property 2 - ownership and concepts

Question 1

Law of things

Answer 1

Is so large it is further split into 3 subsections

1) Law of succession
2) Law of property (or things in the narrow sense)
3) Law of obligations

property and obligations are 2 types of asset - succession is not

Question 2

Property vs Obligations

Answer 2

As assets:
property = owning something
obligations= being owed something

this diff is typically shown by the distinction between actions in Rem and actions in personam

Question 3

Action in Rem Vs actions in personam

Answer 3

a claim is one or the other - cannot be both

In Rem = asserts a relationship between a person and a thing - eg a vindicatio asserts one is the owner of a thing

In Personam = asserts a relationship between persons - eg condictio - asserts that D owes a sum of money/physical thing to plaintiff

Rights In rem = subject of law of property
Rights in personam = subject of law of obligations

Question 4

Contract vs Conveyance

Answer 4

An act cannot create a right in rem and a right in personam

for a right in personam to be created a contract must be made

for a right in rem to be created, we need a conveyance (an act recognised by law as appropriate for the purpose)

In early roman law - conveyance often public- mancipatio, in iure cessio etc - as rights in rem potentially affect all

But in late Roman law a conveyance was often nothing more than a document drawn up by the 2 parties

In principle Roman law required an actual delivery before ownership could pass - ownership couldn’t pass without the passing of possession

Question 5

Ownership and possession

Answer 5

Distinction between the 2 is the most fundamental distinction in law of property

Ulpian - ‘ownership has nothing in common with possession’ - yet possession is generally the foundation for ownership

The difference between having a thing and being entitled to that thing is at the root of the distinction between ownership and possession in Roman law.

Possession was a legal concept based on fact
Ownership was based on entitlement

Question 6

Possession

Answer 6

There are 3 types

1)possessio civilis - civilian possession - acts as if or tho they are the owner - BO + BFA
2)possessio
3)possessio naturalis - sub possession of detention - you are not protected - tennants etc

Question 7

Protection of Possession

Answer 7

Possession alone has barest of legal consequences in Roman law - it is protected

Possessor can use remedies called possessory interdicts to possession from anyone who dispossess him

Question 8

Possessory interdicts

Answer 8

there are 2 main types

Retinendae possessionis – available when possessor suffered or had reason to fear unjustified disturbance of his control

Reciperandae possessionis causa – allowed recovery of possession lost by force – in classical law there were 2 available – unde vi and unde vi armata

For example: A is in occupation of land and B evicts him- he can compel B to restore the land to him provided he can meet 2 requirements: 1) his occupation must have amounted to possession in law, and 2) that possession must not have been obtained by vi (by force), clam (secretly), or precario (by grant at will) from B

However they only work against the dispossessor
But the title of either party is irrelevant
and The possession which is in issue must not have been obtained vi, clam, or precario from the other party.

Question 9

Possession in Roman law - what does it mean

Answer 9

Romans offer no definition of possession

But acquisition of possession has 2 elements

1) animus - consciousness of taking control of the thing - mental element
2)Corpus - actual taking physical possession and control of the thing - physcial element

Paul: ‘one acquires possession by an act of the mind and an act of the body, (animo et corpore)

Question 10

Possession and BO and BFP

Answer 10

Owner who claims vindicatio against BFP must succeed

For BO, def is allowed to submit a defence where judge must acquit him if the thing was sold and delivered to him by the plaintiff - eg owner’s vindicatio will not succeed if he had conveyed rec mancipi to BO via traditio as part of a sale

Question 11

Actio Publicana

Answer 11

If P is on the way to usucapion and loses possession, T takes the thing and gives it to D - interdicts will not apply

IF D is the owner then the BO succeeds in claiming it back but BFP fails.
If D is not the owner then P must succeed in either case

This action by P to reclaim the thing is actio publicana

-Formula begins- by assertion from plaintiff that if he had held the thing in his possession for a yr ( or 2), he would be the owner
-Nothing but lapse of time is presumed – plaintiff must prove all other usucapio requirements met

Question 12

BO and BFP’s relationship with ownership

Answer 12

In civil law a man was either the owner or he wasn’t

so BO and BFP as far as the civil law was concerned, had no better title than a mere possessor.

But the effect of the actio Publiciana was to create two other forms of what could have been called Praetorian ownership

BO was not a dominus

Question 13

Bonitary Ownership

Answer 13

only differed technically from dominium and could have been made consistent with the uniqueness of ownership had the Romans been willing to theoretically recognise that traditio of a res mancipi passed ownership

J did this by abolishing the distinction between res mancipi and res nec mancipi – bonitary ownership disappeared from the Corpus Iuris (body of law)

Question 14

Ownership

Answer 14

There is no formal definition in Roman Law

Commentators often adapt the definition of usufruct to create a definition of ownership in terms of enjoyment
- this can be misleading - occasions where owner is left with no rights to enjoyment - iure in re aliena

Thomas defines ownership as the ultimate residual right in a thing, the right that will remain after all others have expired.

Question 15

Ownership as absolute

Answer 15

Roman ownership is often said to be absolute - in several senses

1) sense of enjoyment - nichols warns this is misleading

2) absolute in title - owner’s rights are not reive, better than other competing rights…. - it is the only right of it’s kind - superficially true of roman law - there’s no immediate middle ground between right of ownership and fact of possession - counter agruement that Bo and BFA are in the middle

But could be argued it was not absolute in the sense that plaintiff in all likelihood in a vindicatio was required to prove that he had the best and the only right.

Absoluteness of ownership can also be seen in its inviolability

Question 16

Dominium

Answer 16

The right/title of the owner of a thing

It was the only form of ownership - is this true ? BO?

Romans adhered to the indivisibility and uniqueness of dominium – turning a blind eye to the claims of bonitary owner and bona fide possessor to be classed as forms of ownership- both are territum quid between ownership and possession

Bonitary owner being owner in all but a few technical details

Bona fide possessor being effectively a relative owner – owner in regards to all except the dominus

Question 17

Inviolability of ownership

Answer 17

the principle that a man shouldn’t lose ownership without his consent – this is justified by the public interest that rights in rem should be readily ascertainable (capable of being found out)

classical law is more extreme on the instance that ownership is inviolable than any modern system

It allows no inroads on the inviolability of ownership other than usucapio and longi temporis praescriptio -and the scope of these was limited

J’s longissimi temporis praescriptio made a further and more substantial inroad – but time period required was very long.

No other inroads- Roman law stuck to the rule that a man cannot transfer a better title than he has

Question 18

iura in re aliena

Answer 18

rights in rem over another man’s property

for example a usufruct - or a neighbour who has a right to graze cattle on his neighbour’s land

The principal ones of these are termed by J’s servitudes – but there are 2 types of right under this heading that are so diff in character and function that they’re best considered separately

theses are personal servitudes and praedial servitudes

Question 19

Praedial servitudes

Answer 19

It’s a right in rem over a plot of land or building and annexed (held by) to another plot of land or building

ie Land A has a right to pipe some of Land B’s water onto Land A

Land/building right is exercised over is called the ‘servient’

Land/building the right is annexed to is called the ‘dominant’

,the set of rules that governed praedial servitudes were necessarily restrictive

The owner of the servient land could not be required to do anything; he could merely be required either to abstain from doing something or to permit the owner of the dominant land to do something on the servient land

further rule required that a servitude should be for the benefit of the dominant land and that it should be used exclusively for that purpose – prevents exploitation of servitude for industrial purposes

Praedial servitudes are of 2 kinds:

1- Rustic – rights of way and of water – they were rec mancipi
2- Urban – rights of light and support for buildings

Question 20

Personal servitudes

Answer 20

In J’s law there were 4

Usufruct – right to use and take the fruits of another’s property, movable or immovable, without fundamentally changing its character

Usus – fraction of usufruct – entitling one to use of the property but could not take the fruits

Habitatio- modification of usus applicable to houses

Operae servorum- modification of usus applicable to the services of slaves

They reside/vest in a person, irrespective of ownership- they are inalienable

commonest purpose of usufruct is to make a family settlement
- digest example of a usufruct created by legacy
- if one wanted to leave his property to his wife and then his son, he could leave it to his son subject to usufruct in favour of his wife.

Blackacre = the right to land

Question 21

Emphyteusis

Answer 21

originates in the practice of granting state or municipal land ( ager vectigalis) for very long time periods, or forever, in return for annual rent payments

These grants – they are inheritable and alienable - the holder had a ‘real relation to the land – unlike an ordinary lessee - he had possession

In the late empire ager vectigalis was assimilated to emphyteusis – by time of J it had been adopted by private landowners

By this time- the holder (emphyteuta) had not merely possession- but like the owner or the usufructuary, an actio in rem- where the emphyteusis was perpetual, he was for all practical purposes an owner, except that his holding might be terminated by 1) his dying without successors, 2) by forfeiture for non-payment of rent 3) for irremediable damage

Question 23

Superficies

Answer 23

– corresponds to modern English building lease – in eventual form was a right in rem in a building – it was a) inheritable and b) alienable – lasts forever or a long term

Right in the building – Not the land its built on

The owner of the land still owned the building - just as the grantor of land by emphyteusis retained ownership of it- but the right of the superficiarius- as of the emphyteuta- was so extensive that so long as the superficies endured there were in effect two ownerships

Question 24

Acquisition via third parties

Answer 24

A person could acquire ownership and possession through members of his familia (ie filiifamilias and slaves), whom he held in usufruct, Bona fide servientes

anything acquired by a filius or slave was given ownership to his pater or dominus – even tho it was acquired without his consent

If mancipatio of res mancipi to family member - the paterfamilias acquires the thing instantly
If traditio – and so, in the case of res mancipi, requiring further usucapio- the head of the household would acquire the thing when he himself took possession of it

Basic position of civil law (with exceptions of the tutor and the curator) = there could be no acquisition of either ownership or possession through a free person outside of the family

-It became accepted that possession could be acquired through a procurator omnium bonorum - a general representative or factor who managed one’s affairs

Question 25

Alienation via third parties

Answer 25

A, tutor or curator could alienate the property of the person under his guardianship, where permissible, by natural modes of disposition

B, Filiifamilias and slaves – including those held in usufruct and bona fide servientes – could dispose of property (alienation) for their paterfamilias or master by any method – other than cessio in iure, was excluded by their incapacity to participate in legal proceedings

C, alienation throug independent free persons , the development was the same as for the possibility of acquisition through them

• If such a person handed over a thing to someone else or allowed him to come and take it – the owner lost possession of the thing
• After introduction of transfer of ownership through procurator omnium bonorum – alienation through third persons generally became possible -through a mandate to sell or otherwise dispose of the thing – provided there is the owner’s authorisation

D, Pledge creditor – under contract of pignus- could dispose of the thing – if the obligation for which it was security was not discharged at the appropriate time
- Initially power conferred by express agreement – but by mid-classical era of law – power of disposition had become implied unless it was expressly excluded

E, certain owners – at least in particular circumstances could not alienate their property

-Husband cannot alienate land which formed part of his wife’s dowry
-Pupilli, furiosi and prodigi, spendthrifts, could not disposes of their property
-A woman couldn’t alienate res mancipi without the authority of her tutor

Question 26

security for debt

Answer 26

When A borrows money from or creates some sort of contractional obligation to B, A becomes the debtor and B becomes the creditor

B will often want security for the debt - can be real or personal

Question 27

Real vs personal security

Answer 27

Real security = granting of ownership, possession or a ius in re aliena over property of the debtor or of some person prepared to answer for the debtor
- Entitles creditor to at least retain or recover the property and sell it in satisfaction of debt if required
- Common example is mortgage

Personal security = merely the addition of another debtor ( the surety), or several additional debtors, to the first

Personal security = pure contract

Real security = property and contract – contract in the rights of the parties inter se are concerned, matter of property as the rights of the creditor in rem are concerned

Question 28

Fiducia

Answer 28

an agreement or trust that the creditor would reconvey the conveyance given by debtor to creditor as real security back to him when the debt was paid

usually contain provisions as to the creditor’s right to sell, and the disposal of any surplus arising from such a sale, and so forth.

Fiducia remains in use during classical period – but we also see dev of pignus

Question 29

Pignus

Answer 29

involved transfer of possession not ownership – debtor better protected than in fiducia – but creditor less so

The remedying of this defect forms part of the development of a variant of pignus which gave the creditor neither ownership nor possession but a bare ius in re aliena