property 2 - ownership and concepts Flashcards
Law of things
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
Property vs Obligations
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
Action in Rem Vs actions in personam
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
Contract vs Conveyance
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
Ownership and possession
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
Possession
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
Protection of Possession
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
Possessory interdicts
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.
Possession in Roman law - what does it mean
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)
Possession and BO and BFP
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
Actio Publicana
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
BO and BFP’s relationship with ownership
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
Bonitary Ownership
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)
Ownership
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.
Ownership as absolute
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
Dominium
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
Inviolability of ownership
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
iura in re aliena
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
Praedial servitudes
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
Personal servitudes
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
Emphyteusis
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
Superficies
– 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
Acquisition via third parties
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
Alienation via third parties
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
security for debt
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
Real vs personal security
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
Fiducia
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
Pignus
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
Donatio
Is a gift
J includes it as a mode of acquisition - wasn’t really tho
in actuality it is a convenient term for transactions where receiver gets a benefit at the expense of and by the will of the donor - without the receiver having to commit anything himself
2 types
donatio inter vivos
donatio morta causa
donatio inter vivos
Gift intended to take immediate effect
There were limitations on quantity or size of the gift
In principle it was irrevocable once made but had exceptions
- If gift were for a specific purpose (sub modo)- which the donee could not or would not implement – the donor could recover its value by condictio in normal way
- Gifts to freemen – revocation was possible on the grounds the donee showed ingratitude – revocation automatic apparently
- J extends the availability of revocation on grounds of ingratitude to anyone
In later empire - gifts had to be registered
donatio morta causa
gift made by a person about to die on the condition that they do die
- can be reclaimed by donor if they do not die
The condition of the prior death of the donor could be found in 2 ways:
1) Suspensively – ‘ if i die, you are to have this’ – no ownership passed and so even if possession had passed – donor could vindicate it back
2) Resolutively- ‘I give you this but, if I do not die, I want it back’ – ownership did pass to donee in classical law but donor has a condictio for recovery of its value – in J’s law ownership reverts automatically – donor could vindicate the thing he transferred
Restrictions on gifts inter vivos
- A lex Cincia provided that, save as between certain relatives, gifts exceeding a certain amount were unenforceable to the whole amount
- the lex was operative only as a defence to the donor-
- if he regretted his promised gifts and he were sued by the intended donee of the gift – he had the exceptio legis cinciae
- but if the gift had already been made – it was effective and irrecoverable from the donee
- exceptio legis cinciae – only available to donor and not to his successors
Later empire : lex cinciae replaced by a system of registration, insinuatio, of all gifts
- under J – gifts of >500 solidi - if unregistered – the excess over the limit was void – unless gifts were to charity, the church or the emperor – if the thing passed to the donee, ownership passed only pro tanto, the party having the larger share being able to buy out the other
Gifts between husband and wife were void with the exceptions of:
1) Dowry
2) Donatio propter nuptias
3) Modest presents on birthdays/similar occasions
Gifts from a paterfamilias to those in his potestas were ineffective – persons alieni iuris having no proprietary capacity – could become valid on his death provided he didn’t have his mind changed
In classical law or later no specific requirement in terms of the form of the gift
- Informal arrangements to make a gift (pacta donationis) were enforceable by law under J – actual delivery was needed to transfer dominium
