The law of things - Ownership and Possession

Define ownership and possession.

• Possessor physically holds or controls the property

• Owner, the person who has dominium the ultimate entitlement to the property

• Historians describe is as a set of rights left when everyone else's rights have been taken away in terms of a piece of property.

Did Roman law define these concepts?

• Avoided creating definitions but described the concepts and differentiated between the possessor and owner

What is a vindication, who could use it and what was it used for?

• A praetorian remedy for a dominus/quiritary owner to get back the rights and possession over his property

 

What is the significance of calling rei vindicatio an actio in rem?

• An actio in rem is an action against a thing

• A property action emphasising the link between the owner and property

 

What exactly did you need to prove in order to succeed with a rei vindicatio action?

Had to prove dominium under 3 conditions:

• That the land was capable of being owned

• That it was acquired in an appropriate mode (cessio/mancipatio)

• That the owner has commercium whether by being a citizen or having it specially granted.

What would the iudex award if you were successful in a vindicatio?

• Restore possession of the property vindicated/monetary value of the property

Why did the Praetor grant interdicts to protect a possessor even against someone claiming to be the Quiritary owner?

•  Possession was a form of presumptive ownership- possessor = presumed dominus

•  The possessor was in a strong position against anyone who wished to contest the ownership of the property

Under what circumstances could a possessor in bad faith succeed in interdictal proceedings? 

• The necessity for good faith possession wasn’t required until later republic, even then bona fide was presumed until proven contrary

• Ulpian tells us that good faith is lost when the possessor becomes aware of a contrary right.

 

What was the main purpose of the interdicts uti possidetis and utrubi?

For a possessor to protect and retain his possession of:

• land - uti possidetis (D.43.17., C.8.6.)

• movables - utrubi (D.43.31.)

• He’d succeed providing that his possession had not been acquired by force, stealth.

 

What exactly was the fiction in the actio publiciana? Who could use it?

• Praetorian edict which protected the rights to property of a good faith possessor throughout the process of usucapio against everyone but the owner

• Similar to rei vindication (standard action for claim of ownership) but included the fiction that the possessor had had the property for the required time of usucapion already.

What is meant by saying that whereas “bonitary” owners are in a virtually unassailable position by classical times, bona fide possessors only have a relative chance of retaining or regaining the property in question?

• If the transferee was a bonitary owner, he was protected from claims by any third party, including the dominus

•   Bonitary ownership regarded as equivalent to dominium, could ultimately lead to it.

• Bona fide had limited protection against 3^rd parties with the exception of dominus and bonitary owner.

Was it possible to transfer possession in order to give real security to the lender?

• Yes, a pledge required possession of the property to be given to the creditor

• But in a hypothec, the debtor is allowed to retain possession

Did real security follow the same rules for both movables and immovables?

•   A pledge could be made over land as well as movable property.

• A hypothec was similar, designed mainly for agricultural tenancies it allowed land to be used as a real security but without the owner losing possession.