Property Notes

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...

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