Law of property Flashcards
What are things?
They are economic assets. Can include physical objects or abstract things such as debt
They are the second division in the classification of law. They are further divided into property, obligations and succession- rather strange considering that succession is not an asset
‘creation, transfer and enjoyment of economic assets’
What is the difference between property and obligations?
Property is the realm of rights in rem, while obligations deal with rights in personam (idea of being owed something).
There must also be a defendant when bringing an actio in rem- they are available against all persons generally while actions in personam lay only against specific persons
What is the purpose of actions in rem?
Their aim is not to demand restitution or a specific performance. Instead in an action in rem demands that the defendant pay the value of the thing and if it is not returned the plaintiff can make his own evaluation of the value of the thing.
Can you proceed both in rem and in personam?
Certain situations such as you buy a book from A and A fails to deliver it. You can proceed with an action in rem or an action personam- it should not matter unless the defendant is insolvent, in which case an action in rem would be preferable
Does an act which creates a right in personam also create a right in rem?
No, a contract for example (which creates a right in personam) does not create a right in rem- for this conveyance is necessary. For example, if A buys the book he does not have ownership of it until it is delivered.
Why is there a separation between contract and conveyance?
Because it was believed that rights in rem should not be created in secrecy (as they affect everyone) so there needed to be a conveyance. However, there is no objection to the secret creation of rights in personam.
What is mancipatio?
A formal mode of transfer. It took place in the presence of 5 witnesses and there was a striking of copper on scales
What is in iure cessio?
Took place in a open court in the presence of a praetor- formal words were said.
Why was the distinction between contract and conveyance later obliterated?
A desire to conduct affairs in private
Traditio- informal mode of conveyance
What was the different classification of res?
Res mobiles and res immobiles
Res extra patrimoniun and res in patrimonio
Res Mancipi and res nec mancipi
Res corporales and Res incorporales
Fungibles and non-fungibles- tended to be part of contracts of loan such as mutuum. These were things that could be consumed by use and those which could not
What is the distinction between res mobiles and res immobiles?
Moveable things and immovable things (land and buildings)
There was a different period of usucapio. For moveables it was 1 year and 2 years for immovables
What is the distinction between res mancipi and res nec Mancipi?
Res Mancipi required formal transfer (slaves, beasts of burden, rustic praedial servitudes, italic land). Conveyance through mancipatio or in iure cessio- mere delivery was insufficient to pass ownership- needed to be a formal and public conveyance
Res nec mancipi is everything that is not res Mancipi- conveyed by traditio
This distinction was formally abolished by Justinian
What is the distinction between res corporates and res incorporales?
Res corporales are physical things (a house) while abstract things such as debts are res incorporales (praedial servitudes)
Important to note that incorporeal things cannot be possessed as they denote a handling. They cannot be usucaped or transferred by traditio.
“Those which are not tangible, such are those consisting in a right, as an inheritance, a usufruct, use, or obligations in any way contracted.” (Gaius and Justinian)
What is the disctinction between res extra patromonium and res in patrimonio?
Human things and divine things which can and cannot be owned
Res extra patrimonium- sacred things, common things (common to all men) and public things that cannot be owned
What is the distinction between ownership and possession?
Usucapio deals with the acquisition of ownership through possession.
The basic distinction is factually having a thing and being entitled to it. For example, a thief will have possession of the thing he has stolen
How is possession protected?
Possessions are protected by possessory interdicts.
They are remedies to prevent others from interfering with possession and recovering possession. Often times if A is evicted by B it will be favourable to proceed with a possessory interdict rather than a vindicatio as it places the burden of proving ownership on B
Possession must not have been obtained forcefully, secretly or by grant at will
What is the definition of possession?
The holding of a thing in the manner of an owner
Possession as a fact- there must be some material manifestation of it
Who can possess?
In Roman law it was not simply that any man who has the thing has possession of it.
Individuals who hold the thing because of a contract with the owner cannot possess. Therefore, the usufructuary, borrower and depositee cannot possess. The owner holds possession through them. Therefore, if the thing is stolen by a third party the owner will have to bring the possessory interdict or vindicatio.
The Roman tenant is a detentor and his landlord is the possessor- despite the lesee’s physical occupation of the land he legally has no relation to it.
What is an usufructuary?
Temporary right to enjoy and derive profits from another’s property
What amount of physical control is necessary for possession?
Acquisition of possession is both mental and physical. Paul suggests that one acquires possession through an act of the mind and an act of the body.
The intention must be one’s own but the act of the body may be supplied by another.
Necessary to note that intention requires knowledge e.g. I see you put the book in my drawer- otherwise the necessary intention is lacking.
How can possession be retained?
Possession can simply be retained animo solo. Wha tis retained animo solo can only be lost animo. Therefore you still have possession even if you leave your house and squatters take over. You shall not lose possession until you know of the presence of the squatters and fail to evict them.
What are the modes of acquisition of corporeal things?>
mancipatio
In iure cesssio
Traditio
What are the civil modes of acquisition and the natural modes of acquisition?
Mancipatio and in iure cessio are particular to Roman law and are thus civil modes of acquisition. Traditio is a natural form of acquisition
What are derivative and original modes of acquisition?
Derivative mode- one acquires from the previous owner so must simply prove the title of the predecessor (mancipatio, in iure cessio (confined to incorporeal things), traditio)
Original mode- occupatio of a wild animal - taking ownership of something that is not dependent on any previous title
Why did mancipatio and in iure cessio disappear?
The abolition of the distinction between res mancipi and res nec mancipi
What was traditio?
It was the only delivery to survive in Justinian’s law- mere delivery
What were the requirements of traditio?
Common mind- both need to know that it is a loan and not a gift
Traditio- requires the acquisition of possession animo et corpore, distinguishing contract from conveyance
What were the different types of traditio?
Traditio longa manu- physical transfer is impossible in the case of immovables. Thus, it is sufficient if the thing is pointed out- you cannot get possession until you are in sight of them. This is similar to the emergence of a ‘symbolic traditio’- case of warehouse- during classical law it was not sufficient that I simply hand over the keys- it had to be done by the warehouse. However, under Justinian the keys could be handed everywhere.
Traditio brevi manu- acquiring ownership of something already in your possession
Constitutum possesiorum
What is constitutum possesiorum?
It is when I sell you a book but we agree that I shall retain it on a loan. Here, ownership and possession passes despite the lack of conveyance as there is a definite transaction with the loan. Led to the emergence of consent as the foundation of conveyance. Mere agreement was sufficient.
What are important considerations when bringing actions?
Periods of limitation- the time period in which the action is enforceable. If you fail to bring it within a certain time you are debarred from bringing it thereafter
Acquisitive prescription- creates a new right as with usucapio
Extinctive prescription- extinguishes the right without giving it to someone else
What is the purpose of usucapio?
Serves to either remedy a defect in the title of the person or the way in which it was conveyed (e.g. traditio of a res mancipi)
What are the requirements of usucapio?
The thing must not have been stolen
Uninterrupted possession for the requisite period
The individual must be capable of usucapio i.e. a Roman citizen
Acquired bona fide and iusta causa (transaction by which the possessor would have become owner) (honest belief that he was not infringing the rights of another)
The thing must be capable of being owned
Supervening bad faith was no bar to usucapio
Define bonitary ownership and bona fide possessor?
The bonitary owner’s title is only formally defective because it had been conveyed incorrectly.
Bona fide possessor’s title was substantially defective as it was derived from a non-owner
How were the bonitary owner and bona fide possessor protected?
Only with interdicts that lied against the immediate dispossessor.
How did the praetor intervene to change this?
The praetor established the principle that the bonitary owner was to be protected against everyone (even the owner). If the dominus brought a vindicatio then the defendant was allowed to insert a defence to acquit him if the thing was sold and delivered by the plaintiff.
In contrast, the bona fide possessor was to be protected against everyone except the owner. If (while on the way to usucapio) the owner brings the vindicatio (only action available) the dominus must be allowed to succeed against the bona fide possessor.
The bona fide possessor had no better title than being the mere possessor.
Where does the action derive from?
The actio publiciana- formula asserts that if the plaintiff had been in possession of the thing for a year he would have been the owner- the plaintiff must prove other elements of the usucapio. He must be able to succeed against the dominus
What was the significance of the actio publiciana?
It led to the abolition of the distinction between mancipatio and in iure cessio. The actio publiciana made bonitary ownership only technically different from dominium. Traditio was sufficient to transfer ownership.
What were Justinian’s reforms with regards to usucapio?
Long term prescription- originally only a period of limitation. In Justinian’s period it became like usucapio but the period was much longer. 10 years if the parties lived in the same district and 20 if they did not.
Long term prescription was used for immovables such as land while usucapio was used for movables
He also created a new form of acquisitive prescription. Thus, even if one had not acquired the thing in iusta cusa, provided that they had acquired bona fide then they would become owner after 30 years. (longissimi termis praescriptio)
Justinian also ruled that the bona fide possessor holding in bad faith would become owner in 20 years if the dominus failed to bring an action to assert his claim. 30 if he was unaware
What is the meaning of the inviolability of ownership?
A man cannot transfer a better title than he has
Inviolability of ownership means that an individual cannot lose ownership without their consent. It allows no other inroads than usucapio and long term prescription
What are the original modes of acquisition of corporeal things?
Occupatio Increments by rivers Treasure trove Specificatio Accessio Separatio and harvesting Commixtio
What is occupatio?
Acquisition of ownership of a thing that previously had no owner (res nullius). One case of this is wild animals- if you catch a wild animal that later escapes you shall lose ownership of it in that moment. However, if a tame goose escapes then I am still the owner as if it was a res mobiles
Ownership of wild animals was lost when possession was lost- relaxed in the case of animals which have the habit of returning- e.g. a pigeon which has the intention to return.
What is increment by rivers?- when a river changes its course
Alluvio and avulsio
Insula nata
Alveus derelictus
What is alluvio?
Land might increase by accretions of soil. These additions are not res nullius and belong to the riparian owner (owns the land on which the water sits)
What is avulsio?
A piece of land that floats bodily down the river there is no change of ownership until it becomes firmly rooted/ permanently attached to new land- Justinian
What is the principle of insula nata?
If the movement of the river throws up a new island. If the island is wholly on one side of the river then the riparian owner of that side owns the island. If there are two riparian owners then it should be divided equally. If it is a middle it should be equally separated using a horizontal line drawn in the middle
If the river divides enclosing a piece of land as an island the ownership remains unchanged.
What is alveus derelictus?
If the river changes course then the bed it abandons becomes the property of the riparian owners while the new bed becomes public
What is a merger?
Occurs when one thing belonging to one person is united with another. Ownership of the whole belongs to one of us or jointly- if it is the former then questions of compensation arise
How is ownership determined when there is a merger of identity?
The question is one of identity- if the identity of one thing (the accessory) is merged and lost in the identity of the other (the principle) then the owner of the principal is the owner of the whole e.g. case of cup and handle. The owner of the cup is the owner the whole as the handle is the accessory- principle of accessio.
What happens when the identity of the components are the same as the identity of the whole?
Then ownership is joint e..g my gold ingot and your gold ingot are melted together to produce a lager ingot
