Acquisition of property (tables)

Question 1

Occupatio - how it happened

Answer 1

Taking physical possession of the thing - natural mode of acquisition

Question 2

Occupatio - thing involved

Answer 2

res nullius, wild animals (ferae naturale), res derelictae (inc agri deserti - persons occupying and cultivating land abandoned by its owner could acquire ownership after 2 years without the owner seeking to assert his title - if a landowner, unable to pay his taxes, abandoned the land and did not return within 6 months, anyone who occupied the land and accepted the fiscal requirements acquired the property), res hostium (enemy property during times of war, or property of foreigners whose state didn’t have a treaty with Rome)

Question 3

occupatio - legal consequences and actions

Answer 3

There won’t be any other owner to pursue an action - if there was there would be a vindicatio

Question 4

occupatio - other details

Answer 4

School debate - Sabinians thought abandoned things at once became res nullius so were capable of occupatio whereas Proculians maintained that the original owner did not lose ownership until another took possession of it, so abandoned things were the object of a traditio incertae personae - the Sabinian view prevailed. Also did not apply to jetsam (things thrown overboard from ships in storms etc to ensure the boat survives)

Question 5

accessio (movable to movable) - what is it

Answer 5

Incorporation of the thing into something which already belonged to the acquirer in so subordinate a manner that it has lost its identity, and it should be inseparably so incorporated - without subordination and inseparability there would be no accessio - natural mode of acquisition

Question 6

accessio (movable to movable) - thing involved

Answer 6

Would no longer exist independently after the incorporation

Question 7

accessio (movable to movable) - legal consequences and actions

Answer 7

Not a valid acquisition if the thing retains it identity - best test is ‘whether the total thing would retain its identity as the same thing if the added element were removed’ - in all cases of genuine accessio, the owner of the principal element became owner of what was incorporated into it, whether it was bona fide or mala fide, whether it was with or without the consent of the owner of the element incorporated or whether the incorporation was effected by himself or by another, but these factors are, however, relevant to the potential compensation - if the owner of the subordinate thing agreed to the incorporation he was seen as gifting it unless it could be shown as an act of administration on the other’s behalf when he would have an actio negotiorum gestorum contraria - if he had done it thinking that the principal thing belonged to him, he could, if still in possession, get an exceptio doli in the other party’s vindicatio for the value of his materials but would otherwise be remediless - if the owner of the principal thing effected the incorporation in bad faith, he would be liable to the other party by the actio furti and condictio furtiva for theft - if in good faith, a corrupt text says he would be liable for an actio in factum for the value of the material incorporated though, in principle, he should have no liability as, the incorporated thing having ceased to exist through the fusion, he was a bona fide possessor who had ceased to possess and such a possessor normally incurred no liability - in either case, if the thing was in the possession of the former owner of the incorporated material, he could vindicate it, subject to his oppenent’s exceptio for the value of his material

Question 8

accessio (movable to movable) - other details

Answer 8

writing (scriptura) and painting (pictura) had special rules - writing acceded to the parchment so the owner of the parchment owned it, even if it was done in gold leaf - if someone painted a picture on a tablet, the painter became the owner of the whole thing, so the tablet acceded to the painting - Gaius didn’t like the distinction, Paul held that the picture should accede to the tablet, but Justinian held it - possible justification could be a different sense of relative value - writing’s value is in the words not the fact that it is written, paintings cannot exist without a base for the picture - for actions concerning the painting, if the picture was in possession of the owner of the tablet, the painter could vindicate, subject to an exceptio if he did not pay the value of the tablet; not said that he would be assumed to be guilty of theft - if the painter was in possession, the owner of the tablet could have an actio utilis for its recovery subject to paying the impensae picturae - if the painter had stolen the tablet, he would be liable to the remedies which lay for theft

Question 9

accessio (immovable to immovable) - thing involved

Answer 9

question of compensation or redress never arose, since they were all due to natural causes

Question 10

accessio (immovable to immovable) - other details

Answer 10

alluvio was the accretion of the boundaries of riparian owners caused by the silting of flowing rivers, and these additions became property of the relevant riparian owner - avulsio occurred when a torrent tore away part of one person’s land and carried it downstream until it came to rest against the land of another, and when the plants of the land which had been torn away took root in the land against which it rested it became property of the owner of the land it rested on - an island in a public river (insula in flumine publico nata) belonged to the riparian owners in shares according to an imaginary line drawn down the middle of the river - if a river dried up or changed its course, the old bed (alveus derelictus) became the property of the riparian owners on the same principles as applied to insula nata, and, if it subsequently changed course, the second bed, now abandoned, again became the property of its former owner or owners - if a river, diverging from its course, essentially enisled a part of the property of a riparian, he remained owner of his land so cut off

Question 11

accessio (movable to immovable) - what is it

Answer 11

Anything attached to land was then viewed as a part of the land (eg buildings in inaedificatio, plants once they had taken root in implantatio etc) so became the property of the landowner - natural mode of acquisition

Question 12

accessio (movable to immovable) - legal consequences and actions

Answer 12

2 principles cases discussed in the texts - 1 - a person who built on his own land with materials belonging to another - builder was owner of the house, but, if he had stolen materials, was liable for double their value by the actio de tigno inuincto to the owner who could further vindicate the materials when the house came down - if the materials were stolen but not by the builder, the owner would have actio furti against the theif and vindicate the materials when the house came down - if the builder had taken and used the materials in good faith, their owner could only claim the materials when the house came down - if the owner of the materials had gained possession of the house, although the builder could not vindicate the building, he would be met with an exceptio doli - 2 - a person who built with his own materials on the land of another - if the builder was in good faith, thinking the land was his or derelict, and was in possession, he would have an exceptio doli in the landowner’s vindicatio, if the landowner would not pay the expense he had occured - if he had built knowing the land belonged to another, he would have no redress, being regarded as having gifted the building, unless the circumstances were such that the case could be regarded as one of negotiorum gestio - some texts suggest that for the builder in good faith he had a ius tollendi, a right to remove his materials if he could do so without harming the site but this conflicts the provisions against the demolition of buildings - probable that, in classical law, this only applied to additions to premises eg ornamental doors or gates, but in Justinian’s law, if the builder could show he had no intention of benefitting the landowner and could effect the removal of his structure without damaging the land, he had a general ius tollendi - assumes that the builder has possession of the house - if the landowner possesses it, unless the case is one of negotiorum gestio, the builder had no redress but the recovery of his materials when the house came down

Question 13

accessio (movable to immovable) - other details

Answer 13

physical separability was reflected in the recognition that even though a house as a house (a corpus ex cohaerentibus) belonged to the landowner, the owner of the materials which constituted it retained his dominium of them but was not allowed to vindicate them as long as the building was still standing (Twelve Tables spoke of tignum, beams or rafters, but juristic interpretation extended the provision to cover all building materials)

Question 14

confusio (form of accessio) - what is it

Answer 14

The mixture of 2 inseparable objects (eg wine), whether done by agreement or not - natural mode of acquisition

Question 15

confusio (form of accessio) - legal consequences and actions

Answer 15

2 parties owned the mixture in common and could claim their respective shares by the actio communi dividundo, unless the quantity belonging to one was so small it could be fairly regarded as disappearing into the other in accessio

Question 16

commixtio (form of accessio) - what is it

Answer 16

Merging of 2 separable objects (eg flocks of sheep) - natural mode of acquisition

Question 17

commixtio (form of accessio) - legal consequences and actions

Answer 17

if it was done by agreement the result was common ownership, if not there was no change of ownership and each owner would have the actio ad exhibendum and vindicatio to recover his own property - if the individual objects were not easily identifiable (eg same sheep breed) each owner had a vindicatio to recover his appropriate portion of the resultant mass

Question 18

adiunctio (form of accessio) - what is it

Answer 18

Attachment of one object to another (eg a wheel to a chariot) - natural mode of acquisition

Question 19

adiunctio (form of accessio) - legal consequences and actions

Answer 19

if the objects belonged to different persons, no change of ownership resulted and either party could have the actio ad exhibendum and vindicatio to recover his property, however subordinate it might be to the object to which it was affixed

Question 20

specificatio - what is it

Answer 20

Creation of a new thing (novus species) from materials that belonged partly or wholly to another (eg wine from grapes) - nature of acquisition by specificatio is obscure - understandable - both Schools of jurists recognised that the thing was a new one which had not previously existed so ownership was a new ownership - natural mode of acquisition

Question 21

specificatio - legal consequences and actions

Answer 21

undisputed that, if part of the materials used belonged to the maker, he was owner of the resultant product - but, if they belonged wholly to another, there was a School dispute over the ownership; Sabinians thought the thing belonged to the owner of the materials whilst Proculians held that it belonged to the maker - it is probable that bona fides was not necessary for acquisition by specificatio any more than by accessio - Gaius says that, if the materials were stolen, their owner would have an actio furti and condictio furtiva but not a vindicatio - Justinian also views the materials in this case as being stolen by the maker - generally same rules for redress as accessio

Question 22

specificatio - other details

Answer 22

has been suggested that the doctrine had a philosophical doctrine - Sabinians, following Stoic doctrine, regarded its substance and material (ousia) of which a thing was made as giving it its identity whilst the Proculians looked at its shape and form (eitos) - jurists would have been philosophically educated but questionable that it would affect juridical reasoning that much - already in classical law a middle view (media sententia), adopted by Justinian, based on the irreducibility or not the new thing to its former materials - if the nova species could be returned to its former state, ownership was with the owner of the materials, if not then the maker was the owner of thing

Question 23

acquisition of fruits - what is it

Answer 23

4 cases in which fruits were acquired by someone other than the owner of the fruit-producing things - bona fide possessor and emphyteuta acquired ownership of fruits by their mere separation (fructum separatio) from the parent res - the tenant of agricultural land (colonus) and the usufructuary acquired fruits by actually taking possession of them (fructuum perceptio), either personally or through a representative, eg a slave or family member - natural mode of acquisition

Question 24

acquisition of fruits - legal consequences and actions

Answer 24

generally, the owner of something was the owner of the fruits which it produced, except when usufructaries acquire the young of animals at birth (quasi-exception according to G) - if separation was effected by a third person, eg a thief raiding an orchard, a bona fide possessor would have against him the actio furti and condictio furtiva or vindicatio - a tenant or usufructuary would only have the action for theft and would have to rely on the dominus to bring the proprietary action - distinction could be ascribed to the fact that the bona fide possessor and the emphyteuta had possessio, in the legal sense, of the parent thing, whilst the colonus and fructuary did not - also the point that the 2 former looked like owners of the thing (bona fide possessor thought he was the owner) while the fructuary and colonus were aware they were not

Question 25

thesauri inventio - what is it

Answer 25

Finding of treasure - natural mode of acquisition

Question 26

thesauri inventio - thing involved

Answer 26

Paul said treasure is a deposit of money, remembrance of which has been lost, so that it now has no owner - generally applied to jewels, bullion and valuables secreted in land - open to the idea that someone is entitled to its possession by succession, but the point is, since he cannot be traced, the treasure is treated as ownerless

Question 27

thesauri inventio - legal consequences and actions

Answer 27

2nd century B.C Brutus and Manilius appear to have regarded it as an accession to the land in which it was buried so it belonged to the landowner - later Republican regime of treasure trove is uncertain but in the early imperial period there appeared the rule that treasure, unlike other ownerless property (bona vacantia) went to the imperial treasury, the fisc - Hadrian first legislated generally on the matter and the principles he laid down were adopted by Justinian though there was considerable intervening legislation - if a man found treasure on his own land, he kept it all - if he found it by chance on someone else’s land, he became owner of half and the landowner acquired the other half, this latter vesting at once although the landowner was unaware of the discovery - if he found the treasure on another’s land by deliberate search or by use of magical arts, the treasure vested wholly in the landowner - if the land was public land, the landowner’s share vested in the fisc

Question 28

thesauri inventio - other details

Answer 28

underlying bases of acquisition would appear to be occupato so far as concerned the finder’s share, the treasure being treated like a res nullius - though the Institutes say the landowner’s share vested in him on grounds of natural equity, it is possible to speculate that a relic of the old Republican idea of accessio of the treasure to the land may be found in Hadrian’s provision

Question 29

Mancipatio - the mode par excellence of transferring dominium iure civili - mode of formal conveyance - what is it

Answer 29

in the presence of at least 5 witnesses and a person holding scales (libripens), there were the transferor, the transferee and the thing to be transferred - taking hold of the thing (eg a slave), the transferee said a certain phrase (nuncipatio), then struck the scales with a piece of copper which he then handed to the transferor - derivative mode of acquisition

Question 30

mancipatio - thing involved

Answer 30

Res mancipi (originally for movables) - slaves, animals of draft and burden (horses, oxen, mules donkeys)

Question 31

mancipatio - legal consequences and actions

Answer 31

immediate transfer of dominium, so could be linked to vindicatio, actio publiciana

Question 32

mancipatio - other details

Answer 32

long obsolete before Justinian formally abolished it - already clearly regulated under the Twelve Tables, indicating it existed before their enactment (from before coined money)- seems to have still been common in classical law - only available to those in commercio and in respect of a roman thing

Question 33

Cessio in iure (civil mode of transfer and acquisition) - what is it

Answer 33

form described in Gaius - parties went, with the thing, before the Praetor and the transferee, holding the thing, made the assertion I say that this thing is mine by Quiritary title; when asked by the Praetor whether he made a claim to the thing, the transferer remained silent then the praetor formally attributed (addicere) the thing to the transferee - in existence at the time of the Twelve Tables - derivative mode of acquisition

Question 34

cessio in iure - thing involved

Answer 34

could be used to transfer any res corporalis, res nec mancipi, to create servitudes, both praedial and personal, to transfer universitates (like inheritance or guardianship - could thus be used for res incorporales)

Question 35

cessio in iure - legal consequences and actions

Answer 35

immediate transfer of dominium

Question 36

cessio in iure - other details

Answer 36

views have been expressed that it emerged after mancipatio as a formal transfer for res nec mancipi - only available to those in commercio and in respect of a roman thing

Question 37

Traditio (one derivative mode of acquisition jure naturali) - what is it

Answer 37

actual delivery of the res with the intention, on the transferor’s part to transfer all his rights in the thing and acceptance of the thing by the transferee with intention to receive those rights

Question 38

traditio - thing involved

Answer 38

res nec mancipi, things of peregrine ownership, provincial land

Question 39

traditio - legal consequences and actions

Answer 39

immediate transfer of dominium

Question 40

traditio - other details

Answer 40

error in corporae, error in persona and error in dominio invalidated a traditio by making the traditio subject to a condition which was not satisfied - causa in itself was insufficient for traditio

Question 41

traditio brevi manu - what is it

Answer 41

when a person was authorised to retain as his own something belonging to the transferee which he already had under his control (borrower being told to keep something) - derivative mode of acquisition

Question 42

traditio brevi manu - thing involved and legal consequences and actions

Answer 42

same as traditio

Question 43

traditio brevi manu - other details

Answer 43

practical reason for existing: would be absurd if the holder had to return the thing to its then owner then accept redelivery of that thing on changed terms - constitutum possessorium was the converse of traditio brevi manu - transferor remained in physical control of the thing but the nature of that control was changed; from being owner and possessor, the transferor, without any physical displacement of the thing, became a simple detainer of the thing eg if a dog were sold to be taken by the purchaser at an agreed date, the vendor in the interim retaining the anima

Question 44

traditio symbolica - what is it

Answer 44

a document would be drafted recording a conveyance to the transferee subject to an ephemeral usufruct reserved to the transferor, in effect a record of a constitutum possessorium, operating really like a traditio without physical transfer - derivative mode of transfer

Question 45

traditio symbolica - thing involved and legal consequences and actions

Answer 45

same as traditio

Question 46

traditio symbolica - other details

Answer 46

in classical law it is clear there was no such concept, as a traditio meant the actual transfer of effective control - became common in the post-classical period, esp in respect of land, to prepare documents purporting to record a transfer - legislation requiring that there should be a formal perambulation of the boundaries of the land and a physical transfer (corporalis traditio) shows that the document was regarded as a means of transfer - for things other than land, it appears that the document of transfer sufficed for traditio in the later empire

Question 47

usucapio - what is it

Answer 47

Possession of the thing for the appropriate amount of time: in TT, 2 years for land and a year for anything else - in J's law, 3 years for movables, to which he confined usucapio) - prescriptive mode of acquisition

Question 48

usucapio - thing involved

Answer 48

res had to be habilis and in commercio, could not usucape the following: res furtivae (stolen things), res mancipi of a woman in the tutela of her nearest agnate and the limes (5 foot strip between adjoining pieces of land) - in last century B.C the usucapio of land taken by force was prohibited by the lex Plautia de vi and that of land comprised in a dowry by lex Julia of Augustus - could be no usucapio of property belonging to the emperor of the fisc, or, in later law, land dedicated to the church or charitable purposes

Question 49

usucapio - legal consequences and actions

Answer 49

acquisition of dominium of a thing by possession of it for a set time period

Question 50

usucapio - other details

Answer 50

wholly private mode of acquisition - if a usucaper lost possession of the thing and subsequently regained it, he had to recommence usucapio - if a usucaper transferred the thing to another, the latter would have to possess it for the full time period, so if there was a succession of such transfers, the original owner might still be the main dominus even though he had been out of possession for some years - exception in classical law is if a usucaper died, his heir could complete usucapio by holding for the remainder of the appropriate time period - Severus and Caracella allowed adding together of time held if the thing was sold whilst in usucapio - had to be bona fides possession, and iusta causa

Question 51

longi temporis praescripto - what is it

Answer 51

Like usucapio (10 years for persons present, 20 for persons absent) - prescriptive mode of acquisition

Question 52

longi temporis praescripto - thing involved

Answer 52

Initially applied to peregrine movables (not in commercio)

Question 53

longi temporis praescripto - legal consequences and actions

Answer 53

did not give the possessor ownership but extinguished the old owner's right to claim it, developed into ownership then the constitutio Antonina (AD 212) gave peregrines citizenship rights, making transfer of dominium part of it - accessio temporum was always allowed as the original basis of longi temporis praescriptio was that the person primarily entitled had been so long inactive that the was no longer permitted to assert his claim

Question 54

longi temporis praescripto - other details

Answer 54

after constitutio A, possession concerned should have had a bonum initium, a valid beginning, which would appear to be a compendious expression for the requirements of bona fides and iusta causa in usucapio - J effectively fused it with usucapio