Property 2 Mahesh - Summary Roman Law PDF

Preview

Summary

Part 2 of notes considering the Roman law of property - from ownership, to possession, to possessory interdicts, to the faltering concept of dominium, it is all covered in the notes. ...

Description

3) Rights to things A - Ownership N 153-157 Definition  Simple: Difference between mine and thine  Sophisticated: Ultimate right behind all other rights  No Official Roman Definition  only Romanistic ones Is ownership ‘absolute’? – Overall no  YES – In terms of Enjoyment o Definition by commentators adapted from usufruct  added to the rights of use and enjoyment the right of abuse  ius utendi fruendi abutendi (the right to use and enjoy misuse)  NO – In terms of Enjoyment o Misleading on the plenitude(abundance) of enjoyment conferred by ownership  No enjoyment can ever be free from any restrictions  1) The use, enjoyment, and abuse of his property by one owner must be reconciled with the equal use, enjoyment, and abuse by all other owners of their property  2) There are usually other restrictions are imposed on the enjoyment of the owner in the general interest of the public.  E.g. French Civil Code declares ownership is ‘the right to enjoy and dispose of things in the most absolute way’ but adds the proviso that such enjoyment must not contravene the general law  Extent of those restrictions depends on the political and economic ideas of the time o Misleading as the definition in only in terms of enjoyment  1) Existence of iura in re aliena (the rights of someone over the estate of another person sometimes leaves the owner with no present rights of enjoyment at all  limited interests in assets  The owner of a thing subject to usufruct or of land subject to a right of emphyteusis or superficies has no more than an ultimate right to enjoyment   why ownership is defines as the ultimate residual right  remaining when all else has expired  YES – In terms of Title o 1) The only right of its kind  Right to ownership  The ultimate final claim to a ‘thing’ after all other claims are satisfied  Nothing intermediate between right of ownership and ‘fact’ of possession  A man is either an owner or he is not owner (like YES above)  This absolute title  protect the tertium quid between O and P (no possibility of a third thing aside from O &P)

1

Storytime: If B takes A’s item and A only has possession of that item  He can proceed against B in reliance of his possession; BUT If thing is taken from B by C, A has no remedy against C.  Cuz Roman law has an action asserting ownership and an action asserting possession but no action asserting a right to possession (but got asserting a right to ownership)  A person asserting title to a thing must show that he has the absolute title of an owner NO – Title is hard to prove o 1) Misleading as in reality  plaintiff in a vindicatio had to prove he had the best and only right o **But how to prove ownership title?  the probatio diabolica (devil’s test)  Have to show proof that he obtained it lawfully from X, and then from Y, (derivative) until he can trace his title to an original mode of acquisition (no prior owner needed-e.g. Usucapio and Occupatio)  Potential escape?  short periods of usucapion owner can just prove ownership due to possessing it overtime  GOOD: Bona fide is assumed in proving usucapion  BAD: Not any easier to prove than ownership itself o Must show iusta causa o Even if can show that  almost impossible to show that it has never been stolen or land has never been taken by force  *Exception: unless he has possessed it longissimi temporis praescriptio (>30yrs)  theft and taken by force irrelevant NO – Title is not Indivisible o 1) Misleading  indivisibility is only verbally true  Romans may have adhered to the dogma of the indivisibility of dominium  BUT turned a blind eye to clear exceptions to the principle of indivisibility: bonitary ownership and bona fide possession  Each is a tertium quid between O and P  Bonitary owner: Owner but for a few technical details  Bona fide possessor: In effect a relative owner  an owner to everyone but the dominus (the owner with the title)  **Nicholas: “The Roman lawyers never came to terms with their own creation YES – In its inviolability o 1) Principle: Man cannot lose ownership without his consent, with the corollary that man cannot pass a better title than he has NO – In its inviolability o 1) Misleading  exception is prescription  See Modern law & inviolability in Nicholas in Section B  Limited exception though 









TT 133-136 Dominium

2

 Most important right for corporeal things  distinguished from lesser rights: praedial and personal servitudes  Implicit conditions o In commercio: capable of being owned and untainted by theft/taken by force o Res furtiva  Acquirer had to have the right to use the processes of the ius civile  In Derivative acquisition  the transferor as well  Thing had to be acquired by a recognized legal process  In Derivative acquisition from the dominus  What is dominium? o Ownership?  no got other forms of ownership (e.g. peregrine ownership) o Right to use, enjoy and abuse  no got bonitary ownership  All normal attributes of ownership might be exercised by one person  yet another was the dominus o Unrestricted power?  no got restrictions (exp earlier)  Twelve Tables  Controlled height of buildings  Riparian owners had to allow access to the river to the public  Person could be expropriated (stripped of assets for public benefit) without recompense o Hence  simply the ultimate legal title beyond and above which there was no other Peregrine ownership (inferior)  Foreigners did not have commercium (right to use process of ius civile)  cannot have dominium o To acquire this frm of ownership  the used the methods of the ius gentium (natural law as opposed to civil law)  Unimportant due to constitution Antoniniana in A.D. 212 o Gave citizenship to all free inhabitants of the empire  Overtime  disappeared o Justinian repealed the lex Aelia Sentia Ownership of provincial land  Ordinary person could not have dominium over this  Land was vested in either the population or the emperor o (Per Gaius)  Stipendiary provincial estates  Administered under the old Republican system by the senate  Property of Roman people  Tributary provincial estates  Administered by Emperor’s officials  Property of the Emperor  Reality: largely held by private individuals paying rent to the authorities  practical ownership o They could use the natural modes of transfer (since provincial) and create the equivalent of usufruct and praedial servitudes (section 4)

3

 Distinction between Italic and provincial land lost significance overtime o When Diocletian in A.D. 2992  subjected land in Italy also to the tribute o Although Italic land was res mancipi  Traditio was the normal mode of transfer anyway  applied to both  Justinian abolished res mancipi  hardly any distinction

B – The Actio Publiciana G II.40–1; G IV.36 Ownership  Person is either an owner or not an owner by the law of the Quirites  Overtime became divisible  one person could be the owner by law of the Quirites, while another could hold it  Only for cases of informal convenience by delivery (traditio)  will be owned by dominus till end of usucapio  end of the period  holder becomes owner under law of Quirites  as if it had been formally conveyed or surrendered in court.  There is fiction of usucapion in the AP  where if a man claims a thing has been delivered to him on valid legal grounds and he lost possession of it before usucapion period  Since he is unable to claim it in the intentio as his property by law of the Quirites  he is feigned to have acquired is by usucapion and therefore thought to become owner by quiritary right. The Institutes of Gaius, Zulueta commentary Bonitary Ownership  Double ownership of a thing o One has civil law title, other has effective rights  Can be acquired by traditio and must therefore have iusta causa  Comparing bonitary owner and bona fide possessor (assuming traditio) o Similarities  Both had the protection of the interdicts  When lost possession  actio publiciana  Terms of AP covers anybody to whom a thing, whether mancipi or not  had been delivered because a sale (the iusta causa) o Afterwards extended to other iustae causae)  Covers both bonitary owner and bona fide purchaser a non domino (means he acquired it from a non-owner but thought it was from the owner) o **The reason why the AP survives in law of Justinian after the abolition of the distinction between Quiritary and bonitary ownership  AP did not enable every bona fide possessor o If it is against the true dominus the bona fide possessor loses by plea of good title  Means real owner bring vindicatio to possessor, who brings AP against him, in return met with the plea of good title

4

o

exceptio iusti dominii) *BUT since this plea would have equally defeated the Publiciana brought by a bonitary owner  it was granted only after investigation by praetor (causa cognita)  If plea granted because case was doubtful  can be defeated by a further plea (replicatio)

Differences  However, bonitary owner had extra protection from vindicatio from the real owner  Bona fide possessor would be evicted by vindication of the dominus  Practically had all the benefits of ownership o One general inferiority  by certain forms of legacy, a testator could leave only what he owned in Quiritian law o

TT 136–7; 149-150 Bonitary ownership/Praetorian ownership  If a person acquired a res mancipi from its dominus other than by formal modes of conveyance (mancipatio & in iure cessio)  did not acquire dominium o Could only obtain dominium after 1 or 2 years via usucapio o During which he had possession  Problematic  1)Transferor was still dominus and thus could vindicate the thing anytime  2)If holder lost it  unable to assert any title over it  Problems solved by praetor by end of Republic  1) If dominus sued holder in vindicatio holder granted defence that thing had been sold and delivered to him (exceptio rei venditae et traditae)  2) If holder lost possession  praetor gave him the Actio Publiciana o A fictitious vindicatio o Even fron the dominus  If dominus pleads his legal ownership, holder can counter with the replication of all things delivered upon sale (replicatio rei venditae et traditae) o Instructed the judges to assume the period of possession in favour of the bonitary owner (like assume period of usucapio had already passed)  Thus, holder had obtained complete protection during the period of usucapio o *Hence, for the period of usucapio the bonitary owner had all the practical benefits of ownership, and dominus merely held the bare title.  Overtime unimportant o Formal modes of transfer diminished in significance  replaced by tradition o Justinian abolished the distinction between res and nec res

5

mancipi So in latter Empire  there was only one unified form of ownership: dominium  Aside from traditio of res mancipi other ways to become bonitary owner o E.g.  Bonorum emptor (good buyer) of a bankrupt estate  Beneficiary under succession on death o POINT: all were instances of persons holding the property in issue by virtue of a magisterial order o

Actio Publiciana  Bona fide possessor  the principal beneficiary after Justinian abolished distinction between res nec mancipi and res mancipi. o He must have acquired it in good faith  even if he discovered the truth afterwards during period of usucapio o Can eventually own it unless  vindicatio is brought by the real owner (elaborated below)  He is against the bonitary owner (as Bonitary owner got protection against not only owner but any successors as well) o **Only a relative chance of success in the AP, as bona fide possessor will only succeed against a weaker claim  If 2 bona fide possessors  If each had received it from the SAME non-owner  earlier recipient will prevail  If each received it from a DIFFERENT non-owner  the actual holder would be victorious) N 125–8, 129-30 Bonitary owner and bona fide possessor  Bonitary owner: possessor whose title was only formally defective  recipient of res mancipi by traditio  Bona fide possessor: possessor whose title was substantially defective because dderived from a non-owner  Initially o Both protected by possessory interdicts in ordinary law  Lay only against the immediate dispossessor  E.g. if A, a possessor, loses possession to B who then transfers it to C  A cannot bring a claim against C due to no title of ownership  Later o Praetor intervened in late Republic  Bonitary owner to be protected from everyone  Bona fide possessor protected from everyone except the owner. Actio Publiciana  A vindicatio in which the necessary lapse of time is fictitiously presumed  Landmark action o Abolished the need for mancipatio o Transformed Roman ownership by formally recognizing traditio of res mancipi

6

o

o

DID not remove dominion  the dominus still retained his title  The possessor merely had the thing among his goods – in bonis Created 2 other forms of praetorian ownership  Bonitary ownership differed only technically from dominium and can be reconciled with the uniqueness of ownership if Romans gave theoretical recognition to the fact that traditio of a res mancipi passed ownership (like put into theory what was reality  not still be staunch about the title of ownership)  Justinian finally gave recognition by abolishing the distinction between res mancipi and nec mancipi s  Bona fide possession as a relative ownership  good against everyone except the owner

Justinian’s reforms  Usucapio was a civil mode  applied only to things capable of Roman ownership for Roman citizens  hence excluded provincial land  Gap filled by longi temporis praescriptio o Became like usucapion  10 / 20 years  Made usucapio the acquisition of movables (3 years) + made longi temporis praescriptio for land  Created a new form of acquisitive prescription  longissimi temporis praescriptio o If you acquire it in good faith o Even if without iusta causa + Even if stolen/taken by force >30 years  became actual owner Modern law and the inviolability of ownership  Prescription is an inroad on the inviolability of ownership (that mad should not lose ownership without his consent)  explanation is in J’s reforms  Over time o Classical Law  More insistive on inviolability of ownership  Allows no inroads on it that usucapion and longi temporis praescriptio  which have limited scope o In law of J  Longissimi temporis praescriptio made more substantial inroads  but lapse of time was very long

C – Possession G IV. Interdicts  Original Division: for prohibition, for restriction, or for production  Next Division: For obtaining, retaining, or recovering possession o For retaining possession  Uti Possidetis  granted wrt possession of land  Praetor orders that party to have the preference who, at the time the interdict was issued, obtained possession from his adversary, neither by force nor secretly, nor with his acquiescence (reluctant

7

acceptance) Utrubi  granted wrt possession of movable property  Praetor orders that party to have the preference who, for the greater part of the year, has held possession against his adversary neither by force nor secretly, nor with his acquiescence o For recovering possession  Usually granted where anyone has been ejected by violence, if the initial holder did not himself obtain possession either by violence, clandestinely, or m from the latter holder  Means I can eject with violence anyone who has obtained possession from either by violence, or clandestinely, or by permission. o Exception is if I eject by force of arms  too atrocious  then I will have to reinstate the person in possession  Final division: Simple and Double o Simple  One plaintiff and defendant: plaintiff demands that property be restored/produced and Defendant is from whom it is demanded that he produce or restore it  Some prohibitory interdicts are simple: Praetor forbids a D to perform an act on consecrated ground o Double  E.g. Utrubi & Uti Possidetis  Double cuz position of both litigants is the same both sustain parts of D and P Possession  Definition of possession o Not only when we ourselves possess BUT when anyone is in possession in our name although he cannot be subject to our authority (means we don’t have full authority over him)  e.g. tenant, lessee o Also considered to have possession  even if I have deposite property, or lent it for use, or granted gratuitous lodging, or granted the usufruct or use  still we are in possession: Power of retaining possession of property by anyone who possesses it in our name o Authorities also hold that : possession retained merely by intention  Although we are not in current possession, nor is anyone in possession under out name  still if there is no intention of giving up possession and we leave intending to return  deemed to have retained possession of it 

N 107-115 Possession and ownership  Distinction: Difference between being entitled to a thing and actually having it  Roman maxim: “ownership has nothing in common with possession”  Roman understanding: the holding of a thing in the manner of an owner  Still a lot of confusion between layman and lawyer o 1) English layman uses the terms interchangeably because he

8

o o

usually owns what he possesses and possesses what he owns BUT lawyer must be use exact words 2) Roman law sometimes denies possession to someone who actually holds the thing and accords it to someone who does not 3) Difficult to determine in some cases what constitutes an actual holding

Protection of possession  Possessory interdicts: remedies for possessors to 1) restrain others from interfering with his possession and 2) recover possession from anyone who dispossesses him.  How does it work? o If A who is in occupation of a land is evicted by B, he can compel B to restore the land to him upon satisfying 2 requirements:  1) His occupation must have amounted to possession in law  2) His possession must not have been obtained vi (by force), clam (secretly), or precario (by grant at will) from B  precario: If the person said that in their mind they have taken possession  called ‘vicious’ possession  3 important features o 1) Remedy lies only against the dispossessor  if B is dispossessed by C or delivers it to C  A cannot seek remedy against C cuz he doesn’t have title of ownership  hence doesn’t have vindicatio o 2) The title of either party is irrelevant  Dispossessor cannot plead his title a owner  Because the issue in a possessory interdict is possession  ownership is irrelevant  **of course once the owner loses in the possessory interdict he can immediately assert his ownership in an appeal by a vindicatio and then boom shakalaka he will get it back o 3) Possession must not have been obtained vi, clam, or precario from the other party.  We say other party not “anybody” because it is irrelevant that the possessor obtained possession viciously from someone other than the dispossessor  **Storytime: Cont’d from above: If B in turn is dispossessed by C  he can bring an interdict against C, and C cannot say that B’s possession was obtained by force from A  that objection is only relevant between A and B Importance of possession  What makes the possessory remedy good? (even for owners) o Simplicity of proof  much easier to prove possession than ownership o So if A is the owner who has been dispossessed by B  He will first proceed by possessory interdict  then subsequently do vindicatio  cuz then the burden is on B to prove his ownership title  which he cannot  If A straight away proceed with vindicatio  He, the plaintiff must prove his ownership title which is hard  Gaius: The possessory interdict function serves to determine which party shall be defendant in a

9

vindicatio  Important in the law of property  as possession is the root of the 2 most common methods of acquiring ownership: traditio and usucapio Who has possession?  1) What categories of holder are i...