introduction and Original Acquisition Flashcards
define common law
laws developed from disputes i.e. a new rule is announced in the course of resolving a dispute.
define civil law
rules are formulated in advance in the authoritative text
what is foundations of private law
the rules built up from Roman Law
in rem
law of property. We claim that some corporeal thing is ours or that we are entitled to something. Enforceable against the whole world.
in personam
law of obligations. Someone owes us something. Personal rights. Rights against individual persons.
real rights
rights in things which are enforceable against anyone
name four types of real rights
- ownership
- usufruct
- servitudes
- real security
which of the real rights can the others not exist without
ownership
define ownership
is a right in a thing and it can be enforced against the world. The relevant action is the vidicatio.
difference between possession and ownership
possession is in essence a question of fact and by contrast ownership is question of right
animo et corpore
have possession by the mind and by the physical act
in order to possess something you must……..
have effective power of control over it
what is the good faith possessor
someone who possesses a thing in the honest belief that he is the owner, even though he is not
what are the two types of acquisition
derivative acquisition of ownership and original acquisition of ownership
what is derivative acquisition
when the previous owner conveys or transfers ownership to another
what is original acquisition
when a person acquires ownership of a thing without deriving the title from any previous owner
define corpus
the requisite physical control over a thing required to be a possessor
animus
the requisite mental element for possession, which is the intention to hold and control the thing as an owner
define occupatio
acquisition of ownership of property that has no owner (res nullius) by taking possession of it
how do you retain ownership of a wild animal if you have lost possession of it?
it is possible for a wild animal to recover its natural state as an unowned thing. Retains natural state if person lost sight of animal or too difficult to pursue after losing possession
Note the rules regarding animus revertendi
animal must have habit of returning
can you take ownership of animal even if on other person’s land?
yes
accessio (3)
- a means of acquiring ownership of something that belongs to another by its incorporation. -Accession happens mechanically even if the parties do not want it
- . the accessory always accedes to the principal, and the owner of the principal becomes the owner of the accessory
If George builds a house on Sarah’s land who owns the house?
Sarah, land is always the principal
what is the test of functional subordination
If two things (X & Y) are attached and X serves a function in relation to the use of Y, then X will usually be the accessory and Y will usually be the principal;
what are the conditions for accession to take place
the attachment must be (within reason) inseparable for accession to take place. It depends on the extent to which there is a permanent physical attachment to the principal object.
mixture
property belonging to two different people is mingled separably. There is no loss of identity; the objects could be separated again No change in ownership, but consider the practical result. Vindicate what’s yours in proportion to what you put in
confusion/ fusion
property belonging to two different people is mingled inseparably. If parties agreed to the merger and made no further agreement on the point, then they will own the whole in common. But if the parties did not consent to the process then they will own the whole in proportion to the extent of their respective contributions
specificatio
a means of acquiring ownership of something that belongs to another by making a new thing from the property belonging partly or wholly to the other. Loss of identity.
in the case of specificatio if taken someone elses property and made something new, what did the romans say would happen?
if the thing could be reduced to its constituent parts, then those constituent arts would be returned to the original owners. But if the thing could not be reduced to its constituent parts, then the maker owns the new thing
difference in specificatio in Roman Law and Scots law
in roman law it did not matter if you took someone’s property in good or bad faith, but in scots law have to do it in good faith (not essential to know)
when do the rules of mixture or confusion apply
where the merger results in no change of identity
when do the rules of accessio apply
where the merger results in a loss of identity by one thing to another and the thing cannot be separated
when do the rules of specificatio apply
where the merger of two things results in both losing their identity and in the creation of a completley new thing, that cannot be reduced to its constituent parts
what are the fruits of a thing
products that come from the position are the property of the original owner
what happens when a good faith possessor cultivates land belonging to another and then harvests the fruits
the good faith possessor becomes owner of the fruits on separation/ Once the truth about ownership of the land becomes known, the law says that the good faith possessor does not have to account for any fruits he actually consumed. Account means give the value of possession in terms of money. Eating and sale count as consumption.
treasure trove
not in force in Scotland today. This is when valuable have been hidden for so long that their owner can no longer be discovered. In this case the treasure goes to crown, the finder has no right to it.
usucapio
that one can become an owner of a thing after possessing it for a period of time
what are the prescriptive periods for movable possession, land and servitude
movable- 1 year
land- 2 years
servitude- 10 years
what are the conditions of usucapio
- uninterrupted possession of the thing for the period lay down by law
- possession had to have been acquired in good faith
- possession had to have been acquired on the basis of iusta causa traditionis ( the thing must have been acquired in circumstances that would normally have resulted in the transfer of ownership
- the thing had to be capable of being owned
- only if the object had not been taken by force
mancipatio
the rule that some items were transferred through a certain ceremony
remedies. If someone is deprived of ownership of a thing as a result of original acquisition of the thing by another. A builds a house on B’s land. B owns the house. But does A have remedy?
yes but only if the two conditions were satisfied:
- A had retain possession of the house ]- A had to built the house in the honest belief that he was in fact the owner of the land
