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Law Of Property Notes

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Supervision 3 The Law of Property (I) Property Distinctions Incorporeal things e.g. debts, cannot be possessed and cannot be acquired by usucapio or conveyed by traditio. Res communes - things common to all men e.g. the air, the sea. They are not owned but law recognises the right to enjoy them. Res publicae - things belonging to the State such as public roads, ports etc... Res universitatis - things owned by corporate public bodies such as municipalities e.g. theatres, public streets etc... Res nullius - things belonging to noone e.g. wild animals; abandoned property and 'divine' things. The seashore - everyone had the right of access to the seashore but no one could acquire any part of the seashore though shelters built under authorisation became the property of the builder.

"The Romans think in terms of actions not of rights, but in substance one action asserts a right over a thing, the other a right against a person"

Fungibles and non-fungibles: Fungibles are things that exist primarily in quantities e.g. money or grain. Nonfungibles were things which had a separate identity e.g. a book or land. Res mancipi and res nec mancipi: This distinction dated from Rome's earliest period and survived until it was abolished by Justinian. According to Gaius res mancipi were slaves, beasts of draught and burden (oxen, horses, asses and mules), Italic land and rustic praedial servitudes. Everything else was res nec mancipi. The practical distinction was that dominium over res nec mancipi could be transferred merely by informal delivery, whereas res mancipi could only be transferred by mancipatio and in iure cessio; a mere delivery is ineffective to pass ownership. By the later Republic the categories of res mancipi had become closed and arbitrary e.g. camels and elephants which were beasts of burden but were still not res mancipi.

Ownership & Possession: This is the most fundamental distinction of all in the law of property. For the most part, possession is the foundation of ownership e.g. usucapio depends on possession; traditio merely required exchange of possession.

"Ownership has nothing in common with possession" Ulpian

Supervision 3 The Law of Property (I) The Concept of 'dominium' Lacked a precise concept of ownership in early Law, but the late social and economic changes of the later Republic stimulated a clearer notion of ownership. Dominium therefore resulted from the jurists work of the late Republic and early Empire in order to accommodate the increase of property in existence. The owner's remedy was the vindicatio - standard proprietary remedy securing the rights of the owner. There were two stages: (1) an action ad exhibendum (against the person who had the thing) to produce the disputed thing in court (2) the rei vindicatio in which the owner simply had to prove he was the owner.

"the ultimate legal title beyond and above which there was no other"

"There was, in essence, very little day-to-day distinction between the two concepts, it was instead the Romans' willingness to maintain the idea of absolute ownership that created the sophisticated civil remedies for possessors."

Restrictions on dominium:

1. The XII Tables restricted the demolition of houses; at least 5 feet between neighbouring properties.

2. Non-statutory restrictions e.g. neighbours could not deprive each other of a certain quantum of light.

3. Waste - irresponsible extravagance viewed as obnoxious (prodigals)

4. Animate Property - could not treat a slave exactly how you wished.

Peregrine Ownership - as foreigners could not own property, not having commercium, they had legal protection through this form of ownership and by a modified form of the vindicatio, which inserted the fiction of citizenship to allow them to Provincial Ownership - outside of private ownership, since it belonged either to the Roman people or the Emperor, though it was usually held by private individuals who paid a rent to the appropriate authority.

In order to have dominium, a person had to have: (1) commercium (2) property had to be capable of being privately owned (3) property acquired through an appropriate method of acquisition.

Supervision 3 The Law of Property (I) Bonitary ownership If a person acquired res mancipi from its dominus other than by mancipatio or in iure cessio e.g. by traditio, he did not get dominium but mere bonitary ownership of the thing. If he possessed a movable for a year or land for two years then his possession would ripen into dominium through usucapio. The period in which he held these things was when he was the bonitary owner. The ius civile did not give the bonitary owner any protection, and by the end of the Republic the praetors intervened to protect the bonitary owner. This depended on whether the bonitary owner was the claimant or the defendant.

Who can use the actio Publiciana?
(a) Bonitary owner (b) The bona fide possessor in some circumstances (c) Any other possessor undergoing usucapion.

It was Byzantine jurists who invented the term 'dominium bonitarium', the Romans would never have used this term. Bonitary owner as defendant: C (dominus) sues with vindicatio, D has the exceptio rei venditae et traditae. If C was not the dominus then the bonitary owner could rely on possessory interdicts. Bonitary owner as claimant: Possessory interdicts were limited to the recovery of possession. In approx 67 BC the praetors introduced the actio Publiciana which gave the bonitary owner protection against the dominus and any third party. In effect, the actio Publiciana was a fictitious vindicatio so it directed the iudex to give in favour in the C, as if he were the dominus through usucapio. Had to satisfy the requirements for a legal usucapio: held in iusta causa and in good faith. Dominus as defendant: Bonitary owner sues dominus, the dominus could rely on the defence of being the rightful owner exceptio iusti dominii but the bonitary owner could counter this with the reply that the thing was sold and delivered replicatio rei venditae et traditae.

Supervision 3 The Law of Property (I) Bona fide possession If a person acquired property in good faith from someone who he believed to be capable of transferring ownership, but who, in fact, was not so capable, he becomes the bona fide possessor. The bona fide possessor could use the actio Publiciana against any third party but not the dominus as the dominus could reply exceptio iusti dominii to which the bona fide possessor could not use the exceptio rei venditae et traditae as he had not acquired the thing from the owner.

Special Cases In cases where two persons were entitled to the actio Publiciana one being the bonitary owner and one being the bona fide possessor, the bonitary owner would win as D or C X sells and delivers it to Y, it leaves Y and goes back to X who subsequently sells and delivers it to Z. The earlier bona fide possessor would succeed in this situation, but if the goods are acquired from different non-owners, then the one in physical possession succeed.

"we may say that during the late Republic, another type of fully developed ownership appeared by the side of dominium" The original scope of the actio Publiciana 2 disputing views:


(1) Traditional view supported by De Vissher held that the actio Publiciana was created for the bonitary owner and later adapted to cover bona fide possessors - based on the interpolated Ulpian text in the Digest.


(2) Alternative view, supported by Wubbe is that it was introduced primarily for bona fide possessors, in order to get round the difficulties of bringing evidence in the vindicatio by the bona fide possesors, but came to be applied to bonitary owners.


Present both views and say that the issue is undecided.

Supervision 3 The Law of Property (I)

"The characteristic of ownership being unique and indivisible was only verbally true"

The wider consequences of actio Publiciana on the law of property:

Abolished the need for mancipatio or in iure cessio as the recipient of res mancipi by traditio was, for all intents and purposes, the owner. The formal methods of transfer gradually diminished in significance. The Romans never called the Publician claimant the 'owner' - the only form of ownership that existed was dominus. However, there were differing views on the division of dominium: (1) Gaius observes that in early times, ownership was single and undivided but then dominium was divided so that one person could be civil law owner (dominus) and another could "hold the thing among his goods". (2) Professor Birks argues that the dominium was not divided, but the distinction was instead between ius civile (dominus) and ius honorarium (which created the other forms of ownership).

Praetorian Ownership bonitary ownership & bona fide possession.

tertium quid between ownership and posssession

Roman jurists say there is only one type of ownership
- dominus, but it seems the actio Publiciana gave way to a 3 fold division: (a) those who could win the vindicatio (owners) (b) those who could win the actio Publiciana and also defeat the owner (bonitary owner) (c) those who could win the actio Publiciana but not against the owner (bona fide possessors)

If we look beyond the superficial level of Roman terminology and at the substantive practice, we could say that during the late Republic another type of fully developed ownership appeared by the side of dominium. Alternatively, it could be argued that the existence of bonitary ownership and bona fide possession stood as a strong exception to the principle of the indivisibility of ownership.

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