EI, vol. XV, Roma, 1949.
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