week 4 Flashcards
Derivative Acquisition of Ownership
- Usually when someone acquires ownership of a thing, it is because the previous owner has transferred or “conveyed” it to him. We call this sort of acquisition of ownership derivative, because it is derived from someone else.
There are two different broad modes of derivative acquisition of ownership: - First, there is formal conveyance (in roman law, mancipatio)
- Second, there is informal conveyance (in roman law, traditio)
- In formal conveyance the transfer must be accompanied by some ceremony, or more commonly today some public act, in order to make it effective. So in modern Scots law the ownership of land cannot be transferred without registration in a public register. Such extra “forms” of conveyancing are not required in informal transfer.
Formal Conveyancing: Mancipatio
- Ownership of some things, or res, or “assets of economic value” could only be conveyed or transferred by means of the mancipatio
- Mancipatio was a formal mode of transferring ownership and property rights in ancient Roman law. This method was used in the early Roman legal system and involved a ceremonial act of sale or conveyance.
- publicity principle. This says that transfers of ownership of things should be done openly, and publicly, so that everyone is aware of exactly who owns what
- only certain types of res, for the most part res which were vital to the ownership of certain lands (i.e. lands in Italy, including of course things which had acceded to such lands) and the means by which land was exploited in terms of agricultural production (i.e. beasts of draught and of burden, and also slaves) had to be ceremonially transferred in this manner
- Mancipatio does not form part of Scots law today. But we do have formal conveyancing of a different sort for land in scotland. We require land to be registered in a public register in order for ownership to pass. That satisfies the publicity principle. Not the potential role or prescription here.
Informal Conveyancing: Traditio or Delivery
- informal conveyance simply required delivery of the object to be transferred coupled with the intention of the parties to transfer it.
- The thing to be transferred had to be capable of transfer and acquisition by delivery or traditio . Most corporeal things fell into this category, except for those things that required mancipatio.
- The transferor had to have the capacity to give ownership, and the transferee had to have the capacity to receive it
- The transferor had to intend to transfer ownership, and the transferee had to intend to receive ownership.
Traditio brevi manu
- A is in possession of a thing owned by B. A wants to acquire ownership of the thing, and B is happy for this to happen. Does A have to hand the thing back to B to allow B then to deliver it to him and subsequently make A owner? No
- The Romans said that if A, the prospective acquirer of the thing, was already in possession, then if B intended to transfer ownership of the thing to A, and A intended to receive it, then A could acquire ownership without any further act of physical act of delivery.
Constitutum possessorium
- A is in possession of a thing he owns, and he wants to make B the owner. However, A wants to retain possession of the thing for a time.
- I want to sell you my car and make you the owner of it. You want to buy it and acquire ownership of it. But I want to hold on to the car for two weeks until my new car is ready. Can I make you owner without physically handing the car over to you? The Romans said yes
Traditio longa manu
- Suppose X wanted to buy land from Y, or a large pile of heavy logs. There was obviously no need to physically transfer the land or the logs from X’s hands into Y’s hands. Rather, the Romans said that X could receive delivery of possession or traditio by being put into sight of the land by Y, or by Y pointing out the land and its boundaries to him.
Symbolical delivery
- Suppose C wished to deliver to D a large quantity of wine in warehouse, and so transfer ownership. Suppose C handed over the keys to D. “If a person sells merchandise lying in a warehouse, as soon as he hands over the keys of the warehouse to the purchaser, he makes him the owner of the goods
Casual transfer
- The system that says the validity of the contract determines the validity of the conveyance is today called the causal system
- Suppose A and B enter into a contractual transaction relating to a car, and suppose A intends to sell his car to B, while B thinks he is receiving a gift. In that case, there is no valid contract and so no valid conveyance. Ownership of the car remains with A.
Abstract transfer
- By contrast, the system which says that the validity of the contract is irrelevant to the validity of the conveyance is today called the abstract system
- Under the abstract system, all that matters is that both parties intended ownership of the res to pass from A to B
- the validity of the conveyance (transfer of ownership) is entirely abstracted from the validity of the underlying contract
- Suppose A and B enter into a contractual transaction relating to a car, and suppose that A intends to sell his car to B and B thinks he is receiving a gift. In that case, even though there will be no valid contract there can still follow a valid conveyance. Regardless of the invalidity of the underlying contract, if A intends to transfer ownership and B intends to receive it, ownership will pass – assuming the other requirements of traditio are met
- according to the abstract system of transfer of ownership, within a single transaction, relating to the sale and transfer of a thing, an invalid contract – which is governed by the law of obligations – may be followed by a valid transfer of ownership – which is governed by the law of property. This follows from the abstract system.
The reverse is also true. Within a single transaction, a valid contract might be followed by an invalid transfer of ownership. The fact that the contract is valid has no bearing on the validity of the transfer of ownership within the abstract system we are teaching.
Subordinate real rights - introduction
- Ownership is the sovereign real right. But, as mentioned, there is also another class of real rights known as the subordinate real rights. Like ownership, these rights are in rem, and so enforceable against the whole world.
- Note why they are called subordinate
The three different types of subordinate real rights to be examined are as follows: praedial servitudes, personal servitudes and rights in security
Subordinate real rights - Praedial Servitudes (1)
- A praedial servitude is a subordinate real right enabling the owner of one piece of land - the “benefited” or “dominant” tenement - to do something on a neighbouring piece of land in separate ownership; this is called the “burdened” or the “servient” tenement.
- common example is a right of access to cross land
The romans recognised a range of such servitudes
They actually distinguished between different types of servitude of access - The servitude of iter was a right of pedestrians access (i.e access on foot)
- The servitude of actus was a right of driving beasts of draught or vehicles
- The servitude right via included both rights of iter and actus
- Another similar servitude was the servitude of aquaeductus, the right of leading water through another mans land
- these were labelled by Justinian as the rustic praedial servitudes.
Subordinate real rights - Praedial Servitudes (2)
Various fundamental rules governed the operation of servitudes.
1. First, there had to be two separate immovable properties in separate ownership in order for it to be possible for one property to have a servitude right burdening another.
2. Second, the owner of the servient or burdened land could not be required to do anything, generally speaking; he could only be required to refrain from doing something. The major exception related to the urban praedial servitude of support.
3. Third, the servitude could only be used for the benefit of the dominant or benefited land.
4. Fourth, the burdened and the benefited properties had to be reasonably close to one another, so that it could be said that the benefited property truly benefited from the servitude over the burdened property
5. Fifth, the servitude could not become overly burdensome, that is to say, undergo a change in nature.
6. Sixth, the servitude had to be exercised reasonably.
7. Seventh, praedial servitudes were perpetual; they ran with the land, as has been explained
Subordinate real rights - Praedial Servitudes (3)
Creation of servitudes :
- By formal modes of conveyance (including, for example, the mancipatio in the case of rustic servitudes).
- By will. Suppose a man left a legacy of some of his lands to his friend, and the rest of his lands to his heir. He could burden the lands left in the legacy with a servitude in favour of his heir.
- By a special form of usucapio in late Classical law. Basically, if a person exercises a right of servitude for ten years over his neighbour’s land, and that right could otherwise be classified as one of servitude, then he could acquire a servitude right – a right in rem – benefiting his property . In the modern law it is still possible to acquire servitudes by prescription, but now we require the exercise of the right for twenty years.
Extinction of servitudes
- By renunciation
- By confusion, where the owner of the benefited property becomes owner of the burdened property
- By non-use for a period of time (twenty years today – this is known as negative prescription)
Personal Servitudes: Usufruct
- If praedial servitudes burdened land in favour of other benefited land , personal servitudes burdened land in favour of a benefited person.
- Usufructuaries (holders of usufruct) had to maintain the property, and they could not change it – for example, an usufructuary of an orchard could not chop down the trees for purely aesthetic reasons. When the usufructuary gathered fruits of the land he acquired ownership of them, like the good faith possessor, but he did not ever have to account for them to the owner in any circumstances.
- An Usufruct could be created by the owner of the lands, and it was usually created in wills. An Usufruct could be terminated on the death of the holder or earlier if the servitude term was shorter.
Real security
- A wants to borrow a large sum of money from B. B is concerned about A’s ability to repay. Can B ask A for security in law that he will make repayment?
The answer is yes. - First, B could ask A to get A’s friend, C, to guarantee that if A were to be unable to repay the loan, C would repay it for him. C would then be A’s guarantor. We call this sort of security personal security. It has no direct consequences in Property law.
- Alternatively, B could ask A to deliver to him some valuable item – such as a car – in security for repayment of the loan. The agreement would be that if A failed to repay the loan, B would have a subordinate real right in the car to sell it and recover his losses. The Romans would have called this sort of transaction the pignus, or pledge.
