Week 2- Property (taxonomy and the acquisition of things) Flashcards
How does Gaius divide things into two classes and how does this impact on these things?
‘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.
What is the difference Gaius and Justinian makes between public and private things, and then corporeal things and incorporeal things?
“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.
Whats the difference between rights in rem and rights in personam?
What is res?
- 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.
How does a right in rem come about and how does a right in personam come about?
- 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.
What are Res mobiles and Res immobiles with examples?
What are Res Mancini and res nec mancipi with examples?
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.
What are the derivative forms of acquisition and the original forms of acquisition and why do they have such names?
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.
What happened in mancipatio, what things were capable of being emancipated, and what factors didn’t impede on its legitimacy?
-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.
How did mancipatio change overtime before being abolished by Justinians time?
-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.
What was in Iure Cessio and why was different and less problematic than mancipatio?
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.
What was Traditio and what were the two basic essentials of traditio?
- 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.
What were the 4 types of delivery, including one which developed towards the late empire which was of great practical importance?
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.
What was a Iusta Causa and was mistaken Iusta causa important in traditio?
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.
What is Usucapio and what things does Gaius say can be acquired by Usucapio (subject to how many years?)
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.
What were the requirements of a successful usucapio (Gaius)?
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.
What was Longi temporis Praescriptio? (provincial land not capable of Usucapio)
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.
How did Usucapio change under Justinian?
Justinian extended the periods to three years for movables and 10 years for land.
What was occupatio and what were res nullius?
- 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
What things were capable of occupatio?
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.
What were the rules governing the ownership of animals such as bees through occupatio?
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.
What is avulsio and alluvio? (rivers)
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
what other river related modes of acquisition was there alongside alluvio and avulsio?
- 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.
What is accessio??
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.
How did accessio affecting land work?
- 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
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.
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.
