Acquisition of Ownership Flashcards
ius civile modes of acquisition
mancipatio
in iure cessio
usucapio
other modes of acquisition
traditio occupatio accessio thesauri inventio specificatio fruits
mancipatio formal ceremony required
5 witnesses, person holding the scales, transferor + transferee + thing to be transferred
usually a written record also
FOR RES MANCIPI
if the mancipatio ceremony was performed properly…
…ownership was passed regardless of whether or not the transferor was coerced etc
Mancipatio - mode of transferring ownership?
derivative mode
form of mancipatio - contract or conveyance? focus?
sale and transfer combined - no need for delivery, it was included in the ceremony
focus was on the transferee becoming owner
in iure cessio formal ceremony
needed a praetor
transferee asserts the thing is his, the transferor agrees, the praetor declares that the transferee is owner
cumbersome, little used
uses of in iure cessio
mainly used for res incorporales (i.e. inheritance and guardianship) - all res nec mancipi apart from rustic praedial servitudes
could be any res corporales as well including res mancipi
requirements of traditio
- physical handing over of the thing or equivalent
- by the owner
- who intends to part with ownership to a transferee who intends to receive ownership
- iusta causa
iusta causa (traditio)
underlying transaction justifying the transfer of ownership like a sale or a gift
uses of traditio
general mode of transfer for res nec mancipi
could also be used for res mancipi but the transferee would only become a bonitary owner and would still have to usucape
derivative mode of transfer - no man can give what he does not have
nemo dat quod non habet
traditio longa manu
property was pointed out or indicated
property had to be in sight and then the transferee would assume immediate control - useful for land etc
traditio brevi manu
when the transferor authorizes the transferee to become owner of something he already has physical control over
needs WORDS of authorization
essentially 2 contracts - 1st like borrowing does not transfer ownership or possession but the 2nd like gift or sale does (contract acts as conveyance?)
constitutum possessorium
transferor agrees to pass ownership and possession to the transferee but the transferor retains physical control of the thing
transferor holds res in detentio, in the interests of the transferee
symbolic delivery
document recording conveyance sufficed in the post classical period
putative causa definition
when both parties think there is causa but they are mistaken or have different causa in mind
Does putative causa suffice in the Classical period?
Causal view: putative causa was not iusta causa and would vitiate a transaction
Abstract view: putative causa suffices if the parties have appropriate intentions
Thomas says that causa is to establish the intentions of the parties in delivering or receiving the thing - by Justinian putative causa definitely sufficed
Error
error in corpore
error in persona
error in nomine
Error in corpore
selling A but deliver B by mistake - ownership does NOT pass because there is no intention to part with B
Error in persona
selling to A but deliver to B by mistake - ownership does not pass
unless A does not have a specific person in mind
Error in nomine
calling the res the wrong name by mistake but still intending to part with ownership with regards to that res -ownership does pass
requirements of usucapio
- res habilis
- titulus/iusta causa
- fides
- possessio
- tempus
Res habilis
property capable of being usucaped
NOT stolen goods, land acquired by force, land as part of dowry, land belonging to the emperor
Titulus/ iusta causa (usucapio)
to establish the bona fides of the transferee - putative causa did NOT suffice
Fides
belief that the thing was honestly held
supervening bad faith did not prevent usucapio unless it was gratuitous acquisition
Possessio
NOT detentio
needed to have animo et corpore protected by the praetor
had to be uninterrupted possession
Tempus
moveables = 1 year
immoveables = 2 years
Classical period : required uninterrupted possession, no adding together of time
heirs can complete usucapio
Justinian allowed adding together of time
usucapio definition
acquisition of ownership through continued possession
specificatio definition
acquisition of ownership through creating a new thing (nova species) from another’s materials
specificatio when the maker owned part of the materials
he became owner of the whole nova species
specificatio when the materials were owned wholly by another (school dispute)
Proculians said the thing belonged to maker
Sabinians said the thing belonged to the owner of materials
media sententia: if nova species could not be restored to former state then belongs to the maker, if nova species could be restored to former state then belongs to owner of materials
accessio definition
acquisition of ownership when a subordinate thing merges inseparably with a principal thing so the owner of the principal thing becomes the owner of the whole
in accessio if there was inseparability but no subordination
then there was confusio and both parties became co-owners
had actio communi dividendo to claim share
in accessio if the things were separable
then there was conmixtio and it could be separated out
textura
accessio with wool or thread acceding to the garment
scriptura
accessio with writing acceding to the parchment
pictura
accessio with tablet acceding to the painting
How do you determine the principal/subordinate thing in accessio?
normally physical identity rather than value determined which thing lost its identity
Does consent or good/bad faith matter in accessio?
NO - owner of the principal thing is still owner of the whole
But if owner of the principal was in bad faith he would be liable for furtum
Remedies for the owner of subordinate thing who merged the things thinking he was owner of the principal thing?
Owner of the principal thing would still be owner
Owner of subordinate thing had exceptio doli to resist vindicatio until compensated for the value of materials
Immoveables acceding to immoveables
avulsio
insula in flumine nata
alluvio
no compensation because changes arose from natural phenomena
moveables acceding to immoveables
superficies solo cedit - anything attached to land became part of the land i.e. plants and buildings
Builder in possession of building may have exceptio doli to resist vindicatio until compensated for materials
Fruits for different categories of people
owner - normally entitled to the fruits of the thing he owns
bona fide possessor/emphyteuta took ownership through separatio - so as soon as the apple fell from the tree
tenant/usufructuary took ownership through perceptio - physically taking the fruits themselves or via a representative
bona fide possessor and emphyteuta in fruits
supervening bad faith for BFP could mean that BFP could still usucape but not legally acquire the fruits
could both still acquire the fruits even if the property is not capable of being usucaped - i.e. it was stolen
Justinian said BFP had to account for all unconsumed fruits in vindicatio
occupatio definition
acquisition of ownership through taking possession of a res nullius or res derilictae
Wild animals in occupatio
ownership depends on possession and control - it is not just because the animal is on a person’s land
if the animal escaped it became res nullius again
exceptions of bees and deer who continue to be owned as long as they have animus revertendi
res nullius
is something which has never been owned like insula in mari nata
res derilictae
is something with has been abandoned
owner had to intend to abandon it and occupier had to intend to acquire it
Res mancipi/ res nec mancipi in occupatio?
Thomas says that you acquire ownership immediately of res nec mancipi through occupatio but still have to usucape a res mancipi
thesauri inventio definition
acquisition of ownership by finding treasure
when treasure is found by deliberate search…
…it belongs to the owner of the land
when treasure is found by the owner of the land..
..it belongs to him
when treasure is found by chance on another’s land..
….land owner owns half and the finder owns the other half.
land owner owned his half before treasure was even found.
longi temporis praescriptio definition
usucapio for provincial land and available to foreigners
10 years for parties living in the same province
20 years for parties living in a different province
longissimi temporis praescriptio
allowed acquisition of ownership based on sole possession - i.e. no need for iusta causa
30 years if the person was aware of situation and did nothing i.e. in bad faith
10/20 years if person was in good faith
Constantine said 40 years regardless makes possessor owner- clear up the confusion
