Duhaime's Law Dictionary


Precarium Definition:

Latin: the giving of land as a reward or to secure a debt.

Related Terms: Feudal System, Patrocinium

Law professor Roscoe Dorsey wrote, in his 1938 article:

"Associated with patrocinium was ... Roman element called precarium.

"Ulpian wrote: 'A precarium is granted to a petitioner in answer to his prayers and for his use.' It was the prayer or petition which characterized precarium. One made an urgent petition and received only the enjoyment of the land, which could have been revoked at any time during life; death terminated the arrangement. It was not based on contract, but was superior to a lease as it conferred possession.

"Often embarrassed debtors would surrender their lands to their creditors and receive them back as a precarium."

In his 1980 book, David Walker also writes of patrocinium in the context of precarium, suggesting, as many scholars have, that both were predecessors of what has become known as the feudal system:

"... the precarium (was) a form of letting land as a reward or to secure a debt.

"The precarium gave rise to the precarium fundorum, whereby the poor landowner surrendered his lands to the lord and received them back as a precarium, to be held under the protection of the (creditor) lord.....

""When the Franks conquered Roman Gaul they were already familiar with the institution of the comitatus, a personal relationship between a lord and a group of men, with mutual duties of faith and service, and seem to have adopted the idea of the precarium, which developed rapidly and took root as standard institutions of the Frankish kingdom.

"Moreover, the great men of the land were already of the comitatus of the King and members of his household and bodyguard and began to adopt the precarium tenure, becoming clients of the King or his greatest lords.

"The Church also·seems to have employed the precarium tenure.

"Gradually the tenure came to be more strictly defined and to be the subject of written contract. The duration of the precarium came to be for life, and then for a series of lives, and the services due in return were more closely defined."

REFERENCES:

  • Dorsey, Roscoe J.C., Roman Sources of Some English Principles of Equity and Common Law Rules, 8 Am. L. Sch. Rev. 1233 (1934-1938)
  • Walker, David, The Oxford Companion to Law (Oxford: Clarendon Press, 1980), page 466

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