Property 1 - modes of acquisition

Question 1

Original modes of acquisition

Answer 1

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

Question 2

Derivative Modes of acquisition

Answer 2

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

Question 3

Prescriptive modes of acquisition

Answer 3

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

Question 4

Vindicatio

Answer 4

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

Question 5

Classification of Res

Answer 5

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

Question 6

Estate vs status

Answer 6

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

Question 7

Res corporales vs res incorporatus

Answer 7

corporeal vs incorporeal things

res incorporatus = so-called in iure re - known as praedial servitudes

Question 8

Res patrimonio vs res extra patrimonio

Answer 8

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’

Question 9

Res mancipi vs res nec mancipi

Answer 9

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

Question 10

Occupatio

Answer 10

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

Question 11

Accessio

Answer 11

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

Question 12

Problems of rights in personam in regards to acessio

Answer 12

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

Question 13

Rules of accessio and exceptions

Answer 13

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.

Question 14

specificatio

Answer 14

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.

Question 15

Acquisition of fruits

Answer 15

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

Question 16

Treasure trove

Answer 16

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

Question 17

law on a rights to a res

Answer 17

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

Question 18

Manicpatio

Answer 18

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

Question 19

Cessio in iure

Answer 19

-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

Question 20

Traditio

Answer 20

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

Question 21

Causa

Answer 21

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.

Question 22

Tradition longa manu

Answer 22

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.

Question 23

traditio brevi manu

Answer 23

-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

Question 24

Constitutum possessorium

Answer 24

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

Question 25

traditio symbolica ( symbolic delivery)

Answer 25

-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

Question 26

Bonitary owner and bona fide possessor

Answer 26

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

Question 27

Usucapio

Answer 27

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

Question 28

Longi Temporis Praescriptio

Answer 28

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

Question 29

longissimi temporis praescriptio

Answer 29

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