Property

res mobiles vs. res immobiles

• movables have usucaption period of 2 years

• immobiles have usucaption period of 1 year

res mancipi vs. res nec mancipi

• res mancipi —> slaves, beasts of burden, Italic Land, praedial servitudes

  • requires formal conveyance through mancipati/in iure cessio

• res nec mancipi —> conveyance satisfied throuh delivery

• distinction eroded by “bonitary ownership”

res corpoales vs. res incorporales

• distinction between physical and abstract things

possession

• said to exist as a “fact” and is determined by mental + physical elements

• must have exclusive right to hold —> no possession under contract or iure re aliena

  • exception for pledge-creditors + sequesters (possession required)

intention for possession

• must have intention to possess + actually physically control

• mere intention is sufficient to retain possession

bonitary owner

• possessor whose title is merely formally defective

• can use actio publiciana to fictitiously complete usucaption and vindicate against everyone

  • apply defence of “thing sold & delivered” in response to owner’s defence

bona fide possessor

• possessor whose title is substantially defective

• can use actio publiciana to fictitiously complete usucaption and vindicate against everyone but owner

original natural modes of acquisition

• occupatio

• alluvio

• accessio

• specificatio

• fruits

• thesaurus

occupatio

• acquiring ownership of something that has no owner —> ownership acquired through possession

• wild animals are considered in possession until you lose sight of it OR has a habit of returning

alluvio

• river creates new land incrementally —> generally belongs to owner of the riverbank

• creation of islands is split in the middle by both riparian owners or whose ever side is closer (insula nata)

• exposed riverbed becomes property of riverbank owner or split among closest owners (alveus derelictus)

accessio

• one thing accedes to another to create a new thing

• if new thing is the same —> joint ownership

• if not, owner of more valuable constituent takes ownership of the whole

specificatio

• two things united in a way that creates an entirely new thing

• Sabinians —> ownership belongs to owner of materials, or joint ownership in proportion to contribution

• Proculians —> ownership belongs to the maker

• Justinian’s media sententia —> ownership to the maker IF materials cannot be restored to original state OR he contributed any part

fruits

• tenants have right from landlord to gather fruits w/ consent (perceptio)

• usufructuaries have right to the fruits he collects

• bona fide possessor —> acquires all fruits collected in good faith (by anyone)

  • Justinian —> liable for to account for fruits to owner except for those consumed in good faith

thesaurus

• entitled to 100% of treasure found on your own land, 50/50 with actual owner of land if found by chance

  • 474 Constitution —> if not found by chance, landowner gets 100%

Thomas on specificatio

• Proculian and Sabinian positions on specificatio are not the result of philosophy (Aristotelianism vs. Stoicisim) —> reflect pragmatic choices

  • Proculian position —> default focus on form due to practicality

  • Sabinians —> hire contracts meant buyer who owned materials owned final product

Rodger on babies of a slave women and fruits

• jurists disagreed on whether the child of a slave women under a usufruct would belong to the usufructuary or owner

  • Publius Scaveola + Manus Manilius —> baby slave is a fruit

  • Marcus Brutus + Ulpian —> human cannot the be the fruit of another human being

• Birks —> reasoning is “overkill”, how do we justify baby slaves belonging to the owner?

  • Ulpian —> generally a good idea to buy a slave woman with the intention of birthing children

    • something that increases the estate naturally belongs to the estate

formal modes of conveyance

• mancipati

• in iure cessio

• traditio

mancipati

• formal mode of conveyance for corporeal things —> required 6 citizen witnesses and formal stipulation

in iure cessio

• conveying incorporeal things + res mancipi

• involved transfer of rights in a fictitious trial

• fell out of practice by Justinian’s time

traditio

• delivery based on a valid ground (iusta causa)

  • Classical Law —> common intention to transfer ownership + common mind for cause of benefit

  • Justinian Law —> common intention to transfer ownership was sufficient

• three types:

  • i] traditio longa manu

  • ii] traditio brevi manu

  • iii] constitutum possessorium

traditio longa manu

• long-handed delivery of movables

  • Justinian law removed necessity of visible transfer of object

  • i.e. Gaius —> “delivering” goods of a warehouse would have to take place at the warehouse

traditio brevi manu

• delivery where corpus comes before animus

  • i.e. lend you a book and sell after

constitutum possesorium

• delivery where no corpus occurs (i.e. sale of a book but retention on loan —> possession and ownership passes without physical transfer)

  • requires definite transaction that allows for possession/ownership to pass

Gordon on Traditio

• unclear if ownership via traditio automatically grants possession

  • Nicosia —> yes

  • Watson —> no (traditio to a pupil)

• master could acquire ownership via traditio without possession through a slave

Daube on traditio and occupatio

• ownership of abandoned property is construed as a form of traditio incertae personae —> reflects shift to formalized transactions

  • applied when someone would throw coins into a crowd

  • applied in Gaius’s analysis of debtor “abandoning” valuable objects to his friends —> treated as a traditio and thus a fraud on creditors

  • Proculians —> owner of abandoned property ceased to be owner when someone else took possession

usucapio (acquisitive prescription)

• possession of 2 years (immovables) or 1 year (movables) leads to ownership on 5 conditions:

1] uninterrupted possession for requisite period

2] acquired ex iusta causa —> transaction where possessor would be owner but for some defect

3] acquired in good faith

4] thing must be capable of being owned

5] thing must not have been stolen or take by force at any time

• Justinian introduced longissimi temporaes prescription —> good faith possessor becomes owner after 30 years

iure in re aliena

• rights in rem over another person’s property —> 5 types:

i] praedial servitudes

ii] personal servitudes

iii] emphyteusis

iv] superficies

v] securities

pradeial servitudes

• right in rem over an adjacent plot of land/building —> burden must “run” with neighbour + benefit must “run “ with your land

  • only capable of creating a negative duty, not a positive one (exception for building support, positive duty to repair)

• divided into rustic & urban servitude

  • rustic servitudes were res mancipi (right of way/water)

  • urban servitudes were res nec mancipi (right of light)

personal servitude

• vests in an individual and are personal + inalienable, 4 types:

i] usufruct

ii] usus —> right to use but no fruits

iii] habitatio —> usus for houses

iv] operae servorum —> usus for slaves

usufruct

• right to use and take fruit/profits of another’s property without alteration

• quasi-usufruct exists for consumable goods —> obligation to return equivalent quantity/quality

• fruits of a slave —> only applied to affairs connected with the usufruct + work done with usufruct’s property

emphyteusis

• grant of state/municipal land for long period of time in exchange for rent

• holder’s right was inheritable + alienable

  • perpetual action in rem on the land —> lost if he died intestate, didn’t pay rent or inflicted irremediable damage

• expanded to private landowners by combination with Greek practice of agor vectalis

superficies

• rights in rem for a building

  • inheritable, alienable + lasting for a long time

real security

• real security would grant a creditor rights in contract + property over debtor

• originally —> conveyance subject to covenant (fiducia) for reconveyance on payment of debt

pignus

• landlord could receive a bare ius in re aliena in a tenant’s property to secure rent

• actio serviana allowed landlord to reclaim possession if tenant didn’t pay the rent

hypotheca

• non-possessory charge over a security —> no right to property, but preferential right to have debt paid out of property

Buckland on servitudes

• a servitude-holder/usufructuary held a vindicatio to prevent interference with their right

  • some argue that vindicatio was only available against the owner

  • separate actio negativa ex diverso adversario was necessary to deal with 3rd parties (Biondi)

• actio negativa assumes plaintiff denies the defendant’s right —> no inconsistency for two rights in a praedium to exist

Buckland on usufructs

• unclear if usufruct is a pars dominii or separate legal right

  • Pampaloni —> usufruct is a pars dominii of a specific type since a usufruct that is combined into owner’s property still exists

  • Buckland —> merging of a usufruct and ownership will extinguish the usufruct