Ownership

Question 1

Essentials of ownership/dominium

Answer 1

1. Commercium - only Roman citizens could have dominium
2. Property capable of being privately owned
3. Appropriate mode of acquisition

Question 2

Ownership is a right…

Answer 2

..in rem

Question 3

Provincial land is outside scope of private ownership so….

Answer 3

….private citizens could be tenants, had the right to have, possess and enjoy

Question 4

The right to have possess and enjoy

Answer 4

habere frui possidere licere

Question 5

Remedy for the owner

Answer 5

VINDICATIO - regaining possession from whoever had physical control of the res
Had exceptio iusti dominii if someone used the actio publiciana against him unless it was a bonitary owner

Question 6

Bonitary owner

Answer 6

When res mancipi was transferred from a method other than ius civil modes (mancipatio or in iure cessio)
Still had to usucape to become the full owner

Question 7

Protection for the bonitary owner

Answer 7

But had Praetorian protection by late Republic:
exceptio rei venditae et traditae if the owner attempted to vindicate
Actio publiciana to regain possession against anyone including owner

Question 8

Bona fide possessor

Answer 8

Acquired res in good faith thinking the transferor was owner but in fact transferor was a non-owner
Had to usucape to become owner
Could still usucape in the event of supervening bad faith

Question 9

Protection for the bona fide possessor

Answer 9

Very limited

Could use actio publiciana against anyone except the dominus or bonitary owner

Question 10

Peregrine ownership

Answer 10

For foreigners who didn’t satisfy commercium requirement
Only applied to ius gentium modes of acquisition
Lost importance when constitutio Antoniniana which granted citizenship to all free inhabitants of the Empire

Question 11

Possession

Answer 11

Factual, more than legal, relationship between a person and a thing

Question 12

Requirements of possession

Answer 12

Animo et corpore
Need both to gain possession
Need to lose both to lose possession

Question 13

Animo in possession - two views

Answer 13

Dominant view - SAVIGNY possessor must think of themselves as owner
JHERING possessor must have the same physical control as the owner

Question 14

Corpore

Answer 14

Physical control

Question 15

Legal protections/possessory interdicts

Answer 15

Possessory interdicts granted by praetor - orders instructing person to do or refrain from doing something
Determined who was possessor and therefore who was plaintiff and who was defendant in legal dispute over ownership
Part of ius honorarium
Possession had to be held for greater part of past year and NEC CLAM NEC VI NEC PRECARIO

Question 16

What were the different possessory interdicts

Answer 16

Utrubi - moveables
Uti posseditis - immoveables
Unde vi and unde vi armata - recover possession
ALL were to restore possession to possessor in the event of dispossession

Question 17

nec clam nec vi nec precario

Answer 17

not secretly, not by force and not with permission

Question 18

Peculium

Answer 18

private property

Owned by the paterfamilias but it was for the use and enjoyment of the slave or child

Question 19

Peculium castrense

Answer 19

Augustus allowed sons in potestas legal rights to property acquired through military service.
Could dispose of property at will

Question 20

Peculium adventitium

Answer 20

Paterfamilias was entitled to income from the thing but not capital
i.e. gifts or legacies received by children on mother’s death

Question 21

Peculium quasi castrense

Answer 21

same as castrense except it was any State service

by Justinian could be disposed of at will