Bonitary ownership

Question 1

Bonitary owner basics

Answer 1

• Res mancipi acquired outside of in iure cessio or mancipatio
• Turn to dominium via. usucapio

Question 2

Ius honorarium protection of bonitary owner

Answer 2

END OF REPUBLIC

BO as D: - Exceptio rei venditae et traditae to Dominium vindicatio
- Not dominus then may rely on possessory interdicts

BO as claimant:

• 67 BC actio Publicana have BO protection against D. & 3rd party
• AP available to BO BFP & othe rposessors undergoing usucapio
• All needed Iusta causa and be b.f.

Question 3

Bona fide Possession basics

Answer 3

• Good faith acquisition from someone believed capable of transferring ownership but not in fact capable

Question 4

Dispute concerning scope of Actio Publiciana

Answer 4

De Vissher: AP created for BO and later adapted to BFP

Wubbe: Primarily for BFP to get round issue of proof needed for vindicatio and came to be applicable by BO

Question 5

Wider consequences of ACtio Publiciana on the law of property

Answer 5

R.M transferred via traditio in substance the owner, significantly diminishing formal nature of conveyance

Question 6

Differing views on the division of dominium

Answer 6

1. Gaius: Ownership @ first single but then divided so that there could be civil law owner (dominus) and one holding among his goods
2. Birks: Dominium indivisible: Distinction ceated between ius civile (Dominus) and ius honorarium (Creating other forms of ownership)
3. Actio Publiciana seemed to give way to 3 fold div.
   - Owner = Vindicatio against all
   - BO = AP against all including owner
   - BFP = AP against all but owner

Question 7

Possession

Answer 7

• O = Factual sov. & P = Legal Sov.

- protected via possessory interdicts

Question 8

Acquisition of possession

Answer 8

• Corpus: Effective physical control
• Animus: Disputed
  A) SAVIGNY: Intention to hold it as one’s own
  B) JHERING: Consciousness of being in control of it

Question 9

Savigny versus Jhering: A war of scholars

Answer 9

• SAVIGNY: Argued both Animus and corpus essential to possession

Explains why derivative holders ie usufruct do not hold possession but not why a pledgee in pignus does have possession
Says there is an intentin to hold the property as derivative owner

• JHERING: Only Corpus essential

Explains latter but not former of SAVIGNY
Says due to no need to protect possessory interest

Question 10

Possessory interdicts: Outline

Answer 10

• Classified according to purpose

- Thought to be more efficient than vindicatio

Question 11

Possessory interdicts: Classifications

Answer 11

Acquiring possession
Retaining possession
Recovering possession

• AD 389: Decree issued stating property forcibly seized by an owner would lose onwership and possession, reducing need for PI

Question 12

Kaser view on ownership

Answer 12

Many had rights in an object but owner just had the best right to it

Question 13

Nicholas resolving Birks and Kaser dispute in dominium

Answer 13

Person cannot have a right to possession in Roman law and Romans believed in indivisibility of ownership but only by turning blind eye to BO & BFP

Question 14

Three parts to possessory interdict

Answer 14

• Remedy lies only against dispossessor
• Title of each irrelevant
• Possession must not have been obtained by force, secret or by grant at will