Property 1 - modes of acquisition Flashcards
Original modes of acquisition
when someone becomes the owner of a previously ownerless thing
occupatio - taking control of an ownerless thing
accessio- assimilating one thing into another
specificatio - creating a new thing
Fruits - acquisition by separation from parent res
Treasure Trove - acquisition by recovering buried property
Derivative Modes of acquisition
where someone derives their ownership from someone else
Mancipatio - formal mode of transfer of res mancipi
Cessio in iure - second mode of formal transfer of res mancipi
Traditio - formal transfer of res nec mancipi
Prescriptive modes of acquisition
where someone becomes the owner of a thing through the passing of time
Usucapio - acquisitive mode based on possession over time
Praescriptio longi temporis – extinctive; applies to non-Italic land
Praescriptio longissimi temporis – Justinianic only
Adiudicatio – almost always forgotten, acquisition by the declaration of a judge
Vindicatio
action that can be used to claim property
the owner of the property can sue the possessor to reclaim the property
If one wins a vindication - this means you are the owner against a specific person - relative ownership
But Romans had the concept that ownership is absolute - if you beat possessor then you should beat everyone
it was the main action by which the owner could recover property from any person who had it
– to succeed required proof of ownership – in principle required the claimant to prove who he had acquired the thing from was the owner and who that person acquired it from was the previous owner and so on and so on – this is the so-called prorbatio diabolica
However easier to prove ownership via usucapio
Classification of Res
J and G - a thing is anything that can be assessed in terms of money
law of things - abt the objects + contents of a person’s estate - rights such as citizenship went to status not law of things
In developed roman jurisprudence law of things comprised property, succession and obligation
Estate vs status
estate = assets, rights and duties, the corporeal thinks he makes or grows, and rights created by contract
status - comprises rights, liabilities and incapacities - given to a person by virtue of their legal position
Res corporales vs res incorporatus
corporeal vs incorporeal things
res incorporatus = so-called in iure re - known as praedial servitudes
Res patrimonio vs res extra patrimonio
in pat = things that can be owned
ex pat = things that cant be owned
according to G - division was those things that are human owned (humani iuris) vs those things divinely owned (divini iuris)
According to J - ex pat sub classified into ‘res nullius iuris’ and ‘divini iuris’
Res mancipi vs res nec mancipi
most important legal classification of things in patrimonio
res mancipi = slaves, beasts of burden, land in italy… and later , land in the provinces given the status of italic land and the rustic praedial servitudes
Res nec mancipi- all other things, however valuab- even in time when elephants and camels were used as beasts of burden they were not classified as res mancipi
Occupatio
acquisition of ownership of a thing simply by taking possession of it – applicable in respect of res nullis (things that had never been in Roman ownership or if formerly owned, had been abandoned)
Animals classed as ferae naturae or mansuetae naturae ( wild or domestic by nature ) animals ferae naturae only came under ownership when they were effectively reduced under control. Test for ownership is direct control of animal - J
for occupatio to be available to abandoned things - the thing must genuinely have been abandoned
occupatio of res nec mancipi -gives dominium
occupatio of res manicipi - needs usucapio to complete the title
Accessio
the acquisition of ownership of a tangible thing by its in corporation into something which already belonged to the acquirer , be the incorporation artificial or natural
Range restricted to 2 important factors
1) the thing acquired should have been incorporated in the other in a manner that it lost its identity,
2) it should be inseparably so incorporated
Confusio – name to a mixture of inseparable objects – the 2 parties ,who the objects belonged to prior to becoming inseparable, could claim their respective shares by the actio communi dividundo
Commixtio- merging of separable onjects belonging to diff owners – eg 2 flocks of sheep in one field – if done by agreement – result= common ownership – if not result= each owner could have the actio ad exhibendum and vindicatio to recover his own property
Adiunctio – separable attachment of one object to another – eg chariot wheel to chariot
if one builds on another’s land - owner of land is owner of building - even if others materials - he must wait till until house falls down or is voluntarily pulled down and then he can bring a vindicatio
But in the case of A building on his own land with B’s materials , B can bring about the action -actio de tigno iuncto – against A for a penalty of twice the value of the materials
Problems of rights in personam in regards to acessio
2 situations in which law is clear:
1) Union has been made in bad faith by the owner of the principle thing – eg A fixes B’s handle to his own cup
A’s act constitutes the delict of theft and so B can claim compensation + a penalty
2) B – former owner of the handle- is in possession of the whole- A owns the thing and so can bring vindicatio for it – B can plead in defence (exeptio doli) that A, even if he acted in good faith, ought to pay compensation for what he acquired – so if A does not pay compensation his vindciatio will fail
Rules of accessio and exceptions
Writing (scriptura) and painting (pictura) had special rules writing - the owner of the parchment etc that the writing was on was the owner of the book ,
But wirth painting – the painter is always the owner – even if the canvas used belongs to another – the painter is still the owner.
In all cases of genuine accessio – owner of principal element became owner of what was incorporated into it – regardless whether the incorporation was effect bona fide or mala fide.
specificatio
acquisition of ownership by creating a new thing ( nova species) out of materials wholly or partly to another- eg wine from grapes.
If maker owns part of materials used -the resulant product is the makers
In Roman classical law - J stated- with regards to situation where maker owns none of materials that if the nova species could be reduced to its former state , ownership of it vested in the owner of the materials, if it could not be restored then the maker was the owner of the thing
seems that in all these cases, as in accessio, the good or bad faith of the maker is irrelevant to his title.
Acquisition of fruits
In general the owner of a thing was the owner of the fruits it produced – could be fructus naturales (ie apples in an orchard, young of animals etc) or fructus civiles (rent of a house , earrings of a slave etc).
But something can be in usufruct and so the possessor holds it for the owner but gets to enjoy its fruits
Treasure trove
Treasure – consists of valuables that have been hidden so long that their owner can no longer be discovered
Hadrian provided that if a man found treasure on his own land he was entitled to it all, and if he found it on another man’s land, each man, the finder and the land owner, was entitled to half, provided the finding was by chance
law on a rights to a res
In general in roman law – rights not transferrable- in classical law and earlier no transfer of dominium- when a thing was created one’ dominium was destroyed and a new one created
Manicpatio
used to transfer res mancipi - formal mode of transfer
- best mode of transferring dominium iure civili
- was regulated by XII tables
- used in classical law but less and less
- abandoned by 4th century
- formal abolishment by J when he abolished distinction between res manicipi and res nec manipi
- occurs infront of 5 witness- must all be male, of age and roman citizens
- transferee makes a declaration - transferer says nothing -transferee places copper on scales
-transferer hands transferee the thing
Cessio in iure
-Parties go with the thing before the praetor, transferee holding the thing makes the assertion ‘……….’ Translating to ‘I say that this thing is mine by quiritary title’
-praetor asks the transferor if he makes a claim to this thing – he stays quiet – praetor formally attributed thing to the transferee
- In developed law – could be used to transfer- res corporalis , res nec mancipi and res mancipi -could also
be used in respect of res incorporales
- used a lot for adoption
- its ulility diminished and it became long obsolete before the time of J
Traditio
passing over of the thing - informal method
2 requirements
1) delivery of actual thing
2) causa
was the one derivative mode of natural law
- of peregrine ownership and of provincial land, in classical law it would give the owner bonitary ownership of res mancipi
- in later law it was common form of transfer
-In J law it was the sole form of derivative acquisition , and assuming transferor was owner or acting on his behalf , it always gave dominium - for traditio , the causa went to establish that one party delivered and the other party received the thing.
- a putative causa would suffice in Justinian’s time but it is very unsure whether a putative causa would suffice in classical roman law – most likely it would not
Causa
a reason for transferring ownership - there are 2 types
1) Real causa – is a true causa. the reason underlying the transfer of ownership really does exist- both parties believe they are transferring the object for the same reason – eg a sale #
2) Putative Causa – one that the parties simply think exist – they both believe they are transferring the thing for diff reasons ( eg one thinks it’s as a gift, one thinks its as a sale) - it is irrelevant whether the causa is valid or not, so long as 1) the transferor intends to give up ownership in the res; and 2) the transferee intends to acquire ownership of the res.
Tradition longa manu
Occurs when the thing was indicated to the transferee in circumstances that he was able to immediately assume control of it – eg debtor coming to see his creditor and pay debt was told to leave the money on a table at the other side of the room.
traditio brevi manu
-Occurred when a person was authorised to keep something as his own belonging to the transferee – eg borrower was told he could keep a book he borrowed
Constitutum possessorium
opposite of traditio brevi manu
transferor remained in physical control of the thimg but nature of control changes. Go from owner+possessor to simple detainer of the thing
– eg vendor sells dog to one but to be collected at a later date , in interim vendor is a detainer of the dog
traditio symbolica ( symbolic delivery)
-In classical law it was clear there was no such concept – traditio meant actual transfer of clear control
-Become common in postclassical period, - esp in respect to land
-Doc would be drafted recording conveyance to the transferee subject to a very short lasting usufruct reserved to the transferor
Bonitary owner and bona fide possessor
BO = the possessor whose title was only partially defective - typified by recipient of a res mancipi by traditio
BFP = possessor whose title was substantially defective because it was derived from a non owner
by civil law - their rights no more than potential - until uscapaion was complete - only protected via interdicts
Praetor intervened - bonitary possessor protected against everyone - BFA - all but owner
Usucapio
civil mode of acquisition but wholly private
it made the possessor of the thing become the dominus
- principle was after possessor held possession of thing for certain period + no challenge of dominus by owner - possessor become the owner and held dominus
-In classical law if a person engaging in usucapion died , his heir could take it over and if he completed it for the remaining required time then the usucapio would be complete
A break In or interruption of possession was known as usurpation – could be natural or civil
-Assuming a res habis and uninterrupted possession – also needed that there be bona fides ( good faith) on behalf of the acquirer.
-Where usucapion was for a gift , bona fides was required throughout the whole of possession in classical law.
-J abolished this rule and made it the ordinary requirement of bona fides at the moment of taking possession was all that was needed
Iusta causa- signifies preceding the assumption of possession , there was some transaction which led to the consequence of ownership passing and the acquirer taking possession. - HIGHLY IMPORTANT requirement of usucapion – in classical law and for J
As an institution of civil law , usucapion was only applicable to those who had commercio, the right to utilise roman civil processes and in the respect of things in commercio
Classical law conditions to become owner by usucapio:
A) To possess the thing
B) To at least have begun ( not needed to be completed in) that possession in good faith
C) A good cause for being in possession – contract of sale is a good cause
D) Possession for the relevant period ( 2yrs land, 1 yr for movables)
Jurists said usucapio was in public interest - ownership of property should not be uncertain for long periods of time
Longi Temporis Praescriptio
developed in law during the principate - for provincial land or to help with peregrines of acquisition of title by possession
it was extincitve in principle - did not give current possessor ownership of what he held - instead prevented the original owner - who is entitled to it - from asserting his claim to it - required that possession have a bonum itium (good beginning)
2 great differences between it and usucpaio were:
1) The length of requisite period of possession – 10 years needed between persons inter praesentes , 20 between people Inter absentes (Presence/absence
determined by J as if parties lived in same province or not)
2) Accesio temporum was always permissible - adding together of periods of holding
J essentially fuses longi temporis praescriptio (LTP) and usucapio – mainky along the lines of LTP
In respect of immoveables LTP was exclusively applicable – usucapion confined to the acquisition of moveables
longissimi temporis praescriptio
appeared in later empire
Constantine or his sons ruled that – no matter the origin – possession for 40 years – barred the claim of the person primarily entitled
J ordains that if possession was bona fide , the protection thus provided should be acquisitive so that the long term possessor could assert his rights with a vindicatio
