Roman Law of Property (2)

8/13/2019 Roman Law of Property (2)

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James Grech

LL.B 1st Year

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R W LEE: The Elements of Roman Law

Roman Law of Property

I. Preliminary:

1. Thin!: By Thing (Res), the Romans understand any unit of economic value.

The common link beteen the various res is that hoever has a res is actually or

!ros!ectively so much better off. Buckland defines "res# as being any economicinterest guaranteed by la, any right or rights having a money value, any interest

e$!ressible in terms of money hich the la ill !rotect.

1". #lassification of Thin!s% Things may be classified according to their !hysical

nature, or according to the technical rules of the legal system in &uestion. Thus if e

classify things as movable and immovable e are looking at their !hysical nature, 'f

e classify them as manci!able or non-manci!able, e are looking at the arbitrary

distinctions created by la.

1st Distinction% 1"1.$o%a&les ' Immo%a&les% This classification is not as sim!le as

it looks. 't is difficult to say for legal !ur!oses hether a thing is to be regarded as

movable or immovable. Besides, a thing hich may be treated as movable for one

!ur!ose, may be treated as immovable for another !ur!ose. Thus, e are not

concerned ith the &uestion of hat things are in themselves, but rather hat is the

attitude of the la in regard to them.

There ere some differences beteen movable and immovable !ro!erty.

The !eriods of usuca!io ere not the same (*).

+ovables could be stolen. and not. ()

'n relation to !ossession and the !ossessory interdicts the rules ere different.

Real or !raedial servitudes are naturally ina!!licable to movables.

1(. Thin!s &eyon) Personal *wnership:/ustinian says that things are either in

our !atrimony or beyond our !atrimony, by hich he means that there are certain

things hich are not the sub0ect of !rivate onershi!. These are%

a) Res Communes% Things common to all men, 1 i.e. the air, running ater, the

sea, the seashore).

b) Res Publicae% Things !ublic, 1 i.e. rivers and harbours

c) Res Universitatis% Things belonging to a cor!orate body, such as theatres,

racecourses and so on in cities.

d) Res Nulliuscom!rising%

(i) Res sacrae % sacred things 1 i.e. churches and other things dedicatedto the service of 2od


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(ii) Res Religiosae % religious things, i.e graveyards and graves

(iii) Res 3anctae % sanctioned things, such as city alls and gates. These

are said to be sanctioned because any offence against them is

!unished ca!itally, and !enalties im!osed by la are termed

sanctions.

4ll this is very confused. The distinction beteen things !ublic and things common is

ill-defined and has no !ractical value. Rivers, for e$am!le, ere said to be !ublic only

if they floed all year round.

1+. Res ,-lli-s% The !hrase res nullius is used in various senses

a) to include all the things hich according to Roman ideas ere not susce!tible

of !rivate onershi!. (the term used in a general sense)

b) s!ecifically, as above, of things sacred, religious or sanctioned. (the term used ina more specific sense).

c) of things hich though susce!tible of onershi!, are not at the moment

oned, e.g. ild animals not ca!tured, or things hich have been abandonedby their oners (Res 5erelictae).

1. Res #orporales ' Res Incorporales:

6or!oreal things are things hich can be touched, such as lan)/ a sla%e, a

garment, gold, silver and other things innumerable.

'ncor!oreal things are things hich cannot be touched. 3uch are things hich

consist in a right, as an inheritance, usufruct and obligations in hatever ay

contracted.

1"0. Res $ancipi ' Res ,ec $ancipi: This distinction e$isted in Roman a until

it as abolished by /ustinian. +anci!able things ere things hich ere transferred

by manci!ation. 4ll other things ere non-manci!able. 7e ill s!eak of this hen

e s!eak of the modes of ac&uisition. (see 89-*)

1". 2omini-m E3 J-re 4-irit-m 5onershi! by &uiritary title)% Roman

onershi!, or as it as called, onershi! by &uiritary title, im!lies a Roman oner of

a Roman thing ac&uired by Roman !rocess. 't as not available for !eregrines,

because they ere not citi:ens. 't as also ina!!licable to !rovincial land. There ere

other distinctions. But these distinctions ere to lose their significance ith the

constitutio 4ntoniniana (45 ;;) hich had e$tended citi:enshi! to the holeRoman orld.

II. $o)es of 6c7-isition

1"". The modes of ac&uisition are the !rocesses by hich a thing becomes mine.

These are distinguished beteen,


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5erivative% hen ' derive my title from someone ho oned before me, and

take sub0ect to any real burdens hich attach o the !ro!erty.

1"(. ,at-ral an) #i%il $o)es:/ustinian says that e ac&uire things either by natural

la (the 0us gentium), or by civil la. The first is the older because it has e$isted

since time immemorial. 7e shall first s!eak of the civil modes of ac&uisition and thenof the natural modes. (in the order preferred by Gaius and not that found in the Institutes). 4s far

as the legal conse&uences are concerned, there is no difference beteen them. Both

alike made the ac&uirer the oner of the thing ac&uired.

III. 6c7-isition &y #i%il Law:

1"8. $o)es: The civil la modes of ac&uisition described in the 'nstitutes are

=suca!io and 5onatio. 'n the earlier la the to !rinci!al modes of ac&uisition by

civil la ere +anci!atio and cession in court ('n /ure 6essio). /ustinian does not

mention these in the 'nstitutes. >et they are of historical im!ortance and e ill dealith them. Besides there is also the mode of ac&uisition knon as Traditio hich

even though in the 'nstitutes, it is found in the natural modes of ac&uisition, e ill

treat as a civil mode of ac&uisition.

Thus e ill s!eak of,

569$ancipatio

5B9 In J-re #essio

5#9s-capio

529Tra)itio

5E9 2onatio5;9 2os

569

1"+. $ancipatio:

2aius describes manci!atio as a fictitious sale. The ceremony of manci!atio re&uired

that not less than five itnesses ere to be brought together? these had to be Roman

citi:ens above the age of !uberty. 4nother !erson had to hold the bron:e balance and

as called the libri!ens. Then the !erson ac&uiring by manci!ation had to take hold of

the thing to be transferred and say these ords, This thing ' declare to be mine by&uiritary right, and be it bought to me ith this bron:e and bron:e balance. Then he

had to strike the balance ith a !iece of bron:e and give it to the transferor by ay of

!rice. The thing being transferred had to be !resent, 'n the case of immovables, a sod

of earth as taken to re!resent the immovable !ro!erty. There is no a!!arent reason

hy the same symbolism couldn#t have been used for movable !ro!erty, and !erha!s

this as done hen the movable !ro!erty as large.

1"


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ceremony as no merely dramatic, for the transfer as being done for a sum of

ready money. The actual contract or sale took !lace, so to say, off stage.

Ao doubt that the transition from the real to the fictitious as gradual.

1(1. What thin!s co-l) &e con%eye) &y this process=

The anser is res manci!i. The term includes%(a) land and houses in 'taly and in certain !rivileged districts outside 'taly

(b) rustic servitudes over such land

(c) slaves and beasts of draft and burden

verything else including !ublic land, !rovincial lands, and urban servitudes ere res

nec manci!i.

7hy ere the above-mentioned things grou!ed together in one class@

Because they constituted the !rinci!al ealth of a !rimitive rural community. These

ere the things entered u!on the census roll and determined the assessment of the

individual citi:en.

1(. En) of $ancipatio: +anci!atio as a living institution in the time of 2aius andeven to centuries later, but the ceremony became unnecessary as a recital in a

ritten instrument that the forms had been com!lied ith as alloed to serve the

same !ur!ose. 'n time, manci!atio as su!erseded by traditio. 7hile it lasted, it had

the advantage that onershi! could be transferred by this method ithout transfer of

!ossession (therefore not necessarily on the s!ot). But in the later m!ire, a deed of

transfer as e&ually available for this !ur!ose.

5B9

1(". In J-re #essio :

This is another civil la mode of ac&uisition. 2aius describes ho in 0ure cessio took

!lace. The !erson to hom the cession as being made had to go before a magistrate

of the Roman Ceo!le (such as the !raetor =rbanus), hold the thing in &uestion and

say, This thing ' declare to be mine by &uiritary right. This as called %in)ication.

7hen he had vindicated, the !raetor ould ask the !erson ho is ceding hether he

anted to make a co-nteret, =l!ian highlights the great distinction beteen the to modes ? in @-re

cessio co-l) &e s-e) for res nec mancipias ell.

1((


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Dor urban servitudes, this as the only method available. Rustic servitudes could also

be created by manci!ation (). 7e have also met in 0ure cessio in connection ith

manumissio vindicta (), ado!tion (E) and the tutela legitima of omen (E9).

Being a civil mode of ac&uisition, in 0ure cessio as available only to Roman citi:ens

(5ominium e$ 0ure Fuiritum). 't !assed out in use before /ustinian, and for thisreason, it is not found in the 'nstitutes.

5#9

1(+


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18. Goo) ;aith:Dor usuca!io, there must be good faith. 'f a !erson finds himself in

!ossession as oner ithout civil la onershi!, this is usually because?

(a) he has ac&uired from a !erson ho had no title to convey the onershi!.

(b) he has ac&uired by a !rocess not a!t to make him civil oner.

The second situation usually arose hen a res manci!i as transferred by a !rocess of

traditio, not manci!atio (hich did not re&uire a formal ceremony). 't could also e$istin the case of bonitary onershi!.

To constitute good faith, the ac&uirer must honestly believe that the transaction has

made him oner at least by !raetorian title. This generally im!lies a belief founded on

a mistake of fact, not a mistake of la, i.e. the ac&uirer believed the !erson ith

hom he negotiated as the oner or had the right to alienate. Thus, ' can usuca!e if

' have bought from a !u!illus, not authorised by his tutor, B=T if ' thought

that he as !ubes (above legal age). The same ha!!ens if ' bought from an insane

!erson, thinking he is sane. 't as enough that !ossession originated in good faith. 't

as not necessary that the good faith remains throughout. Thus, if ' come into

!ossession of a thing in good faith, for e$am!le by inheriting it, and later ' start

having sus!icions that the thing as stolen, ' still have the right to usuca!e, eventhough the good faith did not remain throughout since ' had started to sus!ect.


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third !erson, because he could not truthfully assert that the thing belonged to him by

&uiritary title. But the !raetor !rovided a remedy in the 4ctio Cubliciana in rem,

hich alloed such !erson to recover the !ro!erty as if time had already run in his

favour.

The institution of usuca!io as available only to Roman citi:ens and only in res!ect

of Roman things susce!tible of Roman onershi! (dominium e$ 0ure Fuiritum). 't didnot a!!ly to !rovinces and to !rovincial land. 'n the !rovinces there e$isted different

rules knon as long time !rescri!tions. 7hat#s im!ortant to remember is that a

Roman citi:en, anyhere, ac&uired movables by the normal !rocess of usuca!io after

one year#s !ossession. (later this !eriod as e$tended as already said).

181. Other Modes of Acquisition by Civil a!: $roperty might %est in a person by

statutory title (lege). The le& $apia $oppaea# for e&ample# denied unmarried and

childless persons the right to ta'e as heirs or legatees and %ested the inheritance or

legacy in others. nother case of statutory title !as created by the constitution of

*+D. ,ere# a person !ho too' possession of a thing by %iolence# !hen he forfeited

it to the dispossessed o!ner# that thing became the latter-s o!nership throughstatutory title.

1+. 6)@-)icatio: This as another civil la title. Gere, one could become the

oner of a thing through a 0udge#s decision. The 0udge as directed to aard !ro!erty

in division among the interested !arties. The actions hen this ha!!ened ere

- (a) for division of !ro!erty oned in common.

- (b) for division of an estate vested in co-heirs.

- (c) for determining boundaries.

529

0. Tra)itio 52eli%ery9:

This means transfer of !ossession ith the conse&uence that the onershi! of the

thing transferred vests in the transferee.

The essential conditions of this mode of ac&uisition ere%

0>. (a) The thing must admit of delivery, and of ac&uisitions by delivery. This

includes in general all cor!oreal things, movable and immovable. 't e$cludesincor!oreal things hich do not admit of delivery (;*;), and e$cluded

before /ustinian, res manci!i, hich could not be ac&uired by this method

(8;).


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4ccording to the 'nstitutes, the Telve Tables !rovided that the !ro!erty in

the things sold and delivered did not !ass unless the !urchaser had !aid the

!rice to the vendor, or satisfied him in some other ay, as by finding a third

!arty ho !romises to !ay, or giving a !ledge. 'f the vendor relies on the

credit of the !urchaser, the thing immediately becomes the !urchaser#s

!ro!erty.

0(. (c) The transferor must intend to convey and the transferee must intend to

ac&uire the onershi! of the thing transferred. 3uch an intention e$ists hen

and only hen, tradition takes !lace for some 0ust cause, i.e there is 0ust title

(0ustus titulus). (). +ere tradition never transfers onershi!, but only if

sale or some 0ust cause !recedes, hich su!!lies the motive for the

tradition. But the cause need not, as in the case of usuca!io, e$ist

ob0ectively. 't is enough that it e$ists in the mind of the to !arties.

08.(d) The transferor cannot give hat he has not got. ' cannot transfer something of

hich ' am not the oner. Besides, hen onershi! is transferred it !assesto the transferee such as it as in the hands of the transferor? if for e$am!le,

the land as burdened, it !asses sub0ect to the servitudes. 'f servitudes ere

oed to the land hich as transferred, it !asses to the transferee together

ith the servitudes oed to it, and son on so forth.

0+. (e) There must be a !hysical transfer of !ossession or something hich in la is

e&uivalent. The old commentators distinguished traditio beteen real and

fictitious. Real tradition meant an actual handling over of the thing, so that

!ossession and onershi! are simultaneously transferred. The term

fictitious tradition includes various cases hich are a little out of the

ordinary. There are four modes and in fact, there is nothing fictitious about

them. They are%

(i) traditio brevi manu

(ii) constitutum !ossessorium

(iii) traditio longa manu

(iv) symbolical delivery (so-called)

0. The $o)es:

(i) Tra)itio &re%i man-% This takes !lace hen a !erson, ho is already in!ossession, but not as oner, is to retain !ossession as oner, e.g. ' have

lent you a thing for use, no ' give it to you. +y intention to transfer

onershi! cou!led ith yours to ac&uire onershi! converts the loan into

and makes you oner.

(ii) #onstit-t-m possessori-m% This is the o!!osite !rocess. ' am in

!ossession as oner. ' ish to give to you as a !resent but ' still ant to

kee! making use of it, and for this, ' am illing to !ay. 3o, ithout

!hysical transfer, you become the oner, hilst ' retain !ossession not as

oner but as hirer. ($% 4n old man giving onershi! of his house to his

carer- yet retaining the sue of the house, ith or ithout !ayment.


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(iii) Tra)itio lon!a man-% This takes !lace hen ' do not assume actual

!hysical control, but in order to make a thing mine, it is !laced in my sight

so that ' can take !ossession at !leasure (hen ' ant).

(iv) ym&olical )eli%ery 5so. 2onatio Inter Ci%os% 5onations had certain limitations by hich they had to

abide. These related to?

(a) the amount

(b) the !ersons to hom they might be made

(c) the circumstances in hich they might be revoked.

1. 5a9 6mo-nt% 4 le$ 6incia !rohibited gifts in e$cess of a certain amount e$ce!t

hen the gifts ere going to a ide circle of relatives and some other !rivileged!ersons. This la did not render the !rohibited gift invalid, or even !enalise it. 'n fact

the !raetor granted an e$ce!tio legis 6incia (an e$ce!tion). This e$ce!tion could be

!leaded by the doner if the donee claimed the gift in court.

The le$ 6incia had fallen into disuse before /ustinian, but as re!laced by legislation

re&uiring registration in court of gifts in e$cess of ; solidi. ater /ustinian amended

this to 8 solidi. 4n unregistered gift in e$cess of this amount as void to the e$tent

of the e$cess.

1". 5&9 Persons:The main restriction here as to !rohibit gifts beteen husband and

ife. By an oratio of 6aracalla, this became valid hen the donee survived the donor

and the doner at the time of his death ished the gift to take effect.


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1(. 5c9 Re%ocation% 'n the classical !eriod, gifts given by !atrons to freedmen ere

revocable at !leasure. =nder /ustinian, allgifts could be revoked on the ground of

serious acts of ingratitude on the !art of the donee. Ge also added that gifts by !atrons

to freedmen ere revocable if a child as born to the !atron, !rovided that he as

childless at the time of the gift.'f a gift as made ith a limitation or charge anne$ed to it, and the donee failed to

give effect, the gift might be recalled.

18. 4nother !eculiarity of donations as the so-called beneficium com!etentiae. The

donor could !lead this, if after having !romised to give something, he as sued. 'n

this case, the la !rovided that the doner as not bound to give hat he !romised to

the donee. The !ur!ose as to !revent the donor being ruined by his on generosity,

and also to !rotect the creditors.

1+. 2onatio $ortis #a-sa: This as a gift made in contem!lation of death either

generally or because of a !articular illness or ha:ard (e.g. 'f ' die, you take my car).This failed to take effect if the donor survived the donee (i.e. you died before me).

This kind of donation could be revoked inter vivos or by last ill, hich hoever,

could be e$!ressly renounced. 7hen the gift as !romised due to !articular condition

(e$% due to an illness of the donor), the gift could be e$!ressed to o!erate either as a

condition !recedent (sus!ensive), or as a condition subse&uent (resolutive). 'n the

first, the !ro!erty did not !ass, unless and until the condition as realised. 'n the

second case, it !assed immediately but might be reclaimed (or reverted) if the

condition as not realised.

1. Gifts mortis ca-sa an) le!acies: /ustinian says that gifts mortis causa are

similar to legacies.

3imilarities%

Both took effect in conse&uence of death.

'n general, !ersons ho could not make or take a legacy, could not make or

take a gift mortis causa.

Both ere !ost!oned to the claims of creditors (the creditors could take

before)

Both ere revocable

The !rovisions of the le$ Dalcidia (E8) !ermitting the heir to retain one-fourth

against legacies as e$tended to donations mortis causa.

5ifferences%

4 legacy im!lies a ill and acce!tance of the inheritance by an instituted heir.

4 gift as more direct because it involved no heir.

5;9


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5os as a gift given by the ife to the husband as her contribution toards the

e$!enses of the 0oint establishment. 't as made by the ife or by another !erson on

her behalf, usually before marriage and on the condition that the marriage takes !lace.

't could also be made or increased after marriage.

4 dos is either given, declared or !romised. These methods are distinguished as dotis

datio, dotis dictio and dotis !romisso res!ectively. 5otis datio includes any mode ofconveyance hich vested the !ro!erty in the husband. 5otis dictio as a verbal

contract a!!licable only in s!ecial circumstances. 5otis !romisso as a !romise to

constitute a dos.

'n the course of legal history, the notion of dos as !rofoundly changed. 7e may

distinguish beteen three !eriods?

(i) The !re-classical !eriod

(ii) The classical !eriod

(iii) /ustinian#s legislation

(i) The Cre-classical !eriod% 'f the oman as sui 0uris and married in manus

marriage, everything that belonged to her vested automatically in herhusband and as absorbed in his estate.


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with the wifeDs consent. By the same constitution, he fused the actions of

sti!ulation and the other action mentioned above, but retaining most of

their advantages. The reformed action as knon as an actio e$ sti!ulato.

The ife as given a tacit hy!othec (;E) over all her husband#s dos to

secure the restoration of the dos, and the husband had a similar hy!othec

over the !ro!erty of the ife or her relations to ensure that the dos asassigned to him in terms of the marriage contract. The husband as liable

to give com!ensation if dotal !ro!erty had been transferred ithout the

ife# s consent, or damaged because of his failure to take good care of it as

if it ere his on. 4s regards the husband#s retention of !art of dos hen

he as to restore to the ife, there ere no longer the retentions of the

classical age (i.e. children, misconduct, e$!enses). Goever, he could

recover the necessary e$!enses, and useful e$!enses could be recovered in

an actio mandati.

'f, as often ha!!ened, the movables ere !art of the dos, the husband as

liable for the estimated value, and not for the s!ecific ob0ects. Ge as

anserable, hatever ha!!ened to the !ro!erty. The general result of/ustinian#s legislation as that the dos alays returned to the donor or to

the ife or he heirs e$ce!t that if the ife divorced her husband not for a

!ermitted cause, she forfeited the dos for the benefit of the husband or of

the husband and the children. Thus, e have seen that all through this long

course of develo!ment, the husband as at first substantially and alays

formally the oner of the dos.

IC: ,at-ral $o)es of 6c7-isition:

1+.7e !ass mo to the modes of ac&uisition by natural la.

The main modes are?

569 *cc-patio

5B9 Thesa-r-s

5#9 6ccessio

529 pecificatio

5E9 Perception an) eparation of ;r-its

569

1+". *cc-patio%

This means taking into !ossession of a res nullius ith the intention of becoming

oner. The folloing are the !rinci!al cases?

5i9 ild beasts, birds and fish

5ii9 things taken from the enemy

5iii9 !recious stones, gems and things found on the sea-shore

5i%9 unoccu!ied islands in the sea5%9 res derelictae % things abandoned by their former oner


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1+(


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This is the !rocess by hich a !rinci!al thing attaches to itself an accessory. Thus, the

oner of the !rinci!al thing becomes the oner of the accessory. The !rinci!al thing

may be an immovable or a movable. The accessory may have been !reviously oned

or unoned (res nullius). The accession may have arisen by a natural !rocess, by a

human agency, or both.

10. 'n the case of accession of a movable to a movable, the &uestion could be raised

as to hich is the !rinci!al. =sually the anser as obvious enough de!ending on the

si:e and nature of the things involved. 4 hand added to a mutilated statue is an

accessory. 'f the accessory as in this case could be detached, and through a force

ma0eur, it as detached and it recovered its original character, it reverted to its

original onershi!. 3o if the hand !reviously belonged to me, then it as stuck to the

statue, and later through the ind, the hand as detached again, then that hand

retuned to my onershi!. 'f the ind hadn#t se!arated them, then ' could file an

action asking for it to be removed. 'f this as im!ossible, then ' could claim

com!ensation.

The 'nstitutes give many illustrations of accessio. They can be arranged under thefolloing headings.

(a) natural increment

(b) alluvion

(c) islands in rivers

(d) building

(e) !lanting and soing

(f) artificial accession

(g) mi$ing of solids and li&uids

11. 5a9 ,at-ral Increment:The oner of the female !arent is the oner of the

offs!ring. The same a!!lies to the offs!ring of female slaves.

1. 5&9 6ll-%ion% 7hat a river adds to your land becomes yours by alluvion.

4lluvion means a slo increase hen the river sloly through silt, soil etc, increases

your !ro!erty. This !rocess has to be so slo that you can#t recall ho much has been

added at any !articular moment in time. 'f then on the other hand, the violence of the

river has carried a si:eable !iece of someone else#s land and added it to your on,

then that land still belongs to it !revious oner. =nless of course, that !iece of land

has been there for so long that it has adhered to your land, and the trees have stuck

roots to it, then that land become yours. 4lluvion does not a!!ly to lands granted bythe state and defined by boundaries.

1>. 5c9 Islan)s in ri%ers% 4n island may come into e$istence in three ays.

by the river diving its channel, creating a !iece of land beteen its to arms

if !art of the river is left dry

hen an island forms on the ater#s surface.

'n the first case, there is no change of onershi!. 'n the other to cases, one needs to

consider the !osition of the island in the stream and hether the ri!arian oners have

right of alluvion.

1. /ustinian says that if the island is in the middle of the river, it belongs to theri!arian oners on the to sides. 'f the island is found on one side or the other, it


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belongs to the oner of the corres!onding bank of the river. 'f the ri!arian oners

have no right of alluvion, then the island is a res nullius and belongs to the first

occu!ant.

1". 'f the river leaves its bed and flos in a ne channel, then the old bed belongs to

the ri!arian oners in the same ay as an island formed in the middle of the river.The ne channel becomes !ublic like the river itself, 'n then the river shifts back to

its old bed, the ne bed in turn belongs to the !ro!rietors of either bank.

1(. 5)9 B-il)in!s:Aormally, if a man builds a house, he ons the land and the

material. But this is not alays so. 4 for e$am!le, may build on his land ith B#s

material. 4 may also build on B#s land ith 4#s material. 'n both cases, the result is

the same. The building goes ith the land and is the !ro!erty of the oner of the land.

Goever, there is no change in the onershi! of the material. 7hile the building

stands, hoever, the oner of the material may not re&uire it to be brought don. 'f

the building fell, he could claim his material back. The la alloed the oner of the

material another alternative- to sue for the value of the material. 'f the material hadbeen originally stolen from him, he could sue for double damages.

18. 'f a man builds u!on land hich he knos does not belong to him, i.e. he

!ossesses in bad faith, the 'nstitutes says that he loses the materials, because he is

assumed to have !arted ith them by his on volition. =nder /ustinian, if he as able

to !rove that he had good faith, i.e. that he believed the land to belong to him, he

could then recover the materials in case of demolition. Durther, in the later la,

anyone ho had built on another land, even if he kne that it as not his, could

remove the building if this did not cause damage to the !ro!erty.

1+. 5e9 Plantin! an) sowin!: 'f ' ere to im!lant seeds in another man#s field, the

cro!s or fruits ill belong to the other man ho ons the soil !rovided that the seeds

have struck roots. =ntil it has done so, there is no change of onershi!. 4lso if my

tree has driven its roots into someone else#s land, then that tree becomes his.

5f9 6rtificial accession% 7ritten characteristics, even though they may be gold

letterings, are accessories to the !archment or !a!yrus on hich they are ritten.

This, hoever, does not a!!ly to !aintings. Gere, the contrary ha!!ens. 7hen one

!aints on a ooden canvas belonging to someone else, he becomes the oner of the

canvas as ell. The canvas is an accessory to the !ainting. The !ainter, hoever, has

to !ay for the canvas.

5!9 $i3in! of soli)s an) li7-i)s% 7hen solids mi$, there ill be no change of

onershi!. 'f my shee! get mi$ed ith yours, the shee! ill remain mine. 'f li&uids

are inse!arably mi$ed, so that one is absorbed in the other, it is a case of accessio.

#ommi3tio is hen ob0ects are gathered together, but the onershi! of their

individuality remains. $% ' have 8 bottles of ine, you have ; bottles- e !lace

them all in a ine rack. 6ommi$tio is hen there isn#t fusion (!hysically), but legally

the things concerned are treated as one. 3o, in commi$tio, the things can be !hysically

se!arated.


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#onf-sio is hen to se!arate things belonging to to se!arate orders get united.

They lose their individuality and become one thing, for e$am!le, having a mi$ture of

ines. Gere, the situation is different from accessio. ven though the ob0ect becomes

one, onershi! is still divided beteen all of the oners ho oned !art of the li&uid

hich is mi$ed. The mi$ture is oned in common in !ro!ortion to the value of the

com!onent !arts.

529

1. pecificatio: This is the name given to the !rocess of bringing into e$istence a

thing of a ne kind out of e$isting material (there is man#s ork involved). $% ine

out of gra!es, shi! out of timber, goblet out of gold. Ao ho has the onershi! of

the ne thing coming into e$istence@ The !erson ho oned the original material

later transformed into something else, or the !erson ho orked and transformed the

material@ The 3abinians decided in favour of the oner of the material, becauseithout the material the !roduct could not have e$isted. The Croculians !referred the

creator of the ne s!ecies. /ustinian ado!ted an intermediate !osition. 'f the !roduct

could be reverted to its original state, there as no change of onershi! (e$% the

goblet could be melted into a lum! of gold). 'f not, the s!ecificator became the

oner (e$% the ine could not be turned into gra!es). 'n this case, therefore,

s!ecificatio could be a mode of ac&uisition.

7hat if the material as stolen@

'f the material as stolen, and someho ended u! in the hands of a orker ho

transformed it ithout knoing that the material as stolen, then he as the rightful

oner of the ob0ect.

5E9

00. Perception an) eparation of ;r-its% 'n the term fruits, e include%

the natural and !eriodic increment of the animal and vegetable kingdoms

the !roducts of cultivated lands and gardens

rents and similar !rofits derived from !ro!erty

Gere, e are referring to fruits in the second sense.

The oner in !ossession of the land as entitled to the fruits because he as entitled

to the land.There could be usufruct, hereby, a !erson though not the oner of the land, had the

right to en0oy the fruits of the land.

There as also the &uestion of good faith or bad faith hen one as in !ossession of

a land. 'f ' !ossess (not on) an orchard (or a land) in good faith, then ' am the

rightful oner of the fruit. But if ' !ossess in bad faith, then the oner can come and

not only take the orchard (hich belongs to him), but also demand a sum e&uivalent

to the fruits hich ' have en0oyed during the time ' !ossessed the orchard.

C. #ompetence to 6lienate:


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+. /ustinian considers some e$ce!tional cases in hich oners may not alienate

their on !ro!erty. The to most notable cases ere%

the husband as forbidden to alienate dotal immovables

the !u!illus as inca!able of alienating any !ro!erty hatsoever ithout the

authority of his tutor.


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mancipatio and in ure cessio# for by these methods nobody could ac"uire e&cept the

person ta'ing part in the ceremony.) 7ith a constitution of m!eror 3everus, one

could ac&uire through an agent, not only if he kne of the ac&uisition but also if he

didn#t. Ge could become oner imme)iatelyif the !erson ho delivered the thing to

the agent as the oner, or else, by usuca!io or long time !ossession.

CII. er%it-)es:

>"(. 6ll ser%it-)es ha%e certain thin!s in common%

(a) They are real rights !rotected by a real action called the actio confessoria,

hile another action called the actio negatoria, is available to the oner of

!ro!erty ho ishes to take active ste!s to challenge another !erson#s claim

to servitude as regard the !ro!erty.

(b) They are incor!oreal things and therefore, are the sub0ect of s!ecial rules as to

creation, e$tinction and other res!ects.(c) They e$ist over the !ro!erty of another for the benefit of a thing or of a

!erson. Therefore, in case of !raedial servitudes, the burden im!osed on one

!ro!erty must be for the benefit attached to another !ro!erty. 4nd in the case

of !ersonal servitudes, these last only for as long as the !erson in hose

favour they are created, lives and retains his status. Cersonal servitudes are

thus influenced by death or by ca!itis deminutio. 4lso, since they are !ersonal,

they cannot be transferred to another !erson.

CIII. Prae)ial 5Real9 er%it-)es:

Craedial servitudes may be?

Rustic

=rban

>8+. R-stic er%it-)es% These are those servitudes a!!ertaining to the

countryside, and satisfying the needs of agricultural and !asture land. The !rinci!al

rustic servitudes are the right of !assage over another man#s land, either on foot, on

horse or by cart. The latter led to the right to have a metalled track here the road

turned. There as the right to lead ater over another man#s land. To the same head

may also be added the right of !asture, of digging sand, of e$cavating and burning

lime, on someone else#s land. There as also the negative right im!eding myneighbour not to dig ells on his land so as not to diminish my ater su!!lies.

Rustic servitudes could come into e$istence by contract or through usuca!io, i.e.

through the constant use of a !assage, ' ac&uire the right (res incor!orales) to use that

!assage.

>. r&an er%it-)es% These are those servitudes a!!ertaining to the city. The

!rinci!al urban servitudes ere%

my right to have a drain through your land serving my house

servitude of su!!ort for a building

my right to drive a balk of timber into my neighbour#s land

right to discharge rainater over a neighbour#s land


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right that rainater shall not be received or discharged (in different circumstancesthan the !revious e$am!le).

rights of light and vie

my right to im!ede you from building or !lanting a tree in a ay that ould

interfere ith my access of light

my right to a !leasing and uninterru!ted vie (least recognised because it is not amatter of necessity but a matter of delight)

5r. +ifsud Bonnici says that servitudes in urban tenements came from E sources-

ater, light and alls. 'n fact, a look at the above list ill confirm this. 4s regards

servitudes tied ith alls, he adds that hen you have the right to use your

neighbour#s all, you have to !ay half of the e$!enses incurred in constructing the

all.

1. 3o far it has been assumed that rustic servitudes are a!!urtenant to land, hilst

urban servitudes are a!!urtenant to a house. >et this distinction is not alays clear,

for should e consider a right of ay a!!urtenant to a house as a rustic or an urbanservitude@ There are various o!inions, as the te$ts give no consistent anser to this

&uestion.

Aow Prae)ial er%it-)es were #reate) an) E3tin!-ishe):

. Prae)ial ser%it-)es were create) &y si3 metho)s%

() +anci!atio or 'n /ure 6essio

(;) Reservation

(E) Testament

(*) a!se of Time

(8) Fuasi HTradition

() 4d0udicatio

() +anci!atio or 'n /ure 6essio % 'n the time of 2aius, rustic servitudes ere

created by manci!ation or by in 0ure cessio, hilst urban servitudes ere

created only by in 0ure cessio. These modes a!!lied to 'talian soil. The !act

settled the term of the servitude. There ould be the !romise to give effect to

it, often combined ith a !enalty for failure to do so.

(;) Reservation % 4n oner might alienate land on the condition that it ould beservient to another of his lands.

(E) Testament % ' might give a legacy of a servitude, thus charging the land in the

hands of my heir, or give a legacy of the land ith reservation of a servitude,

thus entitling my heir to its e$ercise? or finally, ' might leave the land to one

!erson, and the servitude to another.

(*) a!se of Time % 3ervitudes could not, strictly s!eaking be ac&uired by usuca!io

because they did not admit of !hysical !ossession, but it seems that in the

early la, there as no distinction beteen onershi! and servitude, and thus

servitudes could be ac&uired by usuca!io.


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(8) Fuasi-Tradition % 'n the later em!ire, if the oner of the land ac&uiesced (i.e.

com!lied ithout !rotest), in the e$ercise of a servitude by a neighbour, the

neighbour ac&uired the servitude by a kind of tradition. 'f a document

recorded the transaction, the document ould in itself be sufficient to convey

the right.

() 4d0udicatio % 't as com!etent for a 0ude$ to declare a servitude in favour of

any of the !arties in litigation.

>. Prae)ial er%it-)es were e3tin!-ishe) &y these fo-r metho)s:

() 3urrender or Renunciation

(;) +erger (confusio)

(E) Aon-user for the statutory !eriod

(*) Term or condition

() 3urrender or Renunciation % 'n the older la this as effected by in 0ure cessio,

hilst in the later la, a servitude could be e$tinguished by mere agreement.

(;) +erger (confusio)% 'f the onershi! of both !ro!erties ended u! in the same

hands, then the servitude as e$tinguished, for it asn#t !ossible to have a

servitude over one#s on land.

(E) Aon-user for the statutory !eriod % The !eriod of use re&uired as the same as

that re&uired for onershi!? the !eriod varied as time ent by.

(*) Term or condition % 4 servitude might come to an end by e$!iry of the time for

hich it as constituted or by the effect of a resolutive condition. Gere, e

see a de!arture from the general &uality of !er!etuity hich is a general

characteristic of !raedial servitudes.

IF: Personal er%it-)es:

. The !ersonal servitudes are%

519 s-fr-ct59 s-s

5>9 Aa&itatio

59 *perae er%-m

"


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() 5eath or ca!itis deminutio. 'f for e$am!le, the usufruct as for ten years, and

death came before the end of the term, death !ut an end to it.

R-les relatin! to er%it-)es in !eneral:

".

() The use of the !raedial servitude must be granted to the land. 3o the utility is

not bound by the !ersonal utility of the oner.

(;) The !raedial servitude is for an indefinite !eriod. There is a beginning but no

end. Thus, the thing over hich a right is e$ercised must be ca!able of

!er!etual duration.

(E) The servitude is bound to the !ro!erty.

(*) The oner or those ho have a legitimate right can make the use of the

servitude.

(8) The servitude must alays be to bear to something or to abstain from doingsomething, but AKR to do something. Thus, the servitude is !assive.

() The oner of a land can never have a right of servitude over his on land.

() The servitude is indivisible. ($. >ou cannot build a !ro!erty in !assage

because you ould be dividing the servitude.)

(9) There cannot be a servitude of a servitude.

(I) Remedies. The la gave for the !rotection of servitudes remedies the same or

similar given for the !rotection of onershi!. The actio confessoria asserting a

servitude as kind of vindication. Dor the denial of a servitude, there as a

corres!onding negative action (actio negatoria).

F. *ther J-ra in Re 6liena:

4) m!hyteusis%

Roman Law of Property (2)

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