Servitudes Flashcards

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1
Q

Servitudes - what?

A

Schulz - a “burden”

Marcian - a “benefit”

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2
Q

Servitudes must…

A
  • not be over one’s own property
  • be economically beneficial (D.8.1.15)
  • not impose active duties (D.8.1.15.1)
  • be used and exercised reasonably (D.8.1.9)
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3
Q

Purpose of servitudes

A
  • effective use of land: economic efficiency

- allowance of complex arrangements: autonomy

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4
Q

Praedial servitudes

A
  • rights a person had by virtue of owning land.

- attached to land (D.8.4.12)

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5
Q

Rustic praedial servitudes

A
  • iter (walk)
  • actus (drive)
  • via (walk and drive)
  • aquae ductus (channel water)
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6
Q

Creation of rustic praedial servitudes

A
  • mancipatio
  • cessio in iure
  • usucapio (until lex Scribonia)
  • pact/stipulation
  • quasi-traditio and patienta (delivery and intention)
  • long use (nec vi, nec clam, nec precario)
  • long temporis prescriptio (nec vi, nec clam, nec precario)
  • deductio
  • by will
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7
Q

Extinction of rustic praedial servitudes

A
  • legal/factual destruction
  • merger
  • non-use
  • release
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8
Q

Protection of rustic praedial servitudes

A
  • ownership level: actio confessoria and negatoria

- possessory level: possessory interdicts

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9
Q

Urban praedial servitudes

A
  • right to non-obstruction of light; right to prevent this…

=> existed in both positive and negative form.

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10
Q

Creation of urban praedial servitudes

A
  • adiudicatio
  • mancipatio
  • cessio in iure
  • usucapio (until lex Scribonia)
  • pact/stipulation
  • quasi-traditio and patienta (delivery and intention)
  • long use (nec vi, nec clam, nec precario)
  • long temporis prescriptio (nec vi, nec clam, nec precario)
  • deductio
  • by will
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11
Q

Termination of urban praedial servitudes

A
  • legal/factual destruction
  • merger
  • non-use
  • release
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12
Q

Protection of urban praedial servitudes

A
  • ownership level: actio confessoria and negatoria

- possessory level: possessory interdicts

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13
Q

Usufruct - what

A

“The right to use and enjoy the things of another without impairing their substances” (Paul, D.7.1.1.)

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14
Q

Usufruct - rights

A
  • to use the property in authorised way (otherwise lex Aquilian action)
  • to take its fruits
  • sell/lease of the right
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15
Q

Usufruct - duties

A
  • to take care as the reasonable person
  • to return unchanged (allowing for wear and tear)
  • property could be improved as long as this did not alter the character (D.7.1.13.4)

=> encompassed in the cautio

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16
Q

Quasi-usufruct

A

For perishables - by will only

17
Q

Usus

A
  • right to use the property, but not to take its fruits (apart what was necessary to maintain the household)
  • no lease/sale
18
Q

Habitatio

A
  • the right to live in a house
  • late Empire
  • by will only
19
Q

Operae sevorum vel animalium

A
  • late Empire
  • by will only
  • the right to use slaves and animals
20
Q

Creation of personal servitudes

A
  • grant through legacy
  • imposition by law
  • any praedial method
21
Q

Protection of personal servitudes

A
  • actio confessoria/negatoria
  • act furti/utilis
  • possessory interdicts
  • actio on the contract of the cautio
22
Q

Termination of personal servitudes

A
  • death
  • expiry of the usufruct/servitude
  • loss of status (not applicable to habitatio or operae)
  • non-use (2 years for land, 1 year for movables)
23
Q

Contractual proprietary interests

A
  • emphyteusis (long leases)
  • superficies (for building purposes)
  • pignus (types of mortgages; creditor allowed to keep the fruits)