Week 2- Property (taxonomy and the acquisition of things)

Question 1

How does Gaius divide things into two classes and how does this impact on these things?

Answer 1

‘Those subject to divine law, those subject to human law’

Things subject to divine law are sacred and religious things and generally therefore cannot be the property of someone’s
-Those subject to human law can generally be owned by people, whether public or private.

Question 2

What is the difference Gaius and Justinian makes between public and private things, and then corporeal things and incorporeal things?

Answer 2

“those which are public are held not to be the property or any-one, for they are looked upon as belonging to the whole community. Private things are those which are the property of individuals”
-G2.12 “Again some things are corporeal, others incorporeal (material or non-material)” 13: “corporeal things are those which are tangible, as land, a slave, a garment, gold, silver and indeed other things innumerable.”
incorporeal things are those which are not tangible, such as those consisting in law as an inheritance, an usufruct, or obligations in any way contracted.

Question 3

Whats the difference between rights in rem and rights in personam?
What is res?

Answer 3

• These assets are either what he owns or what he’s owed, either rights in rem or rights in personam. Rights in rem are the province of the law of property (physical things), whilst rights in personam are the law of obligations.
• “res” means things. Merely a physical object, but also in the eyes of the lawyers, abstract things which exist in the minds eye eg debt, a right of way etc.

Question 4

How does a right in rem come about and how does a right in personam come about?

Answer 4

• How the two different rights come to existence is also distinguished:
• A CONTRACT CREATES A RIGHT IN PERSONAM but not a right in rem (it is an obligation) whereas a conveyance (the legal process of transferring property) creates a right in rem (the ownership of the physical thing has been passed to another) but this does not create a right in personam.
• This difference is rooted in the fact that rights in rem are public and visable because they affect everyone, and therefore conveyance is a visable and public act. Whereas rights in personam are private contracts between parties.

Question 5

What are Res mobiles and Res immobiles with examples?

What are Res Mancini and res nec mancipi with examples?

Answer 5

1) Res Mobiles and res immobiles - Need to distinguish between land and the buildings which sit with the land, set apart from other things, such as a cart. Movables eg a cart and immovables eg a buulding
‘the twelve tables laid down two years as the period for the prescriptive acquisition (usucapio) of immovables, where one was sufficient for movables.

2) Res Mancipi and res nec mancipi- res mancipi were slaves, beasts of draught and burden (horses, asses and mules), italian land and houses on such land, and rustic praedial servitudes eg rights of way and water over such land. All other things were res nec mancipi. Practically res mancipi could only be conveyed (transferred) by mancipatio or in iure cessio. Justinian later on abolished this difference.

Question 6

What are the derivative forms of acquisition and the original forms of acquisition and why do they have such names?

Answer 6

Derivative= mancipatio, In Iure Cessio, traditio

Original= Usucapio (and longi temporis Praescriptio), occupatio, specificatio, accessio.

The difference is that in derivative cases, there is a TRANSFER OF OWNERSHIP from transferor to transferee, whereas it appears that original modes involve new owners being created ie either it was ownerless property (res nullius) or a new thing was created and therefore first acquirer becomes owner.

Question 7

What happened in mancipatio, what things were capable of being emancipated, and what factors didn’t impede on its legitimacy?

Answer 7

-This conveyance required a transferor and transferee, the property to be transferred, at least 5 witnesses to this, and a libripens (a person holding scales). The witnesses and libripens had to be roman citizens of age with commercium.
The transferee grasped the property, asserted his ownership with set words and struck the scales with the bronze which he handed to the transferor. On completion the transferee became dominus (owner)
-For movables, could only use Mancipatio to transfer ownership for as much as could be grasped. Unless it was land, a symbolic piece of earth would suffice to represent the whole amount of land, or if a flock of animals, one representative animal would suffice too.
–The basic rule was that Mancipatio of res mancipi transferred ownership (dominium) to the transferee (who became dominus). The ceremony was procedurally important to represent sufficient intention and legitimacy. Ownership was transferred unconditionally and immediately- it could not be postponed and take place at any further point in time. If the mancipatio consisted of an actual sale, ownership normally passed once the price was paid.

-Provided it was correctly performed, it could not be impugned on grounds such as fraud or duress. The transferee could not give what he didn’t have.

Question 8

How did mancipatio change overtime before being abolished by Justinians time?

Answer 8

-Finally overtime it became normal to record mancipatio in a written document, which sufficed as conclusive evidence for the transfer of property by this ceremony even if it had not taken place, but was abolished by Justinian, as it was a sign of a distant age.

Question 9

What was in Iure Cessio and why was different and less problematic than mancipatio?

Answer 9

In Iure Cessio- also a very formal mode of conveyance, originating before the XII tables but fading in importance before Justinian. Also performed in front of a magistrate, with the transferor and transferee present and the property to be transferred. The Praetor asks the transferor whether he claimed the thing, if he denied or kept silent, he was taken to have transferred his rights, with the praetor awarding property to the transferee, but could be used for res Mancipi or res nec mancipi

• Mainly used for transferring incorporeal things eg servitudes or creating inheritance
• -Again, a procedurally accurate ceremony meant factors such as duress or fraud were irrelevant. There were less problems with the use of Iure cessio than mancipatio due to the limited number of things it could be used for.

Question 10

What was Traditio and what were the two basic essentials of traditio?

Answer 10

• A delivery and the appropriate intent.
• The essence was that the transferee was put into physical possession of the property, but this did not necessarily mean a physical transfer to the transferee, ie he didn’t have to be involved. It could be made to his slave too, or the thing could be indicated to be transferred so long as it was in sight.

Question 11

What were the 4 types of delivery, including one which developed towards the late empire which was of great practical importance?

Answer 11

1) Traditio Longa Manu: When the property was pointed at, provided it was in sight of the parties and capable of being transferred to the transferee’s control. This was useful for larger objects eg columns which weren’t capable of hand delivery.
2) Traditio Brevi Manu: when something which has been lent to the transferee is allowed to be kept by the transferor eg someone has borrowed it and is allowed to keep it. Words of authorization sufficed for the intent of this delivery.

3) Constitutum Possessorium:
- Where the transferor agreed to pass ownership to the transferee, but the transferor retained temporary possession. The agreement to pass ownership constituted the delivery since it was regarded as besting possession and effective control of the thing to the transferee (he could terminate the transferor’s temporary rights if he wished to)

4) Symbolic delivery:
- A late empire example of delivery where the two parties are not actually present, but something symbolises delivery eg the passing of house keys or a document symbolising the passage of property.

Question 12

What was a Iusta Causa and was mistaken Iusta causa important in traditio?

Answer 12

Iusta causa= a lawful cause eg gift or sale

• If parties were mistaken as to the Iusta causa, ie one party though it was a sale and the other thought they were receiving a gift, the traditio is usually still valid provided there was intention of transferring ownership by both parties.
• However mistakes as to the parties or the property can negate an effective transfer of ownership; a mistake as to who the transferee is, or if there was a difference in intention as to whether ownership be passed.
• A traditio could however be valid if the transferor did not have a particular transferee in mind ie someone throwing coins into a crowd.

Question 13

What is Usucapio and what things does Gaius say can be acquired by Usucapio (subject to how many years?)

Answer 13

G2.42“The acquisition by use of movables is completed in one year, that of lands and of buildings in two years, and this is so provided by the statute of the twelve tables.”

Original mode of Prescriptive acquisition. Modestinus says it is the acquisition of ownership by continued possession for the period prescribed by law. The consequence was to reduced problems caused by uncertainty over ownership.

• Those who benefited were often people who had acquired property innocently, but lacked dominium over it through some flaw in their ownership. Could often provide a claim to fall back on in an undetected and unintentional breach of the requirements of conveyance eg mancipatio (before being abolished)
• Created under the XII tables, and the requirements developed to be: possession, lapse of time, continuity, good faith, iusta causa and property capable of being usucapated.

Question 14

What were the requirements of a successful usucapio (Gaius)?

Answer 14

Lapse of time- 1 year for movables, two years for land. The deceased could pass his time of use to heir, so long as no one interrupts the continued use
-In the later classical period a buyers possession could be added on to the sellers possession, provided they were both in good faith
Continuity- must be continued possession
Good faith- must acquire the thing in good faith, but knowledge that it was not acquired in good faith after transferring possession will not void usucapio. (good faith was not necessary when an heir rejected their inheritance)
-Iusta Causa- had to be agreed Iusta Causa unlike in mancipatio or traditio
-Property capable of Usucapio- land (not provincial land though, another method for this), stolen land not capable, or property acquired by force.

Question 15

What was Longi temporis Praescriptio? (provincial land not capable of Usucapio)

Answer 15

Usucapion of provincial land not possible because it was not capable of private ownership. Longi temoris Praescriptio meant ‘lengthy prescription’ and was a medium by which provincial land could effectively be attributed to a possessor, gaining legal backing in AD 199.

• The required period was 10 years if the parties resided in the same province, otherwise 20 years. Most rules of Usucapio applied ie had to be good faith and Iusta causa. The main difference was that a possessor could add his predecessor’s period of possession to his own.
• In the late empire the possessor’s possession was so strong that they were considered to be acquired owners. The two systems became blended together under Justinian.

Question 16

How did Usucapio change under Justinian?

Answer 16

Justinian extended the periods to three years for movables and 10 years for land.

Question 17

What was occupatio and what were res nullius?

Answer 17

• The law of ‘first-taking’ ownership of ownerless property. Property could be ownerless because it never had an owner before, or because the previous owner had intentionally ceased ownership (abandonment). Most importantly relates to things which never had owners, enemy property and abandoned property
• Res nullius, property which never had an owner or which has become ownerless

Question 18

What things were capable of occupatio?

Answer 18

Things which never had owners eg wild animals. Such animals included birds, bees and fish, things found on the beach or in the sea

Enemy property- enemy property found on roman land could be taken but booty captured in military action was deemed to be possessed by the state

Abandoned property- : The first taker of abandoned property became owner providing he had intention to acquire it. The original owner must have intended to abandon it in the first place.
The most plausible view was that occupation of abandoned res mancipi sufficed to give dominium immediately without the need for a period of prescription.

Question 19

What were the rules governing the ownership of animals such as bees through occupatio?

Answer 19

whereas wild animals were not.

• In order to become owner, simply wounding an animal would not suffice, must have ‘restrained control’ of the animals. Ownership remained so long as the owner had effective control of the animal.
• WILD Animals with the habit of returning ceased to be owned only when they abandoned the habit of returning whereas animals without this habit ceased to be owner when they simply left the owners custody (escapes our sight or is still in sight but pursuit would be difficult).
• He therefore was not responsible for any damage incurred by the wild animal once it had left his custody,
• Bees were singled out, as needing to be in hives, in order to have effective control of them. Non-hived bees are not anyones possession.

Question 20

What is avulsio and alluvio? (rivers)

Answer 20

Avulsio- Occurred when an identifiable piece of land was carried by the force of the river current and was deposited against the land of another. HOWEVER if trees were to enforce their roots onto the land, it becomes the property of he who owns the trees, therefore becoming part of the new acquirers land. The movement of land was not attributable to anyone and therefore no one could be blamed.

Alluvio- the gradual growth of someones land via the deposit of the land of another, through the river and its force.
“furthermore, when the river adds to our land by alluvion becomes ours by the law of nations. Addition by alluvion is which is gradually added so that we cannot, at any given time, discern what Is added.” Gaius.-Alluvio applied only to rivers

Question 21

what other river related modes of acquisition was there alongside alluvio and avulsio?

Answer 21

• An island arising in a river is shared by the riparian owners on each river-bank, unless it lay wholly to one side.
• if a river-bed dried up, the old riverbed was shared by the riparian owners up to the middle of the river bed. If a land-owners land became an island in the middle of a river, it remained the original owners.
• THERE WAS NO COMPENSATION AVAILABLE WHEN ONE LOST THEIR LAND BY FLOODING OR ALLUVIO as it was a natural phenomenon for which no one could be blamed.

Question 22

What is accessio??

Answer 22

MERGER

• The inseparable attachment of things belonging to different owners, with the incorporated property being the accessory to the ‘principal’ property. The general rule was that the owner of the principal thing was the owner of the whole thing, including that which was incorporated into the principal thing.
• The owner of the principal thing became the owner of the whole thing, regardless of Bona fide of other parties. These things were only relevant to accessio if they were not readily separable. Things were not readily separable either by law eg buildings and land, or by fact ie if undue effort, skill or cost was required to separate them, or if it would damage the property.
• Where there was bad faith accessio or merger, an action for theft lay against the owner for attaching the thing, but as it was usually not separable, there was no successful vindicatio, just a penal action of actio furti in favour of the victim of theft.

Question 23

How did accessio affecting land work?

Answer 23

• Things sowed into the land or buildings built on land acceded to the land
• Land was therefore always the principle, buildings or plants were accessories.
• If the land owner had something built on his land in good faith, he owned the building but the builder owned the materials and could reclaim them when the building came down
• If the builder had built on another’s land in bad faith, he was taken to have gifted his materials and labour to the land owner
• If A sowed Bs property in bad faith, he was liable for theft and should pay the value of the seeds then they had taken root

Question 24

How did accessio affecting movables eg paintings or scripts work? what was the position regarding a) principals and accessories, and B) whether compensation was owed?

The same ideas of compensation equally apply to specificatio.

Answer 24

a) principal or accessory
- Most widely applied test was focused on the physical identity of the constituent elements. That thing was principal which most retained its identity ie which gave the resultant mix or attachments its essence, name or overall character.
- An example is painting, where the canvas acceded to the paint even if it was bigger or more valuable, as a painter was always said to own his painting, even if not the canvas which it was on. (PICTURA)
- With regards to writing however, the writing was held to accede to the parchment, and therefore even if it was more valuable eg written in gold leaf, the parchment was the principal and the ink the accessory. (SCRIPTURA)

B) Compensation; Principal + good faith + possession= no compensation UNTIL LATE EMPIRE

• If the owner of the principal thing had attached the accessories and acted in bad faith, he was liable for theft but was nevertheless the owner. If he had acted in good faith and was in possession of the property, he was not liable for compensation until the late empire. If he was not in possession, he could claim ownership via Vindicatio by paying for the value of the accessory thing. If he refused to pay his Vindicatio would be defeated by the other parties exception Doli (defence of fraud) on the grounds that it would be fraudulent to the accessory owner to lose his accessory without compensation.
• If the owner of the accessory was responsible for the attachment and had acted with full knowledge of the facts, he was deemed to have made a gift of the accessory. Where he had acted in good faith, he had no remedy if he was out of possession, if in possession, he was entitled compensation when the owner of the principal used asserted vindicatio against the possessor.

Question 25

What is confusio with examples from Justinian?

Answer 25

-Confusio occurred when the things which were mixed were NOT READILY SEPARATED and it was not possible to tell what was principal and what was accessory. The resulting mix was owned in common in proportion to the value of the parties respective shares.
-If the mixture was not mixed with mutual consent, a claim lay against the possessor by the non-possessor for the value of his share of the mixture.
Examples include:

Question 26

What is commixtio with examples from Justinian?

Answer 26

-Commixtio- where solid things belonging to a number of owners were mixed BUT WERE READILY SEPARATED. If this was done by agreement, the resultant thing became common property. If not, the things would be separated, and each part returned to their owner, or the proportion owned by each party returned. (no ownership change). The remedy for this was actio ad exhibendum or Vindicatio when necessary, when one person had possession over the resultant mixture of materials.

Question 27

What was specificatio and what other mode of acquisition was it similar to?

Answer 27

• A way of acquiring ownership by the creation of a new thing (novus species) out of someone elses things. Specificatio and accessio appeared to be somewhat similar.
• Proculian thought: The proculians saw specificatio as a special type of occupatio, in that it became a new thing with no owner (a res nullius) and therefore open to the first occupier (the creator). This was somewhat flawed, as something which was owned on account of its creation could hardly said to be res nullius.

Question 28

What was the disagreement between Sabinians and Proculians over specificatio and what was the intermediate view which emerged by the time of Justinian?

Answer 28

Sabians held that he who owned the materials should be the owner of the new item whereas Proculians held that he who created the new thing should be owner.

-THE INTERMEDIATE VIEW: said that if the new property could be broken down into its constituent elements, it was his whos the constituent elements belonged to, whereas if it could not eg wine could not be returned to grapes, it was he who created the wine. This depended on how feasible it was to reduce back to the started materials.

Question 29

Who was the owner of something made from the materials of two people?

Answer 29

He who created the new item, for he gave his labour and contributed to the building of the new thing.

Question 30

What two ways could someone acquire ownership of fruits?

Answer 30

Severance and gathering

Question 31

What was severance in the acquisition of fruits and how did it work? What late empire rule was created regarding a bona fide possessor recognising the fact he was not actually bona fide?

Answer 31

Bona Fide possessor: the entitlement of the bona fide possessor was based on the fact that he usually appeared to the outside world as though he was the owner, and he would’ve produced the fruits through his own labour.
Paul: “a purchaser in good faith undoubtedly acquires ownership for the time being by gathering fruits, even those of someone elses property. Even before he gathers them the fruits belong to the purchaser in good faith as soon as they are servered from the soil”
-If the bona fide possessor discovered he was not the owner of the property, he was no longer entitled to the fruits.
-A rule created in the late empire was problematic. A Bona fide possessor had to account for any fruits when the dominus legally recovered the fruit-bearing property. IN such a case ownership of the fruits was complete only when the fruits no longer existed ie had been consumed. The point was to compensate the dominus as much as possible, but meant that the Bona fide possessor could lose fruits he had spent time and effort collecting, which hadn’t yet consumed.

Question 32

What was gathering in the acquisitions of fruits?

What was colonus and Usufructuary?

Answer 32

: The acquirer had to physically collect or gather fruits to acquire ownership. This could be done by a slave on their behalf. Chief cases of acquisition of fruits by gathering were colonus and usufructuary.
A) Colonus: an agricultural tenant hiring land from the owner, to produce his own fruit, allowing tenant to own his acquired fruit from the owners land subject to on-going consent. Often paid with a proportion of the fruits which he produced.
- If consent was withdrawn, he risked theft. Revocation of consent did not operate retrospectively. The acquirer could only sue for breach of contract if permission was revoked.

B) Usufructuary: The usufructuary had the right of fruits which was not dependant on continued permission by the owner. The usufructuary and colonus lacked possession of the property which they held, so some act of appropriation was needed, but this was not the case with the Bona fide possessor since he had possession. The distinction that when an apple falls from a tree it becomes owned by the bona fide possessor but not by usufructuary is not easy to justify.

Question 33

How did treasure work in terms of bona fide and non bona fide finders and land owners?

Answer 33

• Mid second century AD- the finder was entitled to the treasure if he found it on his own land, or if he accidently found it on sacred or religious ground.
• If found by chance on someone elses land, the treasure was shared between finder and landowner, but if found as a result of a deliberate search, the finder got nothing.
• in the former case the finders share relied on the principle of occupatio, he was the first acquirer of a res nullius

Question 34

What did Paul say about treasure?

Answer 34

-Money interpreted in a wide sense, to include other valuables. There must have been a deposit ie it has been secreted in land. Things lost or dropped did not constitute treasure, nor abandoned things. The owner must not be traceable

Question 35

In the republic, who owned treasure found on another persons land?

Answer 35

-In the republic it appeared that the finder had no rights unless he was the land-owner, as it belonged to him via the process of accessio. Didn’t matter that landowner was unaware of the treasure. In the early empire treasure was held to belong to the imperial treasury.

Question 36

How important was consensus in usucapio?

Answer 36

• The nature of usucapio meant that the prospective owner was unable to trace or was unaware of there being another owner (he may be bona fide possessor), and therefore the importance of consensus is greatly reduced.
• Therefore there was no transfer of ownership from transferor to transferee, because the transferee did not hold an agreement with the dominus; it may have been a good faith seller who did not hold title, and therefore the buyer had to wait one year for usucapio, including good faith on account of acquiring possession and uninterrupted use over the year.
• Usucapio important in acquiring ownership but not TRANSFER of ownership, as is occupatio.
• IT WAS NOT A DERIVATIVE MODE OF ACQUISITION

Question 37

What limitations might there be on consensus being important in mancipatio and in iure cessio?

Answer 37

-Provided a procedurally accurate method was undertaken, factors such as fraud or duress would not vitiate the transfer of ownership, and therefore the apparent consensus in the ceremony could be manipulated by these external factors, with no redress available to the aggrieved party

Question 38

What actions were available in a specificatio/accessio case?

Good faith and bad faith

Answer 38

• Where A, in good faith, has used another persons property to make something of a new substance and identity, he is owner, but B has no claim to it. His good faith will preclude the vindicatio being brought, as A has given his time and labour.
• When A had created the new thing out of Bs material in bad faith, he becomes owner, but he is a thief, and the relevant penal actions for theft are applicable, which will result in a non-manifest theft actio for double the value of the thing, and possibly compensation as a condictio; reipersecutory actions available in theft eg condictio or vindicatio alongside the penal actions for theft.

Question 39

What is the position when there is a commixtio eg of corn? Who is the owner when done so in good faith and bad faith/ accident?

Answer 39

• When there is good faith, the corn is owned in proportion to the ownership of the mixed goods, for each grain of corn is still distinct despite being negligible in reality
• When there is a bad faith commixtio, the non-possessor has an action for the specific recovery of his proportion of the corn

Question 40

What action is available where I bona fide build on my land with anothers material?

Answer 40

-Actio ad exhibendum- the builder pays double the value of the materials to prevent the materials having to be pulled down, as this would cause great inconvenience otherwise.

Question 41

What is the difference between wild animals and animals tame by nature as to their acquisition?

Answer 41

-Only wild animals can become res nullius where they escape the custody/ possession of their owner, whereas animals tame by nature eg sheep or horses only become res nullius on account of an intention to abandon, and therefore capable of occupatio

Question 42

What is imperative for a successful occupatio?

What is the rules of occupatio for different types of animals? eg wild or tame by nature

Answer 42

• An intention to abandon the property and allow it to become res nullius- where there is no intention to abandon, and the property is not wild by nature, then there is no abandonment. Horses, sheep etc are not therefore abandoned on account of the owner failing to keep them under control constantly, they would only cease to be owned on account of an intention to abandon
• Therefore whether the occupier is in good faith or bad faith, ownership has not passed and they lack title- they are either bona fide possessor or a thief.

Question 43

Whats the difference between scriptura and pictura?

Answer 43

• Scriptura- ink is accessory to the parchment, even if worth more as incorporated with gold
• Pictura- canvas is accessory to principal which is the pain, as it is the paint which gives it its overall character.

Question 44

Whats the difference between specification and confusio?

Answer 44

Confusio is a mixture of two of the same things eg two peoples corn

Specificatio is a mixture of two things of different making a new compound with different characteristics and attributes.

Question 45

Who is the owner of fruits where A is the bona fide possessor after purchasing from B, but B was a thief, who has stolen from C?

Answer 45

• A is the bona fide possessor of the fruit bearing property and collects/ offers care and culture to the fruit, giving him ownership of the fruits for as long as he retains his status as BFP.
• Upon discovering that he is not actually owner, he ceases to own any subsequent fruits, and should account for any fruits that are still in existence when C brings his vindicatio, even though A thought such fruits were his and offered his care and culture for their cultivation.