Week 3- Property 2 (taxonomy and remedies)

Question 1

What does ‘absolute’ ownership seem to entail and what obvious ways was it restricted for romans?

Answer 1

• Unfettered freedom to use and enjoy property however you want.
• Clearly people couldn’t use their property without restriction ie someone couldn’t use their sword to attack whoever they want; there had to be laws governing the otherwise unrestricted enjoyment and use of property, especially where it impeded on the personal and proprietary rights of after people.

Question 2

How does Borkowski define absolute ownership in two different ways?

Answer 2

• Ownership somewhat defined as ‘the ultimate residual right in a thing, the right which will remain when all others have expired.
• Another way in which ownership might be absolute is in title, it is the only right of its kind, and isn’t relative to the rights of other parties to the property; there is only one person with dominium.

Question 3

What was Ulpians claim about ownership and possession and how does H Scott dispute it?

Answer 3

“Ownership and possession have nothing in common”
-Can’t overlook the fact that whilst possession was a matter of fact and ownership was a matter of legal relationship between person and thing, ownership could eventually be passed via possession.
-

Question 4

What examples does H Scott give as to ownership and possession being more closely linked than at first appears?

Answer 4

• “Roman dominium was not in truth independent of factual holding of the thing owned; rather, possession and ownership were in practice in close alignment, especially in the case of movables. One became entitled to something largely by acquiring legitimate possession of it, at least relative to other parties of whom the property falls into the possession of.
• For those with dominium, Possessory interdicts were often easier to assert ownership than a vindicatio because only a relative claim was required under the possessors interdict than being able to assert true ownership under the vindicatio. The possessory interdict would award the property to whoever owned the moveable for the best part of the last year (or immediate possessor for land)

Question 5

What is the formula for vindicatio?

Answer 5

‘Let Titius be judge [iudex]. If it appears that the cow Buttercup, the subject of this action, belongs to Aulus Agerius [claimant] by Quiritary right and that cow is not in accordance with your discretion restored to Aulus Agerius, for as much money as the cow shall be worth for so much condemn Numerius Negidius [defendant] to pay Aulus Agerius. If it does not appear, absolve.’

Question 6

What is condictio and what was the formula?

Answer 6

A condictio was a right in personam against a person to acquire money for the value.

Let Titius be judge. If it appears that Numerius Negidius ought to pay 10 000 sesterces to Aulus Agerius, let the judge condemn Numerius Negidius to pay 10 000 sesterces to Aulus Agerius. It if does not so appear, absolve.

Question 7

What is the difference between an action in personam (condictio) and an action in rem (vindicatio)

Answer 7

Vindicatio is an action in rem whilst Condictio is an action in personam. Therefore an action in rem is one against the claim of a thing, governed by the law of property, and the relative title of the owner, whilst an action in personam is against an individual whom has a contractual obligation to act. The second is an obligation held by the plaintiff against the defendant whereas the former is a way of asserting ownership. If possession cannot be returned to the owner, there is to be a compensatory measure in place. These claims are rather what he owns (rights in Rem) or what he’s owed (rights in personam).

Question 8

What is the difference between absolute and relative ownership as per Birks?

Answer 8

Absolute versus relative ownership: for ownership to be absolute, that is to say that there exists only one owner of property, whereas for ownership to be relative, there may exist one true owner but those underneath this true owner, who might possess the property (bona fide) will have relative claims to the property, relative to their prior possession of the ownership, their mode of acquisition and any bad faith transfers of property eg theft. Ownership might be absolute in the sense that there is unrestricted enjoyment of the property, and this is unfettered. It may also be absolute in the sense that true ownership connotes an air of exclusivity (as per Birks).
-Bonitary owner versus dominus would be an example of this

Question 9

Which jurist talks about actio publicana and when was it introduced (and by who)
What was the reason for this action?

Answer 9

Gaius- Praetorian edict in 67 BC

-Actio publicana was an action created in order to protect those who who were on their way to acquiring ownership by usucapio but lack legal title as the prescribed period had not elapsed.

Question 10

What two categories of people were protected by the actio publicana and what was the different between the groups?

Answer 10

Bonitary owner- the owner who had acquired ownership from a true owner but through an inappropriate mode of conveyance eg mancipatio of a res nec mancipi

Bona fide possessor- the BF possessor had acquired the property in good faith but from someone who unknowingly lacked title of the property.

In both cases possession rather than ownership was passed, but this could materialise to ownership through usucapio.

Question 11

Who had the better protection by the actio publicana and why?

Answer 11

The Bonitary owner had the better protection than the BF owner because BO was protected from the dominus and the third party, whilst the BF owner was only protected from the third party to whom he lost possession to.

Question 12

How was the Bonitary owner protected by the actio publicana?

What 2 actions could the dominus bring against the BO and how would the BO counter this?

Answer 12

• The third party would be defeated when the bonitary owner brought an action of actio Publicana to retrieve his property. The bonitary owner would allege in his formula a fiction ie that the requisite time had elapsed for Usucapio, providing he could satisfy the other factors of usucapio (ie good faith), his claim would succeed.
• Unlike the Bona Fide possessor, the bonitary owner could take action against the dominium if the property fell back into his possession; The B.O’s Actio Publicana could be countered by the dominium with exceptio Iusti Dominii but BO would bring replicatio rei venditae et traditae.
• If the dominus attempted to use a vindicatio against the BO, BO could use the defence of exceptio rei venditae et traditae.

Question 13

How did the actio publicana protect the bona fide possessor and how what defence would the dominus use to protect himself against the bona fide possessor?

Answer 13

• The Actio Publicana was also available to the bona fide possessor but was only effective against third parties. He could get his property back if it falls into the hands of C through use of the Actio Publicana.
• The actio publicana would fail against the dominus when the true owner was in possession (plaintiff)
• The Dominus would succeed against the bona fide possessor via vindicatio, if the Bona fide possessor was in possession, as the dominus would assert his ownership and the property should be returned.
• The judge must also claim that the thing would’ve belonged to the prospective owner had the required time elapsed.
• The defence of the dominus against the Bona Fide possessors actio publicana was known as exceptio Iusti Domini, and this will allow the dominus to keep his actual property, as he was the true owner

Question 14

Why might a prospective owner bring the actio publicana rather than a vindicatio?

Answer 14

-The reason why a prospective owner might bring a Actio Publicana rather than a Vindicatio is because he may be unsure of his true ownership, and the Vindicatio would not succeed if he could not prove his true ownership, whereas actio Publicana means that he only had to prove some relative ownership and Iusta Causa to assert his claim. It would then fall on the defendant to assert that he had true ownership. The Bona Fide possessor however may be unaware that there is any fault in his title, because he acquired it in good faith from someone who claimed to hold title but did not in fact do so.

Question 15

What does Paul say about the elements of possession?

Answer 15

“now we take possession physically and mentally, not mentally alone or physically alone”. Paul edict book 54.

Question 16

What are the two elements of possession and how are they explained?

Answer 16

Corpus:
-If possession was only possible through physical control then it wasn’t possible to have possession of incorporeal things eg a servitude. An extended understanding of physical control included land, where the boundaries of land was indicated to the prospective possessor, or where a thing was placed in the sight of the prospective possessor.

Animus:
-Not obvious from classical texts but is regarded as the mental element of possession, an intention to hold property as one’s own. It may also have meant the consciousness of being in physical control, someone could not be possessor if they lacked awareness of the property in question.
Paul Sabinus book 15 “A person possessing a building as a whole is not deemed to possess the individual things in the building. The same applies to a ship and to a cupboard”
-In late law it may have been possible to transfer possession through mere intention or agreement alone, but most would argue that both corpus and animus were required.

Question 17

How could possession be acquired via a proxy eg a slave, with regards to the two elements of possession?

Answer 17

Possession could be acquired via a proxy, where the proxy possessor had to take the property with corpus and animus whilst the ultimate possessor had to have animus. The complication arised when slaves were the proxy, they were regarded to be unable to have animus but it came practical to allow it for when they were taking possession on behalf of their owner.
-The eventual possessor could show his animus via prior authorisation of the acquisition or subsequent knowledge of it.

Question 18

What categories of people could be considered to have possession?

Answer 18

• Anyone entitled to a possessor interdict was regarded as having possession. This included physical owners as prospective owners (usucapio) or those acting as if they were owners. It did not matter if they were in good or bad faith, and therefore a thief could be a possessor, but not an owner.
• Other categories included a derivative possessor eg a middle man who possessed the property whilst a dispute was resolved between two parties. There were also derivative holders who were deemed to have custody rather than possession of property eg borrowers, hirers who had contractual rights to property but not possession. Complex is illustrated by the Usufructuary, where he had the right to use and enjoy the property, and even ownership of the fruits, he did not have possession of the usufruct, increasingly confusing when often people had usufruct for life. (usufruct regarded as incorporeal which is why it couldn’t be possessed)

Question 19

Which of the two elements appears to be the major Constituent in possession and why?

Answer 19

• If both elements are required for possession, then the loss of one element should render possession lost. But the second text suggests that it could be obtained with only the loss of one of the two elements, in exceptional circumstances. But this cannot be authoritative as possession can be lost when property is stolen or simply lost ie no physical control remains. Animus therefore appears to be the major constituent of possession. A slave owner who had lost his slaves (they had escaped) was still likely entitled to be in possession, as he retained possession through animus alone.

Question 20

What possessory interdict existed for acquiring possession of an estate under Praetorian rule or inheritance?

Answer 20

-A) Acquiring possession: seeking possession not previously possessed. Main example was Quorum Bonorum which lay in favour of a person who was allowed possession of an estate, or part of it, under the praetorian rule on inheritance.

Question 21

what was the appropriate possessor interdict for keeping possession of land and of movables, and how was it decided who the land would go to?

Answer 21

Retaining possession: Appropriate interdict for land was Uti Possidetis whilst for movables it was Utrubi. In Both cases the possessor succeeded provided he had not become possessor as from the other party as a result of force, stealth, or permission had been given to the new occupier to take possession. Such interdicts were to resolve disputes between the two parties, not third parties who may be capable of defeating either party.
- For land it was normally awarded to the actual possessor but for movables it was often given to he who possessed for the longer period over the last year

Question 22

What were the possessory interdicts of Unde Vi and De Vi Armata for?

Answer 22

• Unde Vi ordered restoration of land to one who had been evicted by force, provided his possession had not been acquired by the other party by force, steal or permission. Had to be sought within a year and person evicted entitled to be restored possession before eviction.
• De Vi Armata allowed recovery of possession with no time limit of a year, and even if the evicted person had previously held the land against the evictor by force, stealth or permission. ONLY APPLIED IF ARMED FORCE WAS USED, primarily designed for protection against gang violence

Question 23

what 3 criteria need to be met to use any of the possessor interdicts?

Answer 23

A lack of force, stealth or permission.

Question 24

What is a servitude?

What two categories of servitudes existed and what are the main examples of each?

Answer 24

-A servitude was a proprietary right involving the use, such as a right of way, of the property of another person. It was an incorporeal thing but could only exist as attached to a corporeal thing. It was impossible to have a servitude over a servitude.

Praedial servitudes (Urban or Rustic): iter, via, actus, aquaeductus

Personal servitudes= usufruct, use, habitatio, services of animals and slaves

Question 25

What were the general principles of servitudes?

Answer 25

1) It had to be a servitude in someone else’s property (if someone had a servitude over someone else’s property then gained ownership, it ceased to exist)
2) -Since servitudes were incorporeal things, they could not be possessed. They could be enjoyed and were protected by interdicts (modified possessory interdicts). They were as beneficial as if they had been possessed.
3) - Servitudes had to benefit the persons entitled to them; a servitude created to purely upset or annoy the servient owner was of no effect, could also be created for economic purpose.
4) Since servitudes exercised a serious restriction on the servient owner, the beneficiary had to exercise his right in a reasonable manner.
5) Servitudes could not impose active duties ie the servient owner did not have to do anything, if A had a right to walk over Bs land, B had to refrain from interfering with that right.

Question 26

What was a Praedial servitude and what was the difference between a rustic and urban servitude?

Answer 26

• Praedial servitudes were the rights that a person had by virtue of ownership of land (the dominant tenement) over the land of another (the servient tenement). Such rights attached to the land, not the person. The beneficiary was the dominant tenement.
• The successors in title of the servient and dominant owners were affected because praedial servitudes were regarded as perpetual ie they could not be limited by time (but could terminate in other ways)
• Since a praedial servitude involved the burdening of one tenement for the benefit of another, it followed that the tenements had to be close together, but not necessarily adjoining.
• They were classified as either urban or rustic; if it was concerned with the use of the building it was urban, but the use of the land made it rustic. Some (maybe all) rustic servitudes were Res Mancipi (capable of mancipatio) whereas urban servitudes were not.

Question 27

What were the main Urban Praedial servitudes?

Altius Tollendi

Answer 27

-Urban Praedial servitudes: The right to build higher than neighbours building (Altius tollendi), as well as the right to obstruct the neighbours light, insert beams into a neighbours wall, roof or structuring project. The texts often refer to servitudes in the alternative eg the right to build higher (Altius tollendi) ‘or the right to prevent such building’.

Question 28

What were the 4 main Rustic Praedial servitudes?

Answer 28

• Rustic Praedial servitudes: Include iter, actus, acque ductus, via and they predate the XII tables. All four were res mancipi and were concerned with the use of land for a specific purpose.
• Iter= the right to the right to walk across but not with beast or vehicle, Actus= the right of way with vehicle or beast of burden. Via= gives the right of passing, whether driving or walking, for both “iter” and “actus” are included in this right of way. Aquae ductus= the right to channel water over anothers land.
• For aquaeductus, the dominant tenement had the right to partially change the flow of water towards his own land, so long as he doesn’t make the watercourse less advantageous to the servient tenement.

Question 29

What were personal servitudes and how did they differ to Praedial servitudes?

Answer 29

• 4 personal servitudes, with usufruct being the most important. Personal servitudes attached to a person rather than to land (Praedial servitudes) and could be created over movables as well as land,
• They were not perpetual ie they were subject to limited time and therefore could be terminated by expiry of term.
• As they were attached to a person, they also ended upon death.

Question 30

What were the general principles of usufruct?

Answer 30

• The general position of the usufructuary: The right to another’s property without impairing its substance, and to take its fruits. Despite the duty to preserve the property, it was considered a valuable right.
• The usufructuary lacked possession but had the right of use of the property and to take its fruits for the period agreed by the servient tenement. Often life period granted to the usufructuary but not always. It could not last beyond the life of the usufructuary.
• If the property was substantially impaired then the usufruct had ended, even if the prescribed time had not elapsed.

Question 31

What was the position with regards to the use of usufructuary and the ownership of subsequent fruits?

Answer 31

: must maintain the properties condition throughout the period of usufruct eg buildings kept in a good way. The dominant tenement could not use the property in an unauthorised way, nor alter or even improve it. The use of the property depended on what the property was ie land or building. If the usufruct was over a flock or herd of animals, there was a duty to maintain numbers.

• The standard of care expected was that of bonus paterfamilias connoting a very high level of care, he would be liable for any deterioration or negligence.
• The usufructuary was entitled to let or sell the enjoyment of the usufruct, but he could not transfer the usufruct title himself.
• Fruits: regarded as the most important part to the beneficiary, he could take and own the fruits. Civil fruits were those which included income from hiring out the usufruct property eg rent from land. Natural fruits comprised of the ordinary natural produce of land. Minerals were not regarded as fruits unless the land was used for quarrying or the production of minerals.
• Juristic interpretation led to the creation of the rule that new mines could be opened provided they did not alter the character of the land

Question 32

What was a Quasi usufruct and what mode of enacting legislation fixed the problem relating to Quasi usufruct?

Answer 32

• Quasi-Usufruct: Usufruct had to be over something corporeal and something that could not be consumed throughout use in order to restore it in the same condition as before. Therefore couldn’t have usufruct over perishables like money.
• A senatusconsultum was created to fix such a problem, with the donee becoming the owner of the property, with a duty to restore the equivalent value on termination of the usufruct. This reform (which applied only to usufructs made by will) enabled a more flexible settlement to be made on family members.

Question 33

What were the personal servitudes of usus, services of slaves and animals and Habitatio?

Answer 33

-Usus: Grew out of usufructus and gave someone the right to use but not the right to keep fruits. Such rules were eventually relaxed to allow the usus to keep as much fruits as was necessary to maintain his household.
- Unlike the usufruct, he could not sell or rent the enjoyment of property, or allow anyone else to occupy in his place, but could take in paying guests and lodgers, and keep proceeds.
- Services of slaves and animals: special form of usus and could only be created by will.
Habitatio:
- The right to occupy a house for life, could only be created by will. They could let out the house.

Question 34

in what ways could Praedial servitudes be created?

Answer 34

• Mancipatio,
• Cessio,
• Decuctio (pass ownership but kept servitude for himself), Adiudicatio (if on conveyance of land a judge ruled a servitude between land was necessary),
• Pact and stipulation (pact consisted of agreement between parties, breach of which resulted in the payment of a penalty fixed by the stipulation)
• Usucapio

Question 35

What was the main way in which personal servitudes were created and which two personal servitudes could be created via the same methods as Praedial servitudes?

Answer 35

Grant through legacy was the main method of creation ie only method of habitation and service of slaves and animals. Usufruct and usus could be created through the same methods as Praedial servitudes

Question 36

What two remedies existed for protecting servitudes?

Answer 36

Chief remedy was actio confessoria, a modified form of the vindicatio. As for the servient owner, he could bring the actio negatoria if he specifically wished to disapprove of an existing servitude (unusual as required claimant to prove a negative). Both allowed for recovery via financial loss.
- Praetorian interdicts also protected people enjoying use of the servitude, they didn’t settle matters of title but simply protected the person exercising the servitude.

Question 37

What 5 ways could Praedial servitudes be terminated?

Answer 37

• 1)destruction: where either dominant or servient tenement was destroyed, the latter underwent substantial change, or the subject matter ceased to exist.
• 2)non-use: lost if not exercised for two years. In the case of rustic servitudes, non-use sufficed, but for urban servitudes, the time ran from when the servient tenement acted as if he disregarded its existence. The reason for distinction was that non-rustic servitudes would be obvious since they were ‘positive’ in nature eg pasturing on someones land whereas urban servitudes were generally negative ie how do you prove non-use on the right not to have light obstructed? Justinian extended the period to 10 years if both parties resided in the same province, 20 years if not.
• 3)Merger ie where dominant and servient tenements were acquired by the same owner.
• 4) Cessio- lost if formally ceded by the dominant tenement
• 5)Abandonment: the abandonment of the dominant tenement did not in itself terminate a servitude in its favour, although it could constitute non-use. If the servient tenement abandoned the property, in principle the property remained burdened even though there as no one against whom the servitude could be enforced.

Question 38

What ways could personal servitudes end (different to praedial servitudes)?

Answer 38

• A) death: since personal servitudes attached to a person and not property, it followed that it ended from death of the holder eg usufruct ended by death
• B) expiry to term- apart from habitatio, personal servitudes could be granted for a period less than the life of the holder, expiry ended the servitude.
• C) Loss of status: ended all personal servitudes, no matter the degree
• D) merger, cessio, destruction or fundamental change also ended personal servitude, subject to the possibility of restoration. Usufruct and Usus could be ended through non-use, two years for land, one year for movables. Justinian extended this to 3 years for movables and 10 or 20 years for land, depending on where the parties resided.

Question 39

In what orders are possessory interdicts and actions undertaken by different parties and give an example of this?

Answer 39

Possessory interdicts come first, and then an action.

• A bring a possessory interdict of Utrubi to retain the cow which had been stolen back by B, as he had possessed the cow for the longer part of the last year, but B had ownership of the cow (natural or derivative).
• B then brings an action of vindicatio to assert his dominium of the cow.

Question 40

Whats the difference between a good faith and a bad faith possessor?

Answer 40

-If A thinks he is receiving ownership, and a valid conveyance is used (but the seller did not in fact have title), he is the bona fide possessor who has a better claim than a third party (whom the possession might fall into) but is worse of than the dominium who can assert his ownership

• If B knows that something is stolen, he is in bad faith when he possesses it, B cannot trace his ownership and has no claim if it falls into the hands of a third party or the dominium uses a vindicatio. The fact that the stolen property has fallen into another hand doesn’t allow A to make a claim as he knowingly had no mode of acquisition, Bs utrubi will be good against him, provided B took possession in good faith, even though it is stolen.
• Property which has been stolen in its history without being returned to its true owner cannot be owned via usucapio, no matter when the theft occurred and whether or not the possessor is aware of this.

Question 41

What factors will make a possessor interdict eg utrubi redundant?

Answer 41

-Taking my force, stealth or permission, this means that when B takes As property and then attempts to rely on a possessory interdict, whereby neither A or B are owners, B is unable to use a possessory interdict against A, even though A takes the property back from B

Question 42

What was the main possessory interdict available to prospective property possessors (moveables) and what limitations were there on its applicability?

Answer 42

• Utrubi- whoever had possessed for the longer part of the last year could retain or retake possession
• If would succeed provided the claimant did not obtain possession originally by stealth, force or permission.

Question 43

What was the main possessory interdict available for land and why did it slightly differ to Utrubi?

Answer 43

Uti Possideti- usually went to the person possessing the land at the time (therefore pointless)

Question 44

How were you protected against a vindicatio for the good faith accession of your accessory to anothers principle?

Answer 44

A plea of exceptio doli if the principal owner refused to pay, therefore the vindicatio would fail. If the owner of the principal was in possession, there was no compensation provided he was in good faith, if bad faith it was a case of theft, and an actio furti lay.

Question 45

How are servitudes created?

Answer 45

Only by the owner- legacy for habitatio and use of beasts of burden.

Usufruct created by conveyance, mancipatio, cessio, passage of ownership but reserving usufruct for yourself.

Question 46

In what bad faith situation may a gift not result in a valid transfer of ownership?

Answer 46

-Where B is deceived as to what they are receiving, and there is no intention to receive ownership of what is being received as a result (from A), then the delivery lacks the requisite intent and therefore can’t be a valid Iusta Causa.

Question 47

Who is entitled to fruits where A is a BF possessor of property for which she has cared for?

Answer 47

A remains owner because she has provided care and culture for fruits and is unaware of her lack of title; if it was a thief in bad faith or a good faith possessor who realises her lack of title, A is no longer entitled to fruits.