Controversies Flashcards
1
Q
Two schools of thought
A
Proculians - progressive Labeo
Sabinians - conservative Capito
2
Q
Actio Publiciana use
A
- Buckland argues that the actio Publiciana could only be used by those on the way to usucapio (therefore, not owners)
- De Vissher argued that originally the actio Publiciana was intended for bonitary owners only
- Wubbe argues the contrary - for bona fide possessors only.
3
Q
Bonitary ownership
A
- Gaius may have considered the bonitary owner a type of owner (G.2.41)
- Diosdi disagrees.
- Birks: owner in all but legal definition.
- Kaser: “alongside dominium, a newly developed type of ownership had appeared”.
4
Q
Animus in possession
A
- Savigny argues that animus was the intention to possess (but why does pledgee have possession?)
- Jhering argues that animus was the awareness of possession (why does a borrower not have possession?)
5
Q
Res derelictae
A
- Proculians: ownership would be lost once the res was found.
- Sabinians: ownership was lost upon the abandonment.
6
Q
Res mancipi and occupatio
A
- Borkowski: res mancipi could be acquired by usucapio.
- Thomas: res mancipi could not be acquired by usucapio.
7
Q
Movables to movables - accessory and principals
A
- the value test (which is the most valuable?)
- independence test (which could exist independently of the other thing?)
- the essence test (which gave the resulting mix its overall character?)
8
Q
Specification - materials belonging wholly to another
A
- Sabinians: belonged to the owner of the materials used
- Proculians: belonged to the creator (G.2.79) through occupatio (D.41.1.7.7)
- Middle view: based on the reducibility of the nova species adopted by Justinian (J.3.1.25)
9
Q
Usucapio causa
A
- Prevailing view: iusta causa necessary (D.41.3.27)
- Pomponius: putative causa sufficient (D.41.10.3)
10
Q
Traditio causa
A
- Ulpian: iusta causa necessary (D.12.1.18)
- Julian: putative causa sufficient (D.41.1.36)
11
Q
Usufruct - acquisition of fruits (animals)
A
- Pomponius: belonged to the usufructuary, but there was a duty to divest (D.7.1.6.9)
- Julian: ownership in suspense until allocation (D.7.1.70.1)
12
Q
Usufruct - improvement of property
A
- Ulpian: allows for great improvement.
- Neratius: more restrictive (e.g. no replastering of walls)
13
Q
Usufruct - pars dominii
A
- Yes (D.7.1.4)
- No (D.50.16.25)
14
Q
Stipulatio - law of contract(s)
A
- Watson: law of contract became law of contracts as stipulatio was sidelined by the emergence of other contracts.
- Pugsley: the initial scope of stipulatio was confined to the future conveyance of res mancipi.
15
Q
Stipulation for the lesser sum
A
- Ulpian: yes.
- Gaius: no.
