Notes Acquisition of Ownership (Original Natural Modes) PDF

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Notes for Acquisition of Ownership - specifically original natural modes of acquisition ...

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Notes: Acquisition of property (original natural modes) Occupatio   

First taker of res nullius becomes its owner- ‘finders’ keepers’ Could be res nullius because: it had never before been owned or because the previous owner had intentionally ceased to be owner Could occupatio establish dominium of abandoned res mancipi? o Ius naturale method of acquisition not ius civile, hence usucapio would have been needed to complete title (Thomas) o Problematic as res might not have fallen into ownership again o Borkowski: occupation of abandoned res mancipi sufficed to give dominium

Examples  Islands arising in the sea (insula in mari nata)  Gems found on shore  Most common category ‘wild animals’ i.e. birds, bees, fish etc… o Animals classed as either wild (ferae) or tame (mansuetae) in nature- test was whether the species itself was wild not whether the animal in question was o Tame animals classed as res mobiles and subject to normal ownership rules o To acquire it was necessary to take effective control of it, for example for bees it was necessary to hive them, not enough to seriously injure animals o Irrelevant whether animal was on yours or anyone else’s land- land ownership did not entitle you to any rights in the animal o Owners of wild animals could not be liable for damages caused by escaped animals because they ceased to be the owner- Aediles edict later imposed limited liability for those who kept wild animals near highways o Ownership only kept while still in effective control, lost if out of sight or in sight but difficult to pursue (Institutes)  Animus revertendi (animals with a habit of returning)- ceased to be owned only when they abandoned this habit of returning  Property of enemy (res hostium) in Roman territory becomes that of first taker; booty captured in military actions usually belonged to the state although in practice to the commanding general  Offspring of animals you own are acquired- is this really occupatio? Abandoned property  First taker of abandoned property (res derelictae) becomes its owner so long as he has animus and corpus and the owner had the intention to get rid of the property, past owner has despaired of finding it  Schools dispute:

Sabinians: ownership lost at moment of abandoned and thus became res nulliusview prevailed o Proculians: dominium not lost until another took possession of the res Does not cover cargo thrown overboard in order to save ship from sinking (Institutes) Justinian puts abandoned property in the same section as traditio Looks like a variety of traditio- fits much better with analysis of magistrate throwing largesse to the crowd, cares only that one of his supporters picks up the coins o

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Thesauri inventio (Treasure Trove) 

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“Treasure is an ancient deposit of money, memory of which no longer survives, so that it is without an owner” (Paul) o Nicholas: see as monilia (valuables) In early Republic belonged to landowner by way of accessio; later in late Republic regarded as belonged to the treasury like other ownerless property (bona vacantia) Hadrian (117-138 AD) rules: o Finder entitled to all property on his own land or found by chance on res sacrae or religiosae o Finder entitled to half of property found by chance on other’s land, the other half went to the land owner o If finder used a deliberate search he took nothing (constitution of 474 AD)discourage trespassing Justification for finders’ share: akin to occupatio of abandoned res nullius? o Is the treasure really abandoned res nullius?

Specificatio    

Method of acquiring ownership by creating a new thing (nova species) using someone else’s materials i.e. A made wine out of B’s grapes ‘-ficatio’ or creation- suggests intentional making required Emerged in the late classical period, affinity with accessio Schools dispute: o Sabinian: owner of materials should be owner o Proculians: specificatio as a form of occuaptio, at the moment of the creation of the nova species it is res nullius  Strained analogy- how is res nullius if it was owned as soon as created (Borkowski)  If res nullius then another third party would have been able to claim it but this was not so (Czyhlarz)

Media sententia (intermediate view) adopted by Justinian: 

A makes nova species out of B’s materials: o If reducible belongs to B o If irreducible belongs to A

Potential reducibility was at issue, depended on how feasible it was for it to be reduced o Digest texts concerned with metal coinage- whose face value is subordinate to actual value A makes a nova species out of A’s and B’s materials: o Thomas (plain reading): A owns; media sententia applies only when there is no admixture o Buckland and Nicholas: if irreducible A owns, if reducible ownership in common If materials owned by more than one person, nova species is owned in common and confusio and commixtio can be used to determine rights Nicholas: schools dispute based on philosophical differences (Sabinian stoic concern with matter and Proculian concern with form or essence); Thomas: more likely that closed list was discussed and general doctrine added later Nova species: casuistic approach o Needed identity or name of its own (Borkowski) o Would an ordinary man have given the thing a different name (Nicholas) o Thomas: narrower conception were the materials still recognisable as what they had been o Example: crushed grapes not nova species but wine is o Any usufruct or pledge in res was destroyed by creation of nova species Compensation: o If creator acted bona fides and was in possession- no remedy o If creator acted bona fides and was not in possession- entitled to property if he paid the material owner for the materials o If creator acted mala fides he could be sued but was entitled to nova species o Creator probably entitled to compensation for work if he did not gain ownership of the nova species o

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Acquisition of fruits by non-owner   

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Fructus naturales (natural fruits)- could be acquired by separatio (severance) or perceptio (gathering) Fructus civiles (civil fruits)- acquired by delivery i.e. rents Child of female slave not classed as fruit so continues to belong to owner o Justified as concession to human fraility o Slave was too valuable to be assigned to non-owner (Nicholas) o “The fertility of slaves is not callously managed in the interests of productivity” (Birks) Those who gathered by severance (separatio) were legal possessors and looked to the world like owners (Thomas) Unripe fruits- if unripe fruits are picked would still get ownership, but could be liable on contract bonus paterfamilias standard i.e. usufruct

Separatio (severance) 

Took ownership as soon as fruit was severed whatever the manner, no need for gathering

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Bona fide possessor- appeared to outside world as owner; public policy question: inviolability of ownership versus reasonable claim of bona fide possessor o Bona fide possessor may have laboured to produce fruits- equally may not have done o Bona fide possessor believes himself to be the owner (Thomas)- emphasised by fact bona fide possessor must be ignorant of true owner o If bona fide possessor realised he was not the owner then he was no longer entitled to the fruits (Borkowski) o Constitution of 366 AD that bona fide possessor had to account for all unconsumed fruits when dominus recovered  What does consume mean? Sale appears not to be consumption (Buckland)  Suggests ownership bizarrely does not pass until fruits consumed  Thomas: best explained on moral grounds, that bona fide possessor was under obligation to account for fruits- equitable considerations prevented accountability for consumed fruits Emphyteusis- tenants who held on long or perpetual leases, entitled to fruits by severance Owned fruits on severance so had vindicatio against anyone who took them

Perceptio (gathering)   

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Had to physically collect or gather them in order to acquire ownership; could be done on his behalf Animal offspring: assistance in labour was normally sufficient (Thomas), Borkowski: assistance in labour not really needed Colonus- agricultural tenant holding under a contract of locatio conductio o Gathering with consent of owner is regarded as traditio brevi manu by land owner o Revocation of consent did not operate retrospectively; fruits not already gathered would not go to him Usufructuary- unlike colonus right to fruits not depended on consent of owner, usufructuary had an unconditional right in personam

Accessio    

Accessio- inseparable attachment of things belonging to different owners; incorporated property was accessory thing which exceeded to principal thing Commixitio- mixture of things with different owners but readily separable- with agreement became common property, if not could be separated Adiunctio- separable attachment of one thing to another, no change of ownership resultsactio ad exhibendum (action for separation) and vindicatio available Confusio- mixed but not readily separable and it was not possible to tell which was the principal and which was the accessory. Ownership is treated as common o Could be claimed by actio communi dividundo

Accessio and land  Anything attached to land became part of it

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Buildings (inaedificatio) acceded to land; primitive TT rule that no one should be compelled to pull down a building Distinction between building and materials- materials still belonged to whoever’s they originally where o Only remedy for materials absent furtum was to wait until building came down o If materials used to build on another’s land, material owner entitled to TT action for twice value of materials o If person built on another’s land with his own materials he was held to have gifted the materials if he acted in mala fides  If in good faith and still in possession entitled to recover expenditure (Buckland: text interpolated), if in good faith but not possession entitled only to recover materials when building came down Justinian: ius tollendi builder’s right to remove such materials as he could without damaging the building o In classical law only function for builder in good faith and for ornamental additions where building owner was not willing to compensate o Seems to conflict with general rule that it was forbidden to pull down buildings (Buckland) A builds on B’s land with C’s materials- not dealt with by texts: o If builder in possession material owner is in same position as if builder owned the land o

If builder acted in mala fides action for twice the value of materials against him under TT (actio de tigno iniuncto)

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If builder out of possession and acted in good faith, no remedy against him- like any bona fide possessor who ceased to possess

Planting and sowing- owner of land becomes owner when thing takes root o Sows seeds on own land belonging to another liable to theft for mala fides and compensation for bona fides o Sow own seeds on someone else’s land- mala fides deemed to have made a gift of them, bona fides and in possession compensation

Rivers  Avulsio- piece of land cut-off by river and deposited on land of another, remains original owners unless it adheres to the land by trees thrusting their roots into other’s land  Alluvio- imperceptible accretions or deposits on person’s land acceded to it  Rivers- island in middle of river is owned by riparian owners (owners of banks), if the island lies wholly to one side it is owned by the riparian owners on that side o Dried river bed is shared by riparian owners up to middle line of bed o o

If land becomes an island by way of action of river no change in ownership If land flooded and waters do not recede land is partially lost and becomes new river bed

Accessio affecting res mobiles  Occurred when two things united with one merely an accessory to another, such that its identity merges  Lost identity: Buckland: whether total thing would retain identity if added thing was removed Principal or accessory  No clear rationale, mostly policy grounds (Nicholas)  Value of each element or respective portions of final product (Pomponius) o Inadequate test since things of greater value could accede to those of lesser (Nicholas) o Relative value does not appear in sources (Buckland)  Principal thing must be capable of independent existence (Paul)  Test based on physical identity: principal thing retains identity or overall character (Borkowski)  Example: tablet accedes to the painting; Justinian seemed to apply classical view for reason of relative value  Example: gold writing would accede to parchment, despite being more valuable Compensation  Principal owner acted mala fides liable for furtum but still owner  Principal owner acted bona fides and in possession not liable to compensate in classical era o Position changed in late Empire when actio in factum was allowed for value of accessory  Principal owner acted bona fides but was not in possession could obtain property by vindicatio but only in paying value of accessory  Accessory owner attached with full knowledge of facts deemed to have made gift  Difference for painting? Dubious Digest passage suggests tablet owner had actio utilis if he paid the value of the painting (not clear what this was), but painter could vindicate subject to paying value of tablet o “Absurd” (Thomas)- suggests both can recover from other...