#3563 - Property - Roman Law

Classification of things:

• Res corporales/incorporales – tangible objects vs. a right to which there is an economic value attached

• Res publicae/privatae – things in public ownership e.g. an aqueduct v things in private ownership

• Res mancipi/nec mancipi – slaves, beasts of burden , Italic land, rustic praedial servitudes. Could be transferred only by mancipatio vs all other things. Could be transferred by other means.

• Res divini juris: in divine ownership and could not be owned by anyone.

• Res communes – things owned by all e.g. the sea

• Res universitatis – things owned by a corporate body/municipality e.g. a theatre

• Res nullius – things which could not be owned or had no current owner

• Res mobiles/immobiles – movables and immovables e.g. land.

• Fungibles/non-fungibles – things that were consumed through use and could be replaced by others of the same kind e.g. money, wine, flour.

Ownership

• Fundamental difference between ownership and possession that is very important. One may lose possession but retain ownership.

• Dominium = the ultimate legal title above and beyond which there was no other.

• Peregrine ownership – foreigners did not have commercium and so could not hold dominium, but a form of ownership was recognised. They may have asserted this through a fictitious vindicatio.

• Bonitary ownership – resulted where there was some failure in conveyance e.g. res mancipi conveyed by traditio. This person would be on the way to ownership by usucapio. In theory this person was not owner and the owner could try to vindicate the item from him. He would have the exceptio rei venditae et traditae under the actio Publiciana, which announced that dominus had sold and delivered it to him. The availability of the exceptio is what rendered him a bonitary owner and praetor would rule in his favour, creating the legal fiction that usucapio had elapsed and that he was dominus – a fictitious vindicatio. As a result of the exceptio, the bonitary owner had a right in rem that prevailed against the entire world, including the dominus.

Possession

• Possession was not a right. It was a state of control – a person could easily possess in bad faith. Ownership was legal sovereignty, but possession was factual sovereignty.

• Ownership could be attained through possession by means of usucapio. So although possession wasn’t a legal state, it had legal consequences.

• Not everyone with factual control was a possessor – where someone was contractually holding in another’s name, he did not gain possession e.g. borrowers, hirers and depositees.

• Possession came through physical control (corpus) and intent to exert that control (animus - argument by Ihering, as opposed to Paul’s acting like the owner argument). There is academic debate over which of the two is more important to be a possessor (Savingy v Ihering – former thinks animus, while the latter thinks corpus – Ihering’s conception of possession is therefore much broader).

• Possessory interdicts would be available if possession had been taken nec vi, nec clam, nec precario (without force, stealth, or permission).

• Bona fide possessor – similar to the bonitary owner but he acquired from a non-owner and thus could argue the exceptio against dominus. Thus the bonitary owner had a right in rem (under the actio Publiciana) which prevailed against the entire world except the dominus (and the bonitary owner) – fictitious vindicatio. If there were two bona fide possessors, the one who had received the item earlier would prevail if it came from the same non-owner, but if from different non-owners, the actual holder would prevail.

ACQUISITION OF OWNERSHIP

• Prescriptive acquisition – acquisition which came about by fulfilling a set of criteria e.g. usucapio.

• Derivative acquisition – ownership that came about by virtue of another person passing title to you.

• Under the ius gentium (applied to everyone including non-citizens), ownership could be acquired in the following ways:

Traditio

• Transfer of res nec mancipi.

• Requirements:

  • Intent to transfer ownerships and intent to receive ownership

  • The transferor was the owner or an authorised agent.

  • Justa causa – an underlying legal transaction.

  • Factual transfer – actually handing the item, or constructively delivering it.

    • Brevi manu was when the transferee was allowed to retain something he already had in his possession. The opposite of this was constitutum possessorium.

    • Longa manu is where the property is placed in the transferee’s sight and told to take it

    • Symbolic delivery e.g. a set of keys or sod of dirt.

• There was debate of mistaken/putative causa e.g. one party thought it was sale but the other a gift. Julian didn’t think it was necessarily fatal because there was still intent to transfer rights etc. Thomas suggests that because there was a remedy for unjust enrichment in the absence of justa causa, putative causa must have sufficed.

• Other mistakes:

  • Where one thing is promised but another delivered (e.g. 2 dogs of the same species) ownership will not pass because there is no intent for ownership to pass. If one dog was described but the other was the intended and delivered one, the traditio is valid.

  • If there was a mistake as to identity, the traditio was invalid if it was not the person who ownership was intended to pass to.

  • If the thing is delivered to the wrongly intended person, ownership does not pass. But if you deliver it to the intended person but believing he is someone else, the ownership still passes.

  • Where there is a mistake as to the thing, if there is intent to transfer titles of that thing as it appears, ownership will pass.

Occupatio

• Could be exercised with regard to res nullius. Ownership was gained simply by taking control of the object.

• Could also own things that had been previously abandoned. The Sabinians believed you lost ownership as soon as you abandoned something – this view prevailed.

• Borkowski suggests you become owner immediately. Thomas says you needed to usucape.

• You could seize enemy property (except land, which was the State’s).

• Wild animals could be owned so long as they were effectively under your control. Tame animals remained the owner’s unless they left intending not to return – then they became res nullius.

Specificatio

• The acquisition of ownership by creating a new thing that had not existed before out of materials belonging to another e.g. wine made from grapes.

• If any of the materials belonged the maker, he became owner. But there was a school dispute over when all of the materials belonged to another; Sabinians believed it belonged to the owner of the materials, but Proculians believed it was the maker’s.

• Justinian’s solution: if it was reducible to its material form it was the owner of the materials’. But if it was not reducible and a wholly new thing was made, it was the makers. Known as media sentententia.

• If the maker acted in good faith the owner of the materials had no remedy – if he somehow had possession of the thing he had the actio doli for the value of the thing. If acting in bad faith the owner had the actio furti and condictio furtiva.

Accessio

• One thing was mixed into another so that it became inseparable.

  • The thing is subordinated in such a manner that it loses its identity

  • The thing is inseparably incorporated.

• The following are not accessio:

  • Confusio – things mixed (e.g. wine in the same glass) but not separable. Common ownership results.

  • Commixtio – mixed but separable. No change in ownership of either thing. Can use the vindicatio.

  • Adjunctio – separable attachment of one object to another e.g. button on a coat. No change of ownership. Vindicatio.

• The following are accessio:

  • Immovables attaching to immovables:

    • Alluvio – silt deposited on riverbanks. The owner of the banks becomes the owner.

    • Avulsio – A’s land is carried by river and attaches to B’s land. Land was B’s as soon as trees rooted on his soil.

  • Movables attaching to immovables:

    • Anything planted on B’s land is B’s once it takes root. Before that it is A’s.

    • Anything built on B’s land by A is B’s. But A retains ownership of the materials and, if the house collapses, can vindicate the items.

    • B builds on his land with A’s materials. With bad faith B is liable for double the value. Good faith A can claim value when the building comes down.

    • A builds on B’s land with his own materials. If in bad faith it will be taken as a gift. If in good faith and A was possession, B could vindicate the property but would have to pay A. If no possession, B could simply take the property.

    • Justinian allowed the builder in good or bad faith to remove the building if it did not damage the land.

  • Movables attaching to movables:

    • Subordination is not done according to value but physical identity. A diamond would accede to a ring.

    • Specific cases:

      • Threat woven into a garment acceded to the garment.

      • Writing accedes to parchment.

      • Tablets accede to paintings. Whoever possessed could keep the item if he paid the value of the respective tablet/picture.

Acquisition of fruits

• Usually the owner of a thing was the owner of the fruit.

• Fructus natural (lambs, apples) v fructus civiles (rent etc.)

• The bona fide possessor and the emphyteuta owned fruits as soon as they fell, even though they didn’t own the fruit-bearing thing. If the bona fide possessor discovered it was not his property he had no right to fruits (but could still usucape in bad faith). Under Justinian such a person had to account for any fruits taken if the owner used the vindicatio.

• Usufructary and tenant (subject to owner’s consent) gained ownership of fruits by...