Proprietary concepts and servitudes

Question 1

what is dominium?

Answer 1

• oldest title in roman law
• roman ownership of a roman thing acquired by a roman process - thing has to be in commercio, acquirer had to have commercium
• not just ownership since other forms of ownership existed , and not just the right to use, enjoy and abuse because bonitary owners could as well, and at no stage was the power of a dominus over his property fully unfettered (eg TT forbade building within 2.5ft of the boundary of one’s land)

Question 2

peregrine ownership

Answer 2

• peregrini in general lacked commercium so couldn’t have dominium or use civil methods of acquisition and transfer
• could use ius gentium methods and were recognised as having a form of ownership, though how they could assert this right is unknown (might by a fictitious vindicatio)
• after the constitutio Antoniana in AD212 all free empire inhabitants got citizenship

Question 3

ownership of provincial land

Answer 3

• a privatus (ordinary person) couldn’t have dominium over provincial land because it was vested in either the populus or the emperor
• it was largely held by private individuals paying rent to the appropriate authority, who could use iuris gentium modes of transfer and create the equivalent of usufruct and praedial servitudes - they also had a modified vindicatio which asserted their right to have, possess and enjoy
• distinction between italic and provincial land lost all real significance in AD 292 and J abolished the distinction by abolishing the category of res mancipi

Question 4

bonitary/praetorian ownership

Answer 4

• lasted until J abolished distinction of res mancipi
• if someone acquired a res mancipi not in mancipatio or cessio in iure he held the thing in usucapio and had bonitary ownership
• if the holder was sued by the dominus in vindicatio, he had the exceptio rei venditae et traditae (thing was sold and delivered to him)
• if the holder lost possession he had the actio Publiciana (like a vindicatio) even against the dominus
• praetorian ownership applied to those holding the property by virtue of a magistrate’s order and had similar benefits
• as a result of Caracalla’s Edict and Justinian’s reforms, there was, in the time of the latter emperor, but one unified form of ownership, dominium, whatever the mode of its acquisition or the person of its acquirer

Question 5

possession

Answer 5

• a factual relation with a corporeal thing, neither a right in itself nor a legal relation
• physical control and power over a thing - a person in bad faith could possess something
• considerable connection with ownership - usucapio was the acquisition of dominium by possession for the appropriate period, determined who was the plaintiff in the vindicatio
• had legal consequences so came to be protected by possessory interdicts

Question 6

emphyteusis

Answer 6

essential a grant of perpetuity or for a very long period of land against a groundrent - as long as it was paid, the holder could do almost anything a dominus could (create servitudes, bequeath the land, mortgage it etc) - had interdictal possession

Question 7

precario tenens

Answer 7

interdical possession - precarium was grant at will, originally of land but in classical land also of movables, revokable at will by the grantor - precario tenens had full enjoyment during the period but couldn’t alienate the thing

Question 8

acquisition of possession

Answer 8

had to have both corpus (physical control - didn’t have to hold it, could be by sight of land) and animus (intention to control) - lunatics and young children couldn’t take possession (don’t know what they’re doing) - could be held/acquired animo suo corpore alieno (when someone else eg your slave has the corpus and you have the animus)

Question 9

loss of possession

Answer 9

if both corpus and animus disappeared or a possessor abandoned a thing or gave it away - could also be lost corpore solo or animo solo

Question 10

possession of a servus fugitivus (runaway slave)

Answer 10

school dispute - Paul reports Nerva (proculeian) as holding that a runaway slave continued to be possessed until another took him, only for the purpose of usucapio and that utilitatis causa but that Cassius and Julian (sabinian) held that possession of him continued with no suggestion of any qualification - texts reveal conflicting views but it appears not improbable that in later classical law it was accepted that a person continued to possess animo a runaway slave

Question 11

retention of possession in J’s law

Answer 11

once you took possession of a thing animo et corpore, you would retain it, if necessary animo solo, unless another took it on a good title (iusta cuasa)

Question 12

quasi possessio

Answer 12

• usufructuary had to have the thing at his disposal to enjoy his usufruct so was given interdicts as if he were its possessor, and holders of praedial servitudes appear to have originally have interdicts in respect of the physical means by which they exercised their right
• such persons were said to be quasi in possessione - in classical law this was where the interdict was granted to a non-possessor
• later law - conception changed into one of quasi-possession of the right itself - right-holder was viewed as having quasi-possession, as true possession was impossible due to the incorporeality of the right

Question 13

possessory protection- retinendae possessionis causa

Answer 13

• where the possessor had suffered or had reason to fear unjustified disturbance of his control - double interdicts (addressed to both disputants)
• uti possidetis (if the thing was immovable) - concerned with existing possession
• utrubi (if the thing was movable) - concerned who held the thing against his opponent for the greater part of the last year
• J assimilated the 2 interdicts so both lay only to protect the party currently in possession (utrubi changed to uti possidetis of movables)
• in both, possession was protected which was held nec vi nec clam nec precario as against the adversary - didn’t deny that one who held by force, stealth, or leave and licence would be possessor but didn’t give him the benefit of his wrongful conduct - if it was held wrongfully against a 3rd party, normal rules applied, if one possessor in the dispute held it wrongfully against the other he had to give it up

Question 14

possessory protection - reciperandae possessionis causa

Answer 14

• allowed recovery of possession lost by force - 2 in classical law, unde vi and unde vi armata (both only for immovables - for movables, utrubi sufficed)
• unde vi armata - unqualified direction to the addressee to restore the land to the person he’d evicted with armed force
• unde vi - restore the land and what he had on it to the man you evicted by force in the last year
• if the evicted person had been defective against the ejector, the ejector had a defence, but in J’s time forcible self-held wasn’t allowed , and only unde vi existed

Question 15

possessory protection - those in the course of usucapio

Answer 15

• had interdictal possession and the actio publiciana (same results as vindicatio if successful)

Question 16

possessory protection - bona fide possessors (who acquired the thing from someone they thought was an owner, but wasn’t, and consequently viewed themself as the owner)

Answer 16

• would be the principal beneficiary of the actio publiciana after J abolished the distinction between res mancipi and res nec mancipi
• could complete usucapio and become dominus
• weaker position - would have to succumb if sued by the dominus in a vindicatio, would be defeated if he brought an actio publiciana against the dominus by exceptio iusti dominii, would also be defeated by a bonitary owner
• could only win an actio publiciana against a claim inferior to his own
• if there were 2 bona fide possessors, the earlier recipient would prevail if they’d both received it from the same non-owner, but if they received it from different non-owners, the actual holder would win

Question 17

acquisition through 3rd parties

Answer 17

• could acquire ownership and possession through family members, people held in usufruct, bona fide slaves
• neither slave nor filius could do a valid cessio in iure or aduidicatio - paterfamilias could acquire ownership through mancipatio to a family member - if transfer was through traditio, paterfamilias would acquire it when he took possession himself
• possession was only complete with the paterfamilias’ animus - assent could be given in advance or by ratification
• possession through a runaway slave - school dispute - Nerva (proculian) is reported as having denied that one could possess through such a slave but Cassins and Julian (sabinian) disagreed - bulk of authority does concede the acquisition of possession through a fugitivus
• acquisition through bona fide servientes and slaves held in usufruct applied to what they acquired with the possessor’s property or through their own services

Question 18

alienation through a third party

Answer 18

• tutors and curators could alienate property of people under their guardship by natural modes of disposition
• fillifamilias and slaves (inc those held in usufruct and bona fide servientes) could dispose of paterfamilias’ property by any method except cessio in iure
• for independent free persons, the development was the same as for the possibility of acquisition through such persons - if such person handed over the thing to someone else or allowed him to come and take it, the owner lost possession of it - for transfer of ownership by free persons, it would appear such possibility was first recognised in the case of a procurator omnium bonorum and thereafter alienation through third parties generally became possible through a mandate to sell or otherwise dispose of a thing
• pledge creditors could dispose of things if the obligation for which it was security wasn’t discharged at the appointed time
• exceptions: husband couldn’t alienate land which was party of his wife’s dowry - pupilli, furiosi and prodigi (spendthrifts) couldn’t dispose of their property - women couldn’t alienate res mancipi without her tutor’s authority

Question 19

servitudes

Answer 19

• right exercised over something or land of which he wasn’t dominus, for benefit of himself (personal servitudes) or for the benefit of land of which he was dominus (praedial servitudes)

Question 20

praedial servitudes

Answer 20

• rights exercisable over land of which you weren’t dominus
• originally only servitudes
• praedium dominans (plot with the benefit) and praedium serviens (carried the burden)
• classical jurists didn’t have an abstract conception of servitudes but recognised common characteristics and rules for all praedial servitudes - couldn’t have a servitude over your own property, as burdens they imposed limitations of the servient owner’s control of his property, indefinitely durable so perpetual, had to be exercised to cause to cause the servient owner minimal inconvenience, 2 plots had to be adjacent
• could be subclassified into rustic and urban (required existence of buildings)

Question 21

praedial servitudes - rustic

Answer 21

• original 4 rustic servitudes were (in TT) iter (right of passage on foot), actus (right to drive animals), via (general right of passage) and aquaeductus (right to draw water across a neighbour’s land) - all res mancipi

Question 22

praedial servitudes - urban

Answer 22

• inc right to light, of support, restriction on building height
• right of support seems to breach rule that a servitude couldn’t impose a positive duty on the servient owner by making them keep the support wall in repair

Question 23

protections for praedial servitudes

Answer 23

• actio confessoria - action in rem, lay to the person asserting a servitude against the alleged servient owner who denied its existence - modelled on the vindicatio
• actio negatoria - also in rem, lay to the dominus of the allegedly servient land to deny the existence of any servitude
• some of them were protected by interdicts granted by the praetor
• if someone exercised eg a right of way without a claim the actio iniurarium would be available

Question 24

acquisition of praedial servitudes

Answer 24

• acquisition of a dominant tenement with an existing servitude carried with it the acquisition of the servitude
• as conceptions of ius civile, they could only be created by civil law methods - rustic servitudes over italic land could be created by mancipatio or by reservation
• any servitude could be created by cessio in iure, aduidicatio or legacy - later also by pact and stipulatio
• traditio of a right was impossible (rights are res incorporalis)
• servitudes in provincial land were apparently created by pact and stipulation
• long exercise probably could give title to a servitude - quasi-traditio et patientia

Question 25

termination of praedial servitudes

Answer 25

- cessio in iure, remancipation from the dominant owner - renunciation sufficed - confusio - vesting of the title to both the dominant and servient tenements in the same person - destruction of either tenement or fundamental changes in servient land eg drying up a water course preventing the ability to draw water would end a servitude of aquaductus - non-exercise - usucapio libertatis (2 years in classical law, 10/20 in J's law, consistent with rules of longi temporis praescriptio) - for rustic servitudes it was the lack of use, for urban servitudes it was if the servient owner did something which went against it and the dominant owner didn't stop them

Question 26

personal servitudes

Answer 26

- 4 in J's law: usufructus, usus, habitatio, operae sevorum vel animalium - rights in rem - applied to movables no less than land - probably became classified as servitudes in the late classical period

Question 27

usufructus - personal servitude

Answer 27

- late republic - could exist over movables, gave unlimited rights and was of limited duration (at most the beneficiary's life) - J defines it as the right to use and enjoy the things of another - had the thing at his disposal, could take the fruits but not diminish its substance - ended by least change of status (capitis deminutio minima) - fructus could be naturales (eg fruit from trees, young of animals) or civilis (eg rent of houses, slaves' earnings) - with usufructs of herds of animals, the fructuary had to give back the same number of animals (could keep excess young) - inalienable by the beneficiary, and if he tried to give it to the owner, the right was extinguished by merger - dominus retained full rights to sell etc and possessio - could vindicate from fructuary, or use the lex Aquilia for destruction or damage - fructuary could assert his right by an actio confessoria - fructuary had to give the cautio usufructuaria as security that he would behave like a bonus paterfamilias - only someone who gave it would be granted the actio confessoria

Question 28

usus - personal servitude

Answer 28

- modification of usufruct - right to use the thing without having the fruits of it - usuary could only satisfy the needs of himself and his immediate family - eg if it was usus of house, he could live there, even with lodgers, but couldn't let the premises since rent would be fructus - had to give security in respect of the thing (cautio usuaria)

Question 29

acquisition and extinction of usufruct and usus

Answer 29

- created through legacy, cessio in iure, deductio in a mancipatio, aduidicatio in a divisory action - end with expiry of the term for which they were granted or death of the holder - also by capitis deminutio of the holder - end by consolidatio - vesting of the right and dominium of the thing in the same person - in J's law, renunciation sufficed to end it - in classical law, complete abstention from dealing with the res for periods of usucapio, and in J's law for the new periods ended the right - fundamental changes in the res or its destruction also ended the right - had to be immediate and complete

Question 30

aduidicatio

Answer 30

- when judges split up common property or decide to give people things - eg actio communi dividendo - splitting up of things owned societas

Question 31

habitatio - personal servitude

Answer 31

- right to occupation of a house for life - classical law - controversy over whether it was usus or usufruct - J settled it as a distinct right in itself, allowing the donor to let the premises - could only be for life and was created by testamentary disposition - not lost by capitis deminutio or non-use

Question 32

operae sevorum vel animalium

Answer 32

right to services of slaves and animals - controversy whether it was usus or usufruct - given a separate title in the digest - created only by will and not lost by capitis deminutio or by non-use

Question 33

emphyteusis - not a servitude but a right in rem nested in a non-owner

Answer 33

- grant of land on long lease or in perpetuity upon the payment of groundrent - forfeited if rent wasn't paid - classical law seems to have viewed it as letting and hiring but some debate about if it was sale - could be transferred by traditio - holder granted interdicts and actiones fictitae to assert his title - little practical different in position to an owner - provincial land was basically all rented out in this way (all belonged to the emperor) - could be created by contract or by will - holder had the right freely to dispose of the land as long as groundrent was paid and it remained capable of return unimpaired when grant ended - could also create servitudes etc, acquire frutis, and could use a vindicatio utilis to assert his rights - right ended by agreement, death of the holder without heirs, destruction of land, forfeiture (land fell into bad state of cultivate or 3 years in arrear with groundrent)