Property

Question 1

Dominium

Answer 1

Dominium = ownership. This is distinct from possession, which refers to the factual matter of whom is in physical possession of the property.

Question 2

Vindicatio

Answer 2

This was a claim made for direct ownership of the property. In vindictatio, C would assert their claim to ownership of property.

Formula would allow D to return the property to C, before condemning D to pay the value of the property if they failed to do so.

Question 3

Requirements of dominium

Answer 3

1) Person had commercium - only Roman citizens were capable of owning property.
2) Property capable of private ownership, e.g. not public land.
3) Property acquired through appropriate method of acquisition - e.g. res mancipi had to be transferred through mancipatio or cessio in iure.

Question 4

Corporeal rights

Answer 4

Res corpareales - rights to tangible property. E.g. right to ownership of chair.

Question 5

Incorporeal rights

Answer 5

Res incorporales - rights that do not have a material existence, e.g. a rustic praedial servitude.

Question 6

Methods of transferring property

Answer 6

1) Mancipatio - formal mode of conveyancing. Required bronze to be clashed against a set of scales. Process had to be carried out in front of 5 adult, male, Roman witnesses. Mancipatio was only available to Roman citizens.
2) Cessio in iure - another formal mode of conveyance. Involved the transfer of a right in the form of a fictitious trial in front of a magistrate. Also only available to Roman citizens.
3) Traditio - informal method which involved delivery of possession of the property to the buyer.

Question 7

Res mancipi

Answer 7

This is a category of arguably the most important property, at least in early Roman society. Easier to set out list, rather than provide a broad definition.

1) Land
2) Slaves
3) Beasts of draft and burden
4) Rustic praedial servitudes

Question 8

Beasts of draft and burden

Answer 8

Included animals which were used in early Roman society for farming and transporting goods, e.g. cattle and livestock. Therefore, seems that elephants and camels were excluded, since these were only introduced to Roman society after the res mancipi class was established.

Question 9

Res nec mancipi

Answer 9

This category included everything else outside of the res mancipi category. Traditio could be used to transfer property in res nec mancipi.

Question 10

Mancipatio - transfer of property

Answer 10

If just transfer of property, then the effect of the mancipatio was to transfer property immediately and unconditionally to the transferee.

However, if the mancipatio was part of a contract of sale for res mancipi, then typically ownership did not pass until the price was paid.

Question 11

Cessio in iure - procedure

Answer 11

Gaius explained that cessio was performed before a magistrate with the transferor, transferee and property all present. Transferee grapsed the property and uttered same words as mancipatio. If transferor stayed silent, then property passed to the transferee.

Question 12

Traditio

Answer 12

Transfer of property through delivery of possession of the goods. Property could be delivered to the slave/representative of the transferee.

a) Traditio longa manu - property delivered by being pointed at, provided it was in the sight of the parties.
b) Traditio brevi manu - transferee in possession of property and transferor allows him to keep it.
c) Constitutum possessorium - transferor agreed to pass ownership but retained temporary control.

Question 13

Usucapio

Answer 13

Usucapio was a right to acquire ownership of property as a result of continuous possession. Allowed possession to be converted into dominium.

1 year period for movable objects; 2 years for immovable objects.

Question 14

Usucapio - requirements

Answer 14

4 requirements:

1) Continuous possession for required period.
2) Individual must have acquired possession on a proper basis.
3) Individual must be acquiring ownership in good faith - Gaius says this means holding possession honestly.
4) Possession must not have been acquired through theft or taken by force.

Question 15

Types of beneficiary from usucapio

Answer 15

1) Bonitary owners - individuals who acquired possession through a defective/failed transaction.
2) Possessors in good faith - individuals who met the other requirements of usucapio but did not acquire possession through failed transaction.

Question 16

Actio Publiciana

Answer 16

Action created by urban praetor called Publicius in his edict. Essentially a fiction used by the judge that the period of continuous possession for usucapio had already elapsed. C does not necessarily have property rights yet through usucapio, but can claim as though they had them through the actio publiciana.

Actio publiciana essentially waived the need for the period of continuous possession for usucapio.

Question 17

Possessory interdicts

Answer 17

Praetor started issuing these c. 200 BC. Interdict stated that until the trial was held, one of the parties could not interfere with the other party’s right to possession.

Legal possession for a possessory interdict excluded certain acquisitions of possession:

1) By force.
2) Secretly.
3) By grant.

Question 18

Uti possidetis

Answer 18

Possessory interdict for land. Legal possession through the interdict was typically awarded to the true owner.

Question 19

Utrubi

Answer 19

Possessory interdict for movable goods. Praetor would generally grant possessory interdict in favour of whomever had held the property for the longest period that year.

Question 20

Detentio

Answer 20

Party merely holding onto certain property. Different to legal possession granted as a result of the possessory interdict.

Question 21

Interdicts de vi

Answer 21

Class of intercits designed to give even quicker legal possession to immovables, i.e. land. These were available to individuals who had been removed from their property by D - allowed them to restore possession by removing D from the land.

Question 22

Unde vi

Answer 22

Ordered restoration of land to C who had been evicted by force, provided that C did not obtain possession in the first place by force, stealth or permission.

Claim for interdict unde vi had to be brought within one year.

Question 23

De vi armata

Answer 23

Allowed recovery of possession without the limitation of a year, and even if C had obtained possession by force, stealth or permission ass against the evictor. Only applied if armed force had been used.

Question 24

Rustic praedial servitudes

Answer 24

These were rights over land. Servitudes persisted for successors in title - lasted as long as the parties intended them to, and until they were terminated.

Question 25

4 original rustic servitudes

Answer 25

1) Iter - right to walk.
2) Actus - right to lead animals.
3) Via - right to drive cart.
4) Aquae ductus - right to construct a waterway from a stream.

Question 26

Deductio

Answer 26

Process of creating a rustic praedial servitude through two mancipatios. First transferred the entire land, and the second transferred the land back minus the rustic praedial servitude.

Question 27

Urban praedial servitudes

Answer 27

Rights over land that arose in towns/urban areas. Gaius gives the example of right to light over property - X can obtain servitude over Y that Y’s dominant tenement cannot obstruct the light to X’s land.

Question 28

Usufruct

Answer 28

Right to use and take the fruits of another estate. Used for commercial purposes - X merely transfers the benefit of the land to Y.

Question 29

Usufructuary

Answer 29

Usufructuary had the right to benefit from the land, but was also required to preserve it. High standard of care - bonus paterfamilias.

Ulpian said that the usufructuary could improve the land, so long as he did not change its character.

Question 30

Fruits of the land

Answer 30

1) Civil - income from hiring the property out, i.e. rent.

2) Natural - natural produce arising from the property.

Question 31

Emphyteusis

Answer 31

Proprietary interest granted to a private individual in land owned by a municipality. Essentially a long lease which allowed the grantee to deal with the land as he wished and profit from it.

Question 32

Superficies

Answer 32

Grant by the State or municipalities of land for building purposes.

Question 33

Res nullius

Answer 33

Property which had not been previously owned. General rule was that the first person to take possession of res nullis property became the owner.

Question 34

Domestic animals

Answer 34

General rule for ownership of domestic animals was that the owner owned them by simple possession - domestic animals could be released to graze and the owner still had dominium.

Question 35

Wild animals

Answer 35

Ownership of wild animals could only be obtained if the owner took effective control over the animal. Wounding the animal itself, without taking effective control, was probably insufficient.

Animus revertendi = animals with the habit of returning. These wild animals could be owned so long as they did not lose their habit of returning, i.e. that they did not leave their habitat.

Question 36

Abandoned property

Answer 36

Sabinians - abandoned property became res nullius once the owner phsyically divested themselves of property with the intention of abandoning it.

Proculians - abandoned property was not res nullius until another person acquired possession of the property.

More pragmatic Sabinian view appears to have prevailed.

Question 37

Treasure troves

Answer 37

Hadrian in 2nd century AD - rule = if treasure found accidentally, then it was split between the finder and the owner. But if treasure found intentionally, then the entire treasure went to the owner.

Question 38

Commixtio

Answer 38

Mixed solids that were readily separable. If done by agreement, the resulting mix became common property. If without agreement, then the property could be separated and returned to respective owners.

Question 39

Confusio

Answer 39

Blending of liquids or molten metal, belonging to different owners, which were not readily separable. Proportionate co-ownership of the mixed property occurred if the property could not be separated.

Question 40

Accessio

Answer 40

Inseparable attachment of property belonging to different owners. General rule = owner of principal thing in the product became its owner.

Property was not readily separable if undue effort, cost or skill was required to separate them, or separation would damage the property.

Question 41

Accessio regarding land

Answer 41

1) Avulsio - this occurred when an identifiable piece of land was carried by the force of a river and deposited on the land of another. Land attached to the estate on which it was deposited.
2) Alluvio - imperceptible accretion of soil on the land of another by the action of a river. Soil became part of the land.

Question 42

Specificatio

Answer 42

Acquiring ownership by the creation of a new thing out of someone else’s materials.

Sabinians - owner of materials can make vindicatio claim since their ownership was consistent throughout.

Proculians - transformative effect meant that the maker became owner of the new property.

Justinian resolved the dispute by taking a nuanced compromise position. Where the product was not reducible into its original form, the maker owned the new product. However, where it was possible to reduce the product, the owner of the materials owned the product.

Question 43

Separatio

Answer 43

Severance of fruit-bearing property from the land. As soon as severance occurred, ownership transferred.

Emphyteusis - tenant was entitled to fruits of land by severance.

Question 44

Perceptio

Answer 44

Active collection or gathering of fruits from the land.

Question 45

Usufructuary - acquiring fruits

Answer 45

Usufructuary had to gather fruits for ownership to transfer. E.g. when apple falls off tree, it only becomes the property of the usufructuary when they pick it up - mere severance is not enough.

For usufruct over flock of sheep, usufructuary can take fruits of animals (e.g. lambs) but must eventually return the flock to the owner.