Week 3

Question 1

Original acquisition of ownership

Answer 1

• it is possible that a person may acquire ownership of a thing without deriving title from any previous owner. We call this sort of acquisition original. This is because it is not derived from someone else.

Question 2

Original acquisition: occupatio

Answer 2

• There are two main cases in which a thing could have been unowned in roman law:
  First, it might have never been owned - like a wild animal.
  Second, it might once have been owned and then abandoned by the owner. Abandoned property became ownerless in Roman law, and abandonment occurred when the owner intended to be rid of the property
• Suppose someone is hunting a wild rabbit. In this example the rabbit is a res nullius – it is in its natural state and it is unowned by anyone else.
• Now suppose I capture the rabbit and take possession of it. corpore and animo: possession required in law a degree of physical control, and also an intention to possess on the part of the person exerting physical control.
• If I take possession of an unowned thing in this way, then I acquire ownership of it. The law looks at the factual state of my possession of an ownerless thing, and deems that I am now owner. My title is then original, because it is not derived from any previous owner.
• if I come to possess a wild animal on someone else’s land, do I still become the owner by occupatio even though the land owned by someone else? The answer is yes – the ownership of the land is not relevant to the concept of Occupatio in respect of wild animals – it doesn’t matter, in strict terms, where the wild animal was when it was taken possession of.

Question 3

Original acquisition: accessio

Answer 3

• Accessio occurs when an “accessory” thing becomes attached to a “principal” thing
• the accessory “acedes” to the principal;, and the owner of the principal becomes the owner of the accessory.
• For example, A builds a house on B’s land. Land is always the principal
  Consider also here plants and crops. Land again is always the principal.
  -Moveable property may accede to moveable property
• “if the identity of one thing (the accessory) is merged and lost in the identity of another (the principal) the owner of the principal is owner of the whole. In the example of the cup and the handle, the owner of the cup is the owner of the cup with handle.”
• Note that the attachment must be – within reason – inseparable for accession to take place.

Question 4

Original Acquisition: Mixture and Confusion

Answer 4

• two things are merged or conjoined in such a way that it is impossible to say that identity has been lost.
• In this case, the merger may be inseparable or separable. The classic example is when two flocks of sheep, or two large amounts of grain get mixed together accidentally. The Romans called this type of merger mixture.
• No loss of identity; merger is such that things merged could be separated again and restored to their original unmixed state
• confusion is when there is a merger of things that are inseparable - or practically inseparable

Question 5

Original Acquisition: Speicifiatio

Answer 5

• the merger of two things results in both losing their identity, and in the creation of a completely new thing, that cannot be reduced to its constituent parts
• a new thing results from the merger
• The Romans said that if the thing could be reduced to its constituent parts, then those constituent parts would be returned to the original owners. But if the thing could not be reduced to its constituent parts, then the maker owns the new thing.

Question 6

Original Acquisition: Fruits

Answer 6

• The fruit of a thing - like an apple from a tree or a lamb from a sheep - belongs to the owner of the thing in question
• The law says that the good faith possessor becomes owner of the fruits on separation (i.e. harvesting). Once the truth about the ownership of the land becomes known, the law says that the good faith possessor must account to the owner for any unconsumed fruits he or she has gathered. But the good faith possessor does not have to account for any fruits he or she has actually consumed - and selling separated fruits was held by the law to count as consumption of the fruits.

Question 7

Original Acquisition: Treasure Trove

Answer 7

• treasure “consists of valuables which have been hidden for so long that their owner can no longer be discovered”
• In ancient Rome, if a person found treasure on his or her land, he or she could keep it. If a person found treasure, accidentally on land owned by another, then the finder could keep half of it, and the owner of the land could keep half.

Question 8

Original Acquisition: Usucapio/Prescription

Answer 8

• one can become an owner of a thing after possessing it for a period of time.
  five conditions attached to this in Roman law:
• it was necessary to have uninterrupted possession of the thing for the period laid down by law - sometimes called the “prescriptive” period. In justinian’s time, this was three years for moveables and ten years for land where the parties lived in the same province, and twenty years for land where theory did not
• the possession had to have been acquired in good faith
• the possession had to have been acquired on the basis of a iusta causa traditionals. In other words, the thing had to have been acquired on a basis normally sufficient to transfer ownership - such as sale, a gift or through succession.
• the thing possessed had to be capable of being owned. Free persons, for example, were not capable of being owned. Neither were certain res such as pagan temples and christian churches (res sacrae), or city walls and gates (res sanctae)
• a thing could only be acquired by usucapio if it had not originally been taken from its owner by force or in circumstances amounting to theft.