7 - Roman ownership and possession PDF

Preview

Summary

This lecture notes focuses on Roman ownership, as contrasted with Roman possession. Ownership refers to complete dominium over the thing , and is considered the highest title, whereas possession can be only temporary. There are many more nuances that are explored in the lecture notes. ...

Description

Roman Law Lecture – Week 7 Distinguishing Ownership from Possession  Possession is the physical control of a thing protected by law.  Legal facts are events with legal consequences.  Demur – when people differ about the consequences of a situation. A demurrer – when everyone agrees on the facts of a situation but not the legal consequences.  Possession in Roman law is a fact.  Even vicious possession is protected not against the true owner but against a later dispossessor.  The dispossession of the vicious possessor is spent once a fourth party takes possession. The true owner can now vindicate to get back the property (sue the fourth party). The police can reverse a legal expropriation like this. The true owner has the burden of bringing the truth to court.  The Romans were setting up a system of security of possession.  The vicious possessor can defend against anyone except the true owner in Roman Law. In English law you have the right to get the possession back from anyone who has a lesser claim to possession than you. The true owner has the highest claim to possession still.  Possession in Roman law can exist successively as a fact in numerous people, cancelling the possession of the prior person, apart from the true owner.  Why can’t a third party meaning well strip possession from the vicious possessor? Within limits we give the state a monopoly of legitimated violence.  How can the true owner snatch back them? We give occasional concessions to people to police their own environment (self-defence for example).  The Romans didn’t have a state that functioned to grab objects, parties would submit to the powers of the judge and if they disobeyed and went into a state of infamia you couldn’t go to court to protect yourself in the future.  You have therefore opened yourself up to self-help and violence. Acquisition of Possession (pg.13 in handout)  We don’t take possession physically or mentally alone, but together.  I cannot just proclaim something to be mine verbally without taking physical possession of it.  You can operate through a slave in Roman Law – if a slave grabs a swan for example and the owner doesn’t know it exists, the owner still possesses it through his slave.  Slaves are treated as persons and things simultaneously.  Can two people possess simultaneously? Only one can in Roman Law.  For example – A husband and wife are co-owners of a house today. What of Roman Law? The husband would possess through his wife. Women couldn’t own as they didn’t have their own legal personality.  In English law numerous people can simultaneously own.  Multiple possession was at work in Roman law, however, but in different ways. A widow could continue to live on land and eat the fruit but the son was still the legal owner even if he didn’t live on it.  What about when people borrow an object and it is stolen? You would have a negative interesse – you would have to go back to the lender and tell them you lost it and you could bring a theft action to protect your interesse and sue the thief.  These issues led to a great controversy. Was possession based on physical or mental control? It could be both in Roman law.

 

We can show many cases where mental operation alone makes you the possessor and the physical alone. If I offered you my book and you accepted it but I retained physical hold over it, this proves that possession can be mental alone at its deepest roots. Some would argue that I would be your physical arm so it is still technically physical ownership too.

Possession and Ownership (pg. 13 in handout)  Ownership has nothing in common with possession. Why did Ulpian say this?  You can be the possessor and not the owner and vice versa.  In common law every possession is a type of ownership because it extends out to many dispossessors down the line. Roman law said that you were only protected from the immediate dispossessor.  We’ll be coming back to this next week Getzler said. Iura in Re Aliena: Servitudes  In feudal times, how does a lord have rights to rent and that all people in the village must turn their barley into beer in his facilities?  They can make people perform their production operations in their facilities. Why? It was efficient, they didn’t want competition.  This wasn’t the case in Roman times.  If you took more than was reasonable from a servitude the servitude was nullified in Roman Times.  Urban servitudes (p.13) – houses control neighbours’ houses in a town was an urban servitude. The dominant house can stop the servitude house doing stuff that harmed the value of the dominant house.  The most important urban servitude was if you had a parting wall, and you as the house in servitude let water undermine the foundations so the whole suburb collapses, you’d have a duty of repair to make sure the wall always stays strong – this was a duty to act on behalf of the dominant house (right in faciendo).  The other urban servitude is to impose a negative duty on the houses in servitude not to build buildings higher and block the light of the dominant house. You had to buy the right. Baliol are worried about Trinity building upwards and blocking their view, they can purchase the right to stop them doing this but only from Trinity. This was the Roman system of land ownership.  Praedial Servitudes (pg.14) – Dominant land and servient land. The dominant owner sells land to someone and they don’t know about the right to walk through servient land.  This right still remains, they are bound to it by taking ownership. The right is engrafting onto the land itself. The claim persists to later takers of the estate.  These are incorporeal rights tied to the land.  If a third party who mows the grass for the servient house puts up a fence to stop the dominant house’s cows getting in the way of him mowing the grass, the dominant owner can sue the third party for blocking his enjoyment of the servitude to have access to the servient house’s land for his cows.  Personal Servitudes (p.14) – You had no right to abuses so a widow living on a house couldn’t improve it. She couldn’t pull it down and build a better one.  You could have ‘civil fruits’ – legal conveyance of the fruits of the usufructed object. If you had a slave who could generate for you services, if I am the usufructed slave of a hirer the fees you’d pay would be civic fruits that the slave would hand over to the usufructuary.





What of a slave woman who has children and she is out on usufruct to a usufructuary? Are the children the ‘natural fruits’ like the land? Or are they capital and go back to the dominus? The dominus gets the children because they are too valuable and would be perpetually loyal. Ulpian said it was disgusting to treat slaves like animals so can’t treat the slave children like you would the animals of the land. They hardly cared about the rights of slaves, however, so this argument is unconvincing. The Romans didn’t permit the usufructuary of a slave to take possession of the slave children.

The Acquisition of Ownership (pg.15)  If I kill your slave by accident, you have the right to damages.  If I gather fruit on land believing myself to be the usufructuary by mistake and consume it, I don’t have to pay damages as I did it in good faith.  Read the Gaius paragraph.  The natural law vehicles overtook the civil law vehicles as the Roman state expanded.  Original acquisition – the cause or event by itself creates a fresh ownership without reference to past ownership except that it may cancel past ownership  Derivative acquisition - Cannot find out what was acquired without reference to prior title.  There is a region in-between.  Occupatio – it is natural that that which is unowned becomes yours if you take it up. This was a first come first served principle. Think of imperialism and the ownership of land.  Occupatio refers to res nullius (things which have not yet been grabbed by anyone.  This will be continued next week....