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DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
the change of an individual’s place of living. The alteration of domicile, nonetheless,
must have been voluntary, based on a free-will decision. There is nothing to prevent
anyone from having his domicile wherever he wishes, for the reason that he is not
forbidden to do so.
15
In relation to the above mentioned, Ulpianus Digesta referred to a diverse
concept of domicile which was characterised by not only a legal but descriptive
content as well. Its conceptual role was more efficient. The concept acquired some
attributes of an abstract legal construct:
Domicilium re et facto transfertur, non nuda contestatione.
The change of domicil is shown by facts and actions, not by mere words.
16
This concept integrated
facto
and
nuda contestatio
into the conceptual structure.
The concept presupposed an objective and subjective conceptual component:
factum
et animus
. A mere manifestation of will was not sufficient. A permanent settlement, as
opposed to a transient settlement, was distinguished by contention. The person must
have declared, by noticeable action, a firm intent to reside in the place determined
by his choice.
Animus
must have corresponded, among other things, to a personal
state of mind.
Factum
assumed entire integration into an urban community, into its
social and religious life.
17
Factum
represented the real belongings of an individual and his integration
into the social life of the community. Domicile must have resulted in the permanent
home of a person and eventually his family, so as to constitute the centre of his affairs.
A temporary dweller lacks both of the aspects mentioned. A domicile was appended
by the second conceptual component, i.e
contestatio
: a declaration or verbalisation of
will. Apparently, such contention was required by law in the Republican era with
reference to the introduction of local census.
Domicile and
origo
were two grounds of connection with a particular urban
community. The conceptual role of domicile as well as
origo
must have been
sufficiently effective.
Domicilium
and
origo
were two forms of the legal bond to the
urban community. The citizen himself and other members of the urban community
as well were subject to the same jurisdiction and law. Whereas
origo
, as a legal
relationship, embodied reciprocal rights and obligations, no rights were governed
expressly by the domicile. An individual benefited from advantages and enjoyments
resulting from the factual consequences of his domicile. Simultaneously, the rights
could have been established by the mere will of an individual.
18
15
Ibid
.
16
D.50. I.20. Paul.
17
MOATTI, Claudia,
op. cit.
, p. 136.
18
SAVIGNY, Friedrich Carl,
op. cit.
, p. 65.