In this paper the author is exposing the concept of natural persons (individuals) and legal persons (entities) in Serbian mediaeval law. The terms glava (head, caput, kephalē), or sometimes kapa (cap, hood) are used in Serbian legal sources to designate natural persons (individuals). In Serbian mediaeval law, it was mostly churches and monasteries that had the trait of legal persons (entities). Beside them, towns, villages, counties and districts, had some characteristics of legal persons

Šarkić Srđan

Srdjan Sarkic

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Natural persons (individuals) and legal persons (entities) in Serbian medieval law

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DOI:10.2298/ZRVI0845223SUDC:34(497.11)"04/14"SRDJAN [ARKI] (Novi Sad)NATURAL PERSONS (INDIVIDUALS) AND LEGAL PERSONS(ENTITIES) IN SERBIAN MEDIEVAL LAWIn this paper the author is exposing the concept of natural persons (individu-als) and legal persons (entities) in Serbian mediaeval law. The terms glava (head, ca-put, kefalh), or sometimes kapa (cap, hood) are used in Serbian legal sources todesignate natural persons (individuals). In Serbian mediaeval law, it was mostlychurches and monasteries that had the trait of legal persons (entities). Beside them,towns, villages, counties and districts, had some characteristics of legal persons.IIn modern jurisprudence the term individual denotes a single person as dis-tinguished from a group or class, and also, very commonly, a private or naturalperson as distinguished from a partnership, corporation or association.Serbian legal sources used the terms glava (head, caput, kefalh), or some-times kapa (cap, hood) to designate natural persons (individuals). The term glavacould be found in two treaties concluded by Tsar Du{an (September 20, 1349) andhis son and successor Tsar Uro{ with Dubrovnik (April 25, 1357). In both of thetreaties we find the same formula da gredu svoimi glavami,1 that means thatRagusan merchants could freely circulate within Serbia as individuals. In the arti-cle 31 of the Law Code of Stefan Du{an, on parish priests, it is used the expressionand the priest's cap is free (i da jest popovska kapa svobodna).2 It means that par-ish priests, as natural persons (individuals), were exempted of feudal services thatcommoners normally had.Zbornik radova Vizantolo{kog instituta Hßç, 2008Recueil des travaux de l’Institut d’etudes byzantines XßV, 20081 S. Novakovi}, Zakonski spomenici srpskih dr`ava srednjega veka (further on Zakonskispomenici), Beograd 1912, 169 and 179;2 S. Novakovi}, Zakonik Stefana Du{ana cara srpskog 1349 i 1354 (further on Zakonik),Beograd 1898 (reprint 2004), 29 and 164; English translation by M. Burr, The Code of StephanDu{an, Tsar and Autocrat of the Serbs and Greeks (further on Burr), The Slavonic (and East Euro-pian) Review, vol. 28 (1949), 204.Only individuals who were free had full legal capacity. Slaves (otroci) wereowned by their masters and therefore had neither private nor public rights. How-ever, in mediavel Serbia there were several exemptions from that general rule.3According to the Serbian legal sources it is not clear enough at what age fulllegal capacity was assumed. The Charter presented by King Milutin to the monas-tery of Saint Stephen in Banjska (1313–1318) says that a widow, who has a littleboy, should hold the whole village until her son is grown-up (a sirota koja imamala sina da si dr`i vse selo dogde joj sin podraste).4 It is clear that persons underage could not enter into formal transactions, but what was the age when naturalpersons (individuals) asumed full legal capacity? So-called “Justinian'sL a w ”i nArticle 1 provides that full legal age was asumed at the age of 25.5 Serbian transla-tion of The Syntagma of Matheas Blastares exposes very complicate Byzantinesystem of three ages existing in the life of natural persons:1 )young persons(mladi, anhboi) under puberty (14 male,1 2female) had no legal capacity and theywere under tutorship (pristavnik, tutela, epitropoj); 2) individuals who havereached puberty were, nevertheless, too young to administer their affairs and theywere under cura (pe~alovnik, kouratwr, guardianship over minors) until the age of25, either male or female;3 )a person who reached perfecta aetas at the age of 25,has full capacity to act on its own behalf.6 But, according to Byzantine law fourmore years were required for establishment (ustamenienije, apokatastasij) of alllegal rights of an ex-minor, so that the conscent of a curator was no more neededat the age of 30.7 Further, according to remainig legal sources it is impossible tosay whether those Byzantine rules were applied in mediaeval Serbia and whetherfull legal capacity was assumed at the age of puberty (14 male,1 2female).8224 Srdjan [arki}3 Considering all the facts given by Serbian legal sources it is evident that otroci could nothave simply be called slaves, and that the term had few different meanings (see R. Mihalj~i}, Otroci,Istorijski glasnik 1 (1986) 51–57 = Pro{lost i narodno se}anje, Beograd 1995, 233–240; See also thearticles Otrok and Rob, Robinja, by Dj. Bubalo in The Lexicon of Serbian Middle Ages, Beograd1999, 483–485 and 622–625). Basically, otroci were on the bottom of the social ladder; they were aclass of people with a social status between serfs and slaves. But, the close relationship between anotrok and his master might create a relation of confidence, so that some of very important missionscould be conferred to an otrok. It is well known that in Ancient Rome some very important dutieswere conferred to the slaves and especially to the free-made (libertinus). L. Margeti}, Bilje{ke omeropsima, sokalnicima i otrocima, Zbornik radova Pravnog fakulteta u Novom Sadu XXV,1 – 3(1991) 113, considers that otroci are social class similar to the noblemen servants in mediaevalCroatia or ministeriales of German law. On legal capacity of otroci see T. Taranovski, Istorija srpskogprava u nemanji}koj dr`avi, III deo, Istorija gra|anskog prava, Beograd 1935, 3–6 (= Klasici jugo-slovenskog prava, knjiga 12, Beograd 1996, 525–528).4 Zakonski spomenici, 627, LXXIII.5 A Solovjev, Zakonodavstvo Stefana Du{ana cara Srba i Grka, Beograd 1928, 236 = Klasicijugoslovenskog prava, knjiga 16, Beograd 1998, 540.6 S. Novakovi}, Matije Vlastara Sintagmat (further on Sintagmat), Beograd 1907, 308. Greektext edited by G.A. Ralles — M. Potles, Matqaiou tou Blastarewj Suntagma kata Stoiceion,Athenai 1859, 293–294.7 S. Novakovi}, Sintagmat, 144–145.8 According to the opinion of T. Taranovski, op. cit.7 ,it is not possible to suppose that such acomplicate system could have been applied in mediaeval Serbia, because of the simplicity of SerbianIIIn Serbian mediaeval law it was mostly churches and monasteries that hadthe trait of legal person (entity — an organization entitled to acquire and enjoyrights and duties, particularly considering their property). Beside them, towns, vil-lages, counties and districts also had some characteristics of legal persons.Serbian monarchs were giving land and estates to churches and monasteriesand that way they became the subjects of property rights. To designate the ecclesi-astical entities Serbian legal documents use different terms. For exemple, in theChrysobull from 1308 King Milutin says that he gave everything to the church ofthe Holy Virgin of Hilandar (i sija vsa ja`e pridaa kraljevstvo mi crkvi SvetijeBogorodice Hilandarskije).9 T h es a m et e r m— church (crkva) we found in theChrysobull of Tsar Stefan Du{an from 1346: Let that all have the church of SaintStephen (da ima crkva Svetago Stefana).10In some legal documents the term hram = temple, shrine (the Holy Shrine ofSaint Nicolas in Vranjina, the Shrine of Holy Virgin in Hilandar, the Shrine of theSaint Protomartyr Stephen in Banjska) is used instead of the word church(crkva).11 But, most frequently we found the term monastery (manastir). Alreadythe Great @upan Stefan Nemanji}, in his Charter to Hilandar (1199–1206) saysthat he gave the villages to the monastery (dah sela manastiru).12 The monasteryof Saint Stephen in Banjska, the monastery of Saint George near Skopje, the mon-astery of Saint Nicolas Mra~ki, the monastery of Holy Virgin in Htetovo, the mon-astery Treskavac, and many others,13 are mentioned in the same fashion (as legalpersons). However, one could note that the name monastery is often replaced withthe term church. In Serbian legal documents Hilandar, for example, is equallycalled a church and a monastery.To designate the legal persons Serbian monarchs sometimes used figurativeexpressions, saying that they have given the estates to the eponymous saint of themonastery, so the saint has a feature of a legal entity. We shall quote a few exam-ples: King Stefan Vladislav writes between 1234 and 1237 that he gave the villageof Branike to the Most Pure Virgin (Ja Stefan Vladislav, sa pomo{tiju bo`ijejukralj… pridah to selo Branike Pre~istoj Bogorodici).14 King Stefan De~anski saysNatural Persons (Individuals) and Legal Persons (Entities) In Serbian Medieval Law 225society. It is much more likely that the legal age was assumed at the age of puberty. As the argumentfor his opinion the author adds that all rules on legal age were omited in the abridged version ofSyntagma. See also S. [arki},Osticanju poslovne sposobnosti u srednjovekovnom srpskom pravu(On Acquirement of Legal Capacity in Serbian Mediaeval Law), ZRVI 43 (2006), 71–76. The samepaper, with some amendments, has been published in Italian as well: Sull’acquisizione della capacitadi agire nel diritto medievale serbo, Diritto e Storia, Rivista internazionale di Scienze Giuridiche eTradizione Romana, N. 6 (2007), 1–6.9 Zakonski spomenici, 478, XV.10 Ibid. 631, V.11 Ibid. 579, V; 448, VI; 622, I.12 Ibid. 325, I.13 Ibid. 631, I; 608, I; 644, X; 657, II; 664, I.14 Ibid. 386.that he gave a small gift to the Most Pure Mother of God from Hilandar (Tem`e iaz va Hrista Boga verni Stefan IV po milosti Bo`ijej kralj vseh srpskih i pomorskihzemalj i ~estnik Grkom… prinesoh mali si dar… pre~istoj Materi Bo`ijej Hilan-darskoj).15 Tsar Du{an writes that he gave the estates to the Saint Nicolas (…i sijeprilo`i carstvo mi svetomu Nikole).16In some legal documents the entity of church or monastery was expressed asthe home of a certain saint. For example the home of the Holy Virgin from Hilandar(dom svetije Bogorodice Hilandarskije),17 the home of Saint Stephen in Banjska(dom Svetago Stefana u Banjskoj),18 the home of Our Almighty (Pantokrator) Lord(dom Gospodnevi Bogu pandokratoru),19 the home of the Savior (Dom Spasov) in@i~a,20 the home of the Holy Virgin in Ston (dom Svetije Bogorodice u Stone),21 etc.It is evident that the figure of the saint expresses the concept of churches and mon-asteries as the institutions, i.e. legal persons (entities).According to the opinion of some authors towns had the feature of legal per-sons as well.22 The arguments of those historians are based on two articles of theLaw Code of Stefan Du{an and two charters. First, article 124 being as follows:Greek towns which the Lord Tsar hath taken, whatsoever charters and decrees havebeen granted to them, whatsoever they have and hold up to the time of this Council,let them hold, and it is confirmed to them and let no man take aught from them(Gradove gr~ci, kojeh jest prijel gospodin car, {to im jest u~inil hrisovulje i pro-stagme, {to si imaju gde i dr`e do sijega-zi sabora to-zi da si dr`e i da im jest tvrdo, ida im se ne uzme ni{to).23 This means that towns conquered from Byzantium (Greektowns) possessed real or immovable property. Likewise in article 137 we find gen-eral confirmation of all chrysobulls granted to the towns.24 One can conclude thatthe towns were treated as legal persons (entities) enjoying the absolute ownershipon their lands. To support such a statement we shall quote two charters of Serbianmonarchs: in the first charter King Stefan Radoslav (1230, July 15) confirms to themaritime town of Kotor all its property rights on lands and vineyards (confirmo tuttili orti et le vigne loro);25 in the second charter Tsar Du{an 1351 confirms propertyrights of the same Kotor town on the county (`upa) of Grbalj.26226 Srdjan [arki}15 Ibid. 413, I. King Du{an confirms the gift of his father Stefan De~anski (1334–1346).16 Ibid. 435, IV.17 Ibid. 480, V.18 Ibid. 630.19 Ibid.6 4 6 ,II.20 Ibid. 471, VIII.21 Ibid. 600, I.22 For more details see Taranovski, op. cit. 25–26.23 S. Novakovi}, Zakonik,9 5and 221; Burr, 521.24 Article 137: My charters which I have granted to the towns of my Empire, that which is writ-ten in them may not be changed, even by the Lord Tsar himself, nor by any other man. The charters arefirm (Hrisovolji carstva mi {to su u~injeni gradovom carstva mi, {to im pi{e, da im nest voljan potvoritini gospodin car ni in kto. Da su hrisovolji tvrdi). Burr, 524; S. Novakovi}, Zakonik, 104 and 227.25 Zakonski spomenici,2 4 .26 Ibid. 31–32.The above mentioned documents refer only to Byzantine (Greek) and mari-time towns as legal persons. What was the situation regarding towns in the interiorof Serbia? The Law Code of Stefan Du{an (article 126) mentions urban landaround a town (gradska zemlja {to je okolo grada),27 but we do not have any proofthat the land was absolute ownership of the town. Anyway, it is very hard to saywhether the towns in Serbia were considered as legal persons, because we disposeonly scarce information in the sources.We have much more data regarding villages as legal persons (entities) andsubjects of property rights. Article 74 of the Law Code of Stefan Du{an providesthat villages have the right to pastures.28 But, it is not clear whether the villageshad ownership of the pastures or had only a servitude. Article 79 provides: But ifvillages dispute between themselves touching land or boundaries, let them sue bythe law of the Sainted King29 from the time of his death… (A za me|e i za zemlju{to se potvoraju sela me|u sobom, da i{te sudom ot svetago kralja, kadi se jeprestavil…).30 So, the villages could be either plaintiff or defendant in a lawsuit,which proves that they were considered legal persons in the civil law cases. Hadthey no property rights to their land, villages could not have had any judicialclaim.According to the article 75 of the Law Code of Stefan Du{an we can con-clude that counties or districts (`upa) had some rights to pastures, as well.31 But,this is not sufficient to assert that counties and districts in mediaeval Serbia hadfeatures of legal persons (entities).IIILegal persons (entities) administered their affairs and effected their rightsthrough their legal agents. Serbian legal sources give us information only onchurches and monasteries as legal persons. Legal agents of monasteries were theirsuperiors (hegoumenos, hgoumenoj) who could enter into formal transactions inthe name of a monastery or a church. However, monastery superior could performimportant legal acts only with the consent of elder monastery brothers. This wasclearly written in the Tsar Du{an's Charter to the monastery of Saint ArchangelsMichael and Gabriel (1348): And the monastery superior can do or give nothingNatural Persons (Individuals) and Legal Persons (Entities) In Serbian Medieval Law 22727 S. Novakovi}, Zakonik,9 7and 223; Burr, 522.28 Article 74: Let village pasture with village, where one village, there also the other. Only le-gal enclosures and meadows may not be grazed (Selo sa selom da pase; kude jedno selo, tude idrugo:razve zabel zakonitih i livad zakonitih nikto da ne pase). Burr, 212; S. Novakovi}, Zakonik,5 9and 191.29 The Sainted King, in the Code, always means Milutin, Du{an’s grandfather.30 Burr, 213; S. Novakovi}, Zakonik,6 3and 193.31 Article 75: No district my graze its stock within another district. A n di fi nt h ed i s t r i c tt h e r ebe a separate village which belongs to any lord, or to my majesty, or is a Church village, or belongs toa gentleman, that village shall graze with the rest of the county district and no man shall forbid it to sograze (@upa `upe da ne popasa dobitkom ni{ta. Ako li se najde jedno selo u to-zi `upe u koga ljubovlastelina, ili jest carstva mi, ili jest crkovno selo, ili vlasteli~i}a, onomu-zi selu nikto da ne zabranipasti, da pase kude i `upa). Burr, 212; S. Novakovi}, Zakonik,6 0and 191.without agreement with oikonomos and ba{ta ‰fatherŠ and ekklesiarches anddocheiarios (I da ne voljan iguman ni{ta otdati ni u~initi bez zgovora ikonoma iba{te i eklisiarha i dohijara).32 The sale of monastery land could be performedwith the agreement of the whole monastery community.33Article 35 of the Law Code of Stefan Du{an explicitly states that the supe-rior is the legal agent of the monastery: And my majesty has granted to thehegoumenes their churches, that they be rulers of their goods, both mares andhorses and sheep and everything else and that they may do with them whotsoever isdeemed suitable and appropriate and lawful, and as is written in the chrysobuls ofthe holy founders (I predade carstvo mi igumenom crkvi; da obladaju vsom ku}om,kobilami i konjmi, i ovcami, ii n e mv s e m , i o vsem da su voljni {to jest prili~no popute i po pravde i kako pi{e hrisovulj svetih ktitor).34 A superior had to be ap-pointed with the consent of the monastery community and the superiors must behonest persons: Hegoumenes may not be appointed without the consent of theChurch; as hegoumenes in monasteries good men shall be appointed, who will en-rich the Church, the House of God (Igumni da se ne postavljaju bez dela ot crkve;igumni po manastireh da se stave dobri ~loveci, koji }e crkov sto`iti, Dom Bo`ji).35Finally, the Law Code orders that superiors perform legal acts with the consent ofthe community: Hegoumenes shall live in the monasteries according to the lawand the elders shall confer (Igumni da `ivu u kinovijah po zakonu, zgovaraje se sastarci).36Du{an's Law Code did not however issue the rule that a monastery'sl a n dcould be sold only with the common agreement of the whole monastery commu-nity. This gap in the law could be explained by the fact that the sale of monasterylands in practice was very rare. In a case when a monastery wanted to sell its land,it should have obtained a special confirmation of a monarch, that was to be writtenin the separate charter.228 Srdjan [arki}32 Zakonski spomenici, 697, CLXIV. Edition S. Mi{i} — T. Subotin-Golubovi}, Svetoarhan-|elovska hrisovulja, Beograd 2003, 111.33 Ibid. 485, II.34 Burr, 205; S. Novakovi}, Zakonik,3 3and 169.35 Burr, 201; S. Novakovi}, Zakonik,1 9and 156.36 Burr, 201; S. Novakovi}, Zakonik,1 9and 157.Sr|an [arki}FIZI^KA I PRAVNA LICA U SREDWOVEKOVNOMSRPSKOM PRAVUU sredwovekovovnom srpskom pravu fizi~ka lica ozna~avaju se termi-nima glava i kapa. Ti izrazi sre}u se u dva ugovora sa Dubrovnikom (glava)iu ~lanu 31 Du{anovog zakonika (kapa). Nije, me|utim, sasvim jasno u kom uz-rastu su fizi~ka lica sticala punu poslovnu sposobnost.Srpski pravni spomenici naj~e{}e spomiwu crkve i manastire kaopravna lica. Ponekad se koriste i figurativni izrazi, tako {to se ka`e daimovinom manastira raspola`e eponimni svetac ili „dom svete Bogorodi-ce“, „dom Gospodnevi Bogu pandokratoru“, „dom Spasov“, „dom Svetago Ste-fana“ i sli~no. Neka svojstva pravnih lica imali su i gradovi, sela i `upe.Pravna lica ostvarivala su svoja prava preko svojih pravnih zastupni-ka. Srpski pravni spomenici daju nam samo podatke o pravnim zastupnicimacrkava i manastira. Pravne poslove u ime manastira sklapali su wihoviigumani uz saglasnost manastirske zajednice. Nemamo podataka ko je istupaou ime gradova, sela i `upa.Natural Persons (Individuals) and Legal Persons (Entities) In Serbian Medieval Law 229

Natural persons (individuals) and legal persons (entities) in Serbian medieval law

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