1 11 Ownership2

EXLIBRIS

MÉLÈZE MODRZEJEWSKI OWNERSHIP Acquisition and Loss thereof

JLAlonso&JUrbanik, The Principles of Roman Law: Unit 1:11.2 ACQUISITION OF POSSESSION ACQUISITION OF POSSESSION

➤ aaaaaa ACQUISITION OF POSSESSION

➤ aaaaaa ➤ cccccc ACQUISITION OF POSSESSION

➤ animus ➤ corpus ➤exception: acquisition through alieni iuris (but for stolen things) ACQUISITION OF POSSESSION

D. XLI 2.18.1 (Celsus): If you hand an object over to an insane person, whom you reckon to be sane, you cease to possess even if he does not become the possessor: it is enough to get rid of possession even if you do not convey it. It would be ridiculous to say that someone wants to get rid of possession only when he wants to convey it to someone else, because if he conveys he wants to get rid of it, and hence he conveys it. ACQUISITION OF POSSESSION ACQUISITION OF POSSESSION D. XLI 2.34 (Ulp. 7. disp.). If you convey to me the mere possession of the Cornelian Estate and I think it is the Sempronian Estate, and then get the Cornelian, I do not acquire possession if we disagree not only about the name but also the object. And so if we disagree about the object as well, do you cease to possess, as we dispose and change possession by mere will as Marcellus and Celsus write? I do not think that the one who is mistaken acquires possession, and so the one conveys possession does not loose it, as if giving up possession under a condition. ACQUISITION OF POSSESSION D. XLI 2.34 (Ulp. 7. disp.). If you convey to me the mere possession of the Cornelian Estate and I think it is the Sempronian Estate, and then get the Cornelian, I do not acquire possession if we disagree not only about the name but also the object. And so if we disagree about the object as well, do you cease to possess, as we dispose and change possession by mere will as Marcellus and Celsus write? I do not think that the one who is mistaken acquires possession, and so the one conveys possession does not loose it, as if giving up possession under a condition. ACQUISITION OF POSSESSION D. XLI 2.34 (Ulp. 7. disp.). If you convey to me the mere possession of the Cornelian Estate and I think it is the Sempronian Estate, and then get the Cornelian, I do not acquire possession if we disagree not only about the name but also the object. And so if we disagree about the object as well, do you cease to possess, as we dispose and change possession by mere will as Marcellus and Celsus write? I do not think that the one who is mistaken acquires possession, and so the one conveys possession does not loose it, as if giving up possession under a condition.

Why does Ulpian think that the mistaken purchaser does not acquire the possession? ACQUISITION OF POSSESSION D. XLI 2.34 (Ulp. 7. disp.). If you convey to me the mere possession of the Cornelian Estate and I think it is the Sempronian Estate, and then get the Cornelian, I do not acquire possession if we disagree not only about the name but also the object. And so if we disagree about the object as well, do you cease to possess, as we dispose and change possession by mere will as Marcellus and Celsus write? I do not think that the one who is mistaken acquires possession, and so the one conveys possession does not loose it, as if giving up possession under a condition.

Why does Ulpian think that the mistaken purchaser does not acquire the possession? How could we argue that the alienor looses the possession? ACQUISITION OF POSSESSION D. XLI 2.34 (Ulp. 7. disp.). If you convey to me the mere possession of the Cornelian Estate and I think it is the Sempronian Estate, and then get the Cornelian, I do not acquire possession if we disagree not only about the name but also the object. And so if we disagree about the object as well, do you cease to possess, as we dispose and change possession by mere will as Marcellus and Celsus write? I do not think that the one who is mistaken acquires possession, and so the one conveys possession does not loose it, as if giving up possession under a condition.

Why does Ulpian think that the mistaken purchaser does not acquire the possession? How could we argue that the alienor looses the possession? What does Ulpian say? ACQUISITION OF POSSESSION D. XLI 2.34 (Ulp. 7. disp.). If you convey to me the mere possession of the Cornelian Estate and I think it is the Sempronian Estate, and then get the Cornelian, I do not acquire possession if we disagree not only about the name but also the object. And so if we disagree about the object as well, do you cease to possess, as we dispose and change possession by mere will as Marcellus and Celsus write? I do not think that the one who is mistaken acquires possession, and so the one conveys possession does not loose it, as if giving up possession under a condition.

Why does Ulpian think that the mistaken purchaser does not acquire the possession? How could we argue that the alienor looses the possession? What does Ulpian say? If the 3rd party acquires the said estate, who is its possessor? ACQUISITION OF POSSESSION D. XLI 2.34 (Ulp. 7. disp.). If you convey to me the mere possession of the Cornelian Estate and I think it is the Sempronian Estate, and then get the Cornelian, I do not acquire possession if we disagree not only about the name but also the object. And so if we disagree about the object as well, do you cease to possess, as we dispose and change possession by mere will as Marcellus and Celsus write? I do not think that the one who is mistaken acquires possession, and so the one conveys possession does not loose it, as if giving up possession under a condition.

➤ derivative ➤ formal: in iure cessio, mancipatio ➤ informal: traditio ➤ original ➤ usucaption (prescription), ➤ occupation, occupatio ➤ thesaurus, thesaurus ➤ accession, accessio ➤ specifcation, specifcatio usucapio ➤ fruits, fructus NEMO PLUS IURIS AD ALIUM TRANSFERRE POTEST QUAM IPSE HABE(RE)T MANCIPATIO G. I 119 Mancipation … is an imaginary sale, belonging to that part of the law which is peculiar to Roman citizens, and consists in the following process: in the presence of not fewer than fve witnesses, citizens of Rome above the age of puberty, and another person of the same condition, who holds a bronze balance in his hands and is called the balance holder, the alienee holding a bronze ingot in his hand, pronounces the following words: This man I claim as belonging to me by right Quiritary (hunc ego hominem meum esse ex iure Quritium aio) and be he (or, he is) purchased to me by this ingot and this scale of bronze. He then strikes the scale with the ingot, which he delivers to the mancipator as by way of purchase money. MANCIPATIO G. I 119 Mancipation … is an imaginary sale, belonging to that part of the law which is peculiar to Roman citizens, and consists in the following process: in the presence of not fewer than fve witnesses, citizens of Rome above the age of puberty, and another person of the same condition, who holds a bronze balance in his hands and is called the balance holder, the alienee holding a bronze ingot in his hand, pronounces the following words: This man I claim as belonging to me by right Quiritary (hunc ego hominem meum esse ex iure Quritium aio) and be he (or, he is) purchased to me by this ingot and this scale of bronze. He then strikes the scale with the ingot, which he delivers to the mancipator as by way of purchase money.

Abstract and formal act: conditions of validity MANCIPATIO G. 1.119 Mancipation … is an imaginary sale

Caroline Islands, the Isle of Yap MANCIPATIO G. 1.119 Mancipation … is an imaginary sale

USES:

Caroline Islands, the Isle of Yap MANCIPATIO G. 1.119 Mancipation … is an imaginary sale

USES: Mancipatio nummo uno

Caroline Islands, the Isle of Yap MANCIPATIO G. 1.119 Mancipation … is an imaginary sale

USES: Mancipatio nummo uno Solutio per aes & libram

Caroline Islands, the Isle of Yap MANCIPATIO G. 1.119 Mancipation … is an imaginary sale

USES: Mancipatio nummo uno Solutio per aes & libram Coëmptio fiduciae causa

Caroline Islands, the Isle of Yap MANCIPATIO G. 1.119 Mancipation … is an imaginary sale

USES: Mancipatio nummo uno Solutio per aes & libram Coëmptio fiduciae causa Emancipatio/Adoptio

Caroline Islands, the Isle of Yap MANCIPATIO G. 1.119 Mancipation … is an imaginary sale

USES: Mancipatio nummo uno Solutio per aes & libram Coëmptio fiduciae causa Emancipatio/Adoptio Mancipatio familiae

Caroline Islands, the Isle of Yap MANCIPATIO G. 1.119 Mancipation … is an imaginary sale

USES: Mancipatio nummo uno Solutio per aes & libram Coëmptio fiduciae causa Emancipatio/Adoptio Mancipatio familiae

Rabel: nachgeformtes Rechtsgeschaft

Caroline Islands, the Isle of Yap IN IURE CESSIO

G. I 24: Conveyance by surrender before a magistrate (in iure cessio) is in the following form: in the presence of some magistrate of the Roman people, such as a praetor, the surrenderee grasping the object says: This man I claim as belonging to me by right Quiritary (hunc ego hominem meum esse ex iure Quritium aio). Then the praetor interrogates the alienor whether he makes a counter-vindication, and upon his disclaimer or silence awards the thing to the alienee. This proceeding is called a statute-process; it can even take place in a province before the governor.

Abstract and formal act: conditions of validity

RES PRIVATAE res mancipi

G. I 120 By this formality (mancipatio) both slaves and free persons may be mancipated, and also such animals as are mancipable, namely, oxen, horses, mules, and asses: immovables also, urban and rustic, if mancipable, such as Italic lands and houses, are aliened by the same process.

Abstract and formal act: reasons of application Rituality & Publicity RES PRIVATAE res mancipi

Abstract and formal act: reasons of application Rituality & Publicity TRADITIO: TRANSFER causal and informal act: conditions of validity TRADITIO: TRANSFER causal and informal act: conditions of validity

➤ The alienor has to have right to alienate the object (the owner, guardian, pledgee) ➤ Object must belong to non mancipable objects TRADITIO: TRANSFER causal and informal act: conditions of validity

➤ The alienor has to have right to alienate the object (the owner, guardian, pledgee) ➤ Object must belong to non mancipable objects

➤ iusta causa traditionis – rightful cause of transfer TRADITIO: TRANSFER causal and informal act: conditions of validity

➤ The alienor has to have right to alienate the object (the owner, guardian, pledgee) ➤ Object must belong to non mancipable objects

➤ iusta causa traditionis – rightful cause of transfer

D. XLI 1.31. Paulus, On the Edict XXXI.: The mere delivery of an article does not transfer its ownership, for this takes place only where a sale or some other just cause precedes TRADITIO: TRANSFER causal and informal act: conditions of validity

➤ The alienor has to have right to alienate the object (the owner, guardian, pledgee) ➤ Object must belong to non mancipable objects

➤ iusta causa traditionis – rightful cause of transfer

D. XLI 1.31. Paulus, On the Edict XXXI.: The mere delivery of an article does not transfer its ownership, for this takes place only where a sale or some other just cause precedes

CAUSA: venditionis, donationis, dotis, solutionis, mutui TROUBLES WITH TRANSFER MISTAKE AS TO CAUSE OF TRANSFER D. XLI 1.36. Julianus, Digest XIII. When we agree as to object which is being conveyed, but dissent as to the causes for its transfer,

I do not understand why the transfer should not be valid; for example, if I think that I am obliged to transfer a tract of land to you in compliance with the terms of a will, and you are under the impression that I should do so by virtue of a stipulation. For if I pay you a sum of money for the purpose of making a donation of the same, and you think I intend to lend it to you, it is settled that the ownership will pass to you, and the fact that we differed with respect to the cause of giving and receiving it will be of no impediment. TROUBLES WITH TRANSFER

D. XII 1.18 pr. Ulpianus, Disputations I. If I give you money as a gift, and you accept it as a loan, Julianus says that it is not a gift; but we should consider whether it is a loan. I think, however, that it is not a loan, and that the money does not, as a matter of fact, become the property of the party who receives it, as he did so with a different opinion.

Yet, if he spends the money, although he is liable to a personal action for its recovery (condictio), he can, nevertheless, make use of an exception on the ground of fraud, because the money was expended in accordance with the wish of the party who gave it MISTAKE AS TO CAUSE OF TRANSFER D. XLI 1.36. Julianus, Digest XIII. When we agree as to object which is being conveyed, but dissent as to the causes for its transfer, I do not understand why the transfer should not be valid; for example, if I think that I am obliged to transfer a tract of land to you in compliance with the terms of a will, and you are under the impression that I should do so by virtue of a stipulation. For if I pay you a sum of money for the purpose of making a donation of the same, and you think I intend to lend it to you, it is settled that the ownership will pass to you, and the fact that we differed with respect to the cause of giving and receiving it will be of no impediment. MISTAKE AS TO CAUSE OF TRANSFER D. XII 1.18 pr. Ulpianus, Disputations I. If I give you money as a gift, and you accept it as a loan, Julianus says that it is not a gift; but we should consider whether it is a loan. I think, however, that it is not a loan, and that the money does not, as a matter of fact, become the property of the party who receives it, as he did so with a different opinion. Yet, if he spends the money, although he is liable to a personal action for its recovery (condictio), he can, nevertheless, make use of an exception on the ground of fraud, because the money was expended in accordance with the wish of the party who gave it TROUBLES WITH TRANSFER TROUBLES WITH TRANSFER

D. XLI 1.36 Iulianus libro 13 digestorum Cum in corpus quidem quod traditur consentiamus, in causis vero dissentiamus, non animadverto, cur inefcax sit traditio, veluti si ego credam me ex testamento tibi obligatum esse, ut fundum tradam, tu existimes ex stipulatu tibi eum deberi. Nam et si pecuniam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat proprietatem ad te transire nec impedimento esse, quod circa causam dandi atque accipiendi dissenserimus. MISTAKE AS TO CAUSE OF TRANSFER

D. XII 1.18 Ulpianus libro septimo disputationum pr. Si ego pecuniam tibi quasi donaturus dedero, tu quasi mutuam accipias, Iulianus scribit donationem non esse: sed an mutua sit, videndum. Et puto nec mutuam esse magisque nummos accipientis non feri, cum alia opinione acceperit. Quare si eos consumpserit, licet condictione teneatur, tamen doli exceptione uti poterit, quia secundum voluntatem dantis nummi sunt consumpti. TROUBLES WITH TRANSFER

D. XLIV 7.55. Javolenus, Epistles, Book XII. In all matters having reference to the transfer of ownership, the intention of both contracting parties must concur. And so be it a sale, be it a donation, be it a lease, or be it any other reason for the agreement, if the intention of both does not agree, what has been started shall not lead to an efective end.In omnibus rebus, quae dominium transferunt, concurrat oportet afectus ex utraque parte contrahentium: nam sive ea venditio sive donatio sive conductio sive quaelibet alia causa contrahendi fuit, nisi animus utriusque consentit, perduci ad efectum id quod inchoatur non potest.

Uniform intent of the alienor and alienee JUSTINIAN’S INSTITUTIONS: THE EFFECTS OF TRANSFER

IJust. II 1.40 Things are likewise obtained by us by natural law through transfer; for nothing more accords with natural equity than to confrm the desire of an owner to transfer his property to another. And, therefore, corporeal property, of every description whatever can be transferred, and as soon as delivery has been made by the owner of the same it is alienated

Per traditionem quoque iure naturali res nobis adquiruntur: nihil enim tam conveniens est naturali aequitati, quam voluntatem domini, volentis rem suam in alium transferre, ratam haberi. et ideo cuiuscumque generis sit corporalis res, tradi potest et a domino tradita alienatur. itaque stipendiaria quoque et tributaria praedia eodem modo alienantur. vocantur autem stipendiaria et tributaria praedia quae in provinciis sunt, inter quae nec non Italica praedia ex nostra constitutione nulla differentia est.

Uniform intent of the alienor and alienee

TROUBLES WITH TRANSFER TROUBLES WITH TRANSFER Glossa Nec enim sicut ad D. XLI 2.3.4 ➤ Responde proximam causam inspici, id est traditionem sive acquisitionem possessionis, non remotam, sc. causam, ex qua ft traditio – reply that the near cause should be inspected – that is the transfer or the acquisition of possession, and not the remote cause, that is the cause because of which the transfer is made.

Paulus, 54 ad ed: Ex plurimis causis possidere eandem rem possumus, ut quidam putant et eum, qui usuceperit et pro emptore, et pro suo possidere: sic enim et si ei, qui pro emptore possidebat, heres sim, eandem rem et pro emptore et pro herede possideo: nec enim sicut dominium non potest nisi ex una causa contingere, ita et possidere ex una dumtaxat causa possumus. TROUBLES WITH TRANSFER ➤ Causa proxima (causa acquirendi) – near cause ➤ for the property to pass it is enough that the parties agree that it should pass, yet the value may be claimed back by condictio, unless there is: ➤ Causa remota (causa retinendi) – remote cause ➤ (to keep the property, i.e. – there has to be a valid reason) ➤ Causa donandi, obligandi, solvendi CAUSAE GL. GLOSSA 41.2.3.4 NEC ENIM SICUT TRANSFER IN THE ROMANISTIC TRADITION

➤ ius commune: ➤ Titulus (causa – the ground of transfer: obligation) ➤ modus (way of transfer: act of disposition) ➤ (sale) Contract with double efect (Grotius, Pufendorf, Code civil and its derivatives: Italian, Spanish, Polish) ➤ obligation ➤ Transfer (with no need of physical handing over) ➤ Savigny (BGB): ‘transfer (real) contract’ Dinglicher Vertrag and principle of abstraction (the act of disposition, abstracted from the reason thereof). SAVIGNY AND JULIAN

➤ BBB B BBBB BBBBBBBBB BBB BBBBBBBBB ➤ ZZZ ZZZZZZZZZZZ ZZZ ZZZZZZZZZ ZZ eeeee eeeeeeeeeee eeeee eee eeeeeeeeeeeee eee eee eeeeeeeeee eee SSSSS SSS SSSSSSSS SSSSSSSS SSS bbbbb bbbbbbb bbbbb bbbbb bbb bbb EEEEEEEE EEEEEEEEE EEEEE ➤ III III IIIIIIII II IIIIII III IIIIII ss ssssss sss ssssssss ssss sss ÜÜÜÜÜÜÜÜ ÜÜÜ ÜÜÜÜÜÜÜÜÜ

‘conveyance (real) contract’ – dinglicher Vertrag SAVIGNY AND JULIAN

➤ BGB § 929: “Einigung und Übergabe” ➤ For the transfer of the ownership of a movable thing, it is necessary that the owner delivers the thing to the acquirer and both agree that ownership is to pass. ➤ If the acquirer is in possession of the thing, agreement on the transfer of the ownership sufces.

‘conveyance (real) contract’ – dinglicher Vertrag SAVIGNY AND JULIAN

Abstraktionsprinzip

‘conveyance (real) contract’ – dinglicher Vertrag Acts In trial

The cause Causal has to be proved

The cause rebuttable ‘weakly’ is presumed presumption abstract iuris tantum

‘strictly’ The cause conclusive abstract is presumed irrebuttable iuris et de iure presumption

Abstract transactions (usually formal) vs. Causal transactions Acts In trial

The cause Causal traditio has to be proved

The cause rebuttable ‘weakly’ is presumed presumption abstract iuris tantum

‘strictly’ The cause conclusive abstract is presumed irrebuttable iuris et de iure presumption

Abstract transactions (usually formal) vs. Causal transactions Acts In trial

The cause Causal traditio has to be proved

The cause rebuttable ‘weakly’ stipulatio is presumed presumption abstract iuris tantum

‘strictly’ The cause conclusive abstract is presumed irrebuttable iuris et de iure presumption

Abstract transactions (usually formal) vs. Causal transactions Acts In trial

The cause Causal traditio has to be proved

The cause rebuttable ‘weakly’ stipulatio is presumed presumption abstract iuris tantum

‘strictly’ The cause conclusive mancipatio abstract is presumed irrebuttable iuris et de iure presumption

Abstract transactions (usually formal) vs. Causal transactions USUCAPIO ‘USUCAPTION’= PRESCRIPTION REQUIREMENTS: LAW XII TABLES (T. VI)

➤ 3. usus auctoritas fundi biennium est, – ceterarum rerum omnium – annuus est usus (Cic., top., 4, 23 ; Cf. Cic., p. Caec., 19, 54 ; Gaius, 2, 42). ➤ 4. ADVERSUS HOSTEM AETERNA AUCTORITAS [ESTO] (Cic., de of., 1, 12, 37). ➤ 5. lege XII tab. cautum est, ut si qua nollet eo modo (usu) in manum mariti convenire, ea quotannis trinoctio abesset atque eo modo cuiusque anni interrumperet (Gaius, 1, 111 ; Cf. Gell., 3, 2, 13). REQUIREMENTS: LAW XII TABLES (T. VI)

➤ 3 : For an estate auctoritas two years. ➤ 4 : Against a foreigner, auctoritas everlasting. ➤ 5 : <<>> REQUIREMENTS: LAW XII TABLES (T. VI)

➤ 3 : For an estate auctoritas two years. ➤ 4 : Against a foreigner, auctoritas everlasting. ➤ 5 : <<>>

TIME USE REQUIREMENTS: LEX ATINIA

➤ early II cent. B.C. ➤ Quod subruptum erit, eius rei aeterna auctoritas esto, . ➤ What is taken by force, of this thing there shall be perennial auctoritas

TIME USE REQUIREMENTS: LEX ATINIA

➤ early II cent. B.C. ➤ Quod subruptum erit, eius rei aeterna auctoritas esto, . ➤ What is taken by force, of this thing there shall be perennial auctoritas

TIME USE RES HABILIS REQUIREMENTS: LEX ATINIA ➤ D. XLI 3.4.6: (Paul, Edict LIV ): The Atinian Law provides that stolen property cannot be acquired by usucaption, unless it is restored to the control of the person from whom it was stolen; and this must be understood to mean that it must be restored to the owner, and not to him from whom it was secretly taken. Therefore, if property is stolen from a creditor to whom it was lent or pledged, it should be returned to the owner. ➤ D. XLI 3.1.21. If a debtor steals anything given by him in pledge, and sells it, Cassius says that it can be acquired by usucaption, because it is considered to have come under the control of the owner who pledged it, although an action for theft can be brought against him. I think that this opinion is perfectly correct. TIME USE REQUIREMENTS: LEX ATINIA ➤ D. XLI 3.4.6: (Paul, Edict LIV ): The Atinian Law provides that stolen property cannot be acquired by usucaption, unless it is restored to the control of the person from whom it was stolen; and this must be understood to mean that it must be restored to the owner, and not to him from whom it was secretly taken. Therefore, if property is stolen from a creditor to whom it was lent or pledged, it should be returned to the owner. ➤ D. XLI 3.1.21. If a debtor steals anything given by him in pledge, and sells it, Cassius says that it can be acquired by usucaption, because it is considered to have come under the control of the owner who pledged it, although an action for theft can be brought against him. I think that this opinion is perfectly correct. TIME USE RES HABILIS REQUIREMENTS: CLASSICAL LAW – ACTIO PUBLICIANA

Let Caius Aquilius be judge. If Plaintiff has bought the slave discussed upon and the possession thereof has been transferred to him so that he would have become owner according to the law of the Quirites had a year elapsed, and …. ACTIO PUBLICIANA

(Legal) TITLE ACTIO PUBLICIANA

(Legal) TITLE POSSESSION ACTIO PUBLICIANA

(Legal) TITLE POSSESSION Corpus Animus ACTIO PUBLICIANA

(Legal) TITLE POSSESSION TIME Corpus Animus ACTIO PUBLICIANA

(Legal) TITLE POSSESSION TIME GOOD FAITH Corpus Animus ACTIO PUBLICIANA

(Legal) TITLE POSSESSION TIME GOOD FAITH Corpus Animus

LEX ATINIA RES HABILIS REQUIREMENTS : CLASSICAL LAW

(Legal) TITLE

GOOD FAITH

Usucaption in bad faith? cf. Polish civil code REQUIREMENTS : CLASSICAL LAW

(Legal) TITLE ➤ objective condition

GOOD FAITH

Usucaption in bad faith? cf. Polish civil code REQUIREMENTS : CLASSICAL LAW

(Legal) TITLE ➤ objective condition ➤ Cf. Just cause of conveyance:

GOOD FAITH

Usucaption in bad faith? cf. Polish civil code REQUIREMENTS : CLASSICAL LAW

(Legal) TITLE ➤ objective condition ➤ Cf. Just cause of conveyance: ➤ As buyer, as legatee, as recipient of a gift

GOOD FAITH

Usucaption in bad faith? cf. Polish civil code REQUIREMENTS : CLASSICAL LAW

(Legal) TITLE ➤ objective condition ➤ Cf. Just cause of conveyance: ➤ As buyer, as legatee, as recipient of a gift ➤ Titulus putativus? GOOD FAITH

Usucaption in bad faith? cf. Polish civil code REQUIREMENTS : CLASSICAL LAW

(Legal) TITLE ➤ objective condition ➤ Cf. Just cause of conveyance: ➤ As buyer, as legatee, as recipient of a gift ➤ Titulus putativus? GOOD FAITH

Usucaption in bad faith? cf. Polish civil code REQUIREMENTS : CLASSICAL LAW

(Legal) TITLE ➤ objective condition ➤ Cf. Just cause of conveyance: ➤ As buyer, as legatee, as recipient of a gift ➤ Titulus putativus? GOOD FAITH ➤ subjective condition

Usucaption in bad faith? cf. Polish civil code REQUIREMENTS : CLASSICAL LAW

(Legal) TITLE ➤ objective condition ➤ Cf. Just cause of conveyance: ➤ As buyer, as legatee, as recipient of a gift ➤ Titulus putativus? GOOD FAITH ➤ subjective condition ➤ Mala fdes superveniens non nocet – Bad faith that comes up (later) does not harm

Usucaption in bad faith? cf. Polish civil code USUCAPTIO RES HABILIS, TITULUS, POSSESSIO, TEMPUS, FIDES USUCAPTABLE THING, TITLE, POSSESSION, TIME, (GOOD) FAITH USUCAPIO – A CASE

Aulus deposited his precious marble statue with Publius. When the latter died, his heir Marcus unaware of the deposit sold and transferred the marble to Gaius. A year later Aulus visited Gaius’s house and recognised the ornament. Will he get it back? USUCAPIO – A CASE

Aulus pledged a cow to Gaius to secure repayment of 1000 denarii he had borrowed. A few nights later the debtor broke into Gaius’ cow-shed and led his cow away. He sold and handed it over to Marcus on the following market day. What is the legal standing of the purchaser? USUCAPIO – A CASE

D XLI 3.4.6 (Paul, 54 on the Edict) The Atinian Law provides that stolen property cannot be acquired by usucaption, unless it is restored to the control of the person from whom it was stolen; and this must be understood to mean that it must be restored to the owner, and not to him from whom it was secretly taken. Therefore, if property is stolen from a creditor to whom it was lent or pledged, it should be returned to the owner. ORIGINAL MODES OCCUPATION And its conditions

Res nullius Abandonment – and its consequences

Res hostium

FRUITS/PRODUCE

FRUITS FRUITS/PRODUCE

FRUITS

Separation vs. Perception FRUITS/PRODUCE

FRUITS

Separation vs. Perception Possessor in Good Faith Detentor with Right to Fruits FRUITS/PRODUCE

Fruits/Produce FRUITS

Separation vs. Perception Possessor in Good Faith Detentor with Right to Fruits FRUITS/PRODUCE

Aulus leased his date grove to Lucius. Lucius collected dates, put them into sacs which he left at the bottom of the palms overnight. The next morning the fruit disappeared. It turned out it had been taken by Marcus. Who may proceed to vindicate them and why? FRUITS/PRODUCE

Titius had Marcus’ slave-girl in usufruct. The woman became pregnant and bore a male child. Being certain that he is the little boy’s owner, Titius sold him to Gaius. What is the latter’s legal standing and why? FRUITS/PRODUCE

D. VII 1.68: Ulpianus, On Sabinus, Book XVII. The question was raised in ancient times whether the issue of a female slave belonged to the usufructuary? The opinion of Brutus prevailed, namely, that the usufructuary had no right to it, as one human being cannot be considered as the product of another; and for this reason the usufructuary cannot be entitled to a usufruct in the same. If, however, the usufruct was left in the child before it was born, would he be entitled to it? The answer is that since offspring can be bequeathed, the usufruct of it can be also. (1) Sabinus and Cassius are of the opinion that the increase of cattle belongs to the usufructuary. (2) It is evident that the person to whom the usufruct of a flock or a herd is bequeathed, must make up any loss out of the increase, that is to say, replace those which have died MIXING THINGS: COMMIXTIO

D. VI 1.5. pr. 5. Ulpianus, On the Edict, Book XVI. Pomponius also says that where grain belonging to two persons was mixed without their consent, each one of them will be entitled to an action in rem for such an amount of the heap as appears to belong to him; but, where the grain was mingled with their consent, it will then be held to be in common, and an action for the division of property owned in common will lie. MIXING MONEY MIXING MONEY

D. XLVI 3.78 . Javolenus, On Cassius, Book XI.When money belonging to another is paid without the knowledge or consent of the owner, it still continues to be his property. If it is mixed with other money, so that it cannot be separated, it is stated in the Books of Gaius that it will belong to the person who receives it; so that an action of theft will lie in favour of the owner against him who paid the money. ➤ Which mode of acquisition is discussed in these sources? MIXING MONEY

➤ Gaius mistakenly sowed grain into the abandoned feld of Aulus, to who will the wheat belong and why? ➤ what, if Gaius harvested it and threshed. To whom will the grain belong? ➤ what if he ground the grain and made four? SPECIFICATION: D. XLI 1.7.7 GAIUS, EVERYDAY MATTERS OR GOLDEN THINGS

When anyone makes a form (species) in his own name with materials belonging to another, Nerva and Proculus think that the one who made it is the owner, for the reason that what has been fabricated formerly belonged to no one. Sabinus and Cassius think that rather, in accordance with natural reason, he who owned the materials would also be the proprietor of what was made out of them, because no form can be manufactured without materials; as, for instance, if I should make a vase out of your gold, silver, or brass; or a ship, a cupboard, or a bench out of your boards; or a garment out of your wool; or mead out of your wine and honey; or a plaster, or a liquid eye-salve out of your drugs; or wine out of your grapes, or grain; or oil out of your olives. SPECIFICATION: D. XLI 1.7.7 GAIUS, EVERYDAY MATTERS OR GOLDEN THINGS

There is, however, a middle opinion entertained by persons of good judgment, who believe that, if the form can be reduced to its material, what Sabinus and Cassius hold is truer, but if this cannot be done, the opinion preferred by Nerva and Proculus is truer; for example, when a vase of gold, silver, or copper can be melted and returned to its original rough metallic mass, but wine, oil, or grain cannot be restored to the grapes, olives, and ears from which it was derived; nor can mead be restored to the honey and wine of which it is composed, nor can a plaster or an eye-wash be resolved to the drugs out of which it was compounded. SPECIFICATION: D. XLI 1.7.7 GAIUS, EVERYDAY MATTERS OR GOLDEN THINGS

Still it seems to me that some authorities very properly held that no doubt should exist on this point, when wheat has been obtained from the ears of others to whom the latter belonged, for the reason that the grain retains the ears in its perfect form, and he who threshes it does not manufacture a new article, but only extracts what is already in existence. SPECIFICATION: D. XLI 1.7.7 GAIUS, EVERYDAY MATTERS OR GOLDEN THINGS

➤ pr. It must be said with reference to everything which can be restored to its former condition, that if the material remains as it was, and the form only is changed (as, for instance, if you make a statue out of my bronze, or a cup out of my silver), I will be the owner of it ➤ If, however, you build a ship out of my boards, it will belong to you, for the reason that the cypress tree, of which they formed a part, is no longer in existence, any more than wool, where a garment is made of it; but a new form, composed of the cypress or the wool, has been produced. ➤ (3) Labeo says that if you dye my wool purple, it will still be mine, because there is no diference between wool after it has been dyed, and where it has fallen into mud or flth, and has lost its former colour for this reason. 7. Cum quis ex aliena materia speciem aliquam suo nomine fecerit, Nerva et Proculus putant hunc dominum esse qui fecerit, quia quod factum est, antea nullius fuerat. Sabinus et Cassius magis naturalem rationem efficere putant, ut qui materiae dominus fuerit, idem eius quoque, quod ex eadem materia factum sit, dominus esset, quia sine materia nulla species effici possit: veluti si ex auro vel argento vel aere vas aliquod fecero, vel ex tabulis tuis navem aut armarium aut subsellia fecero, vel ex lana tua vestimentum, vel ex vino et melle tuo mulsum, vel ex medicamentis tuis emplastrum aut collyrium, vel ex uvis aut olivis aut spicis tuis vinum vel oleum vel frumentum. Est tamen etiam media sententia recte existimantium, si species ad materiam reverti possit, verius esse, quod et Sabinus et Cassius senserunt, si non possit reverti, verius esse, quod Nervae et Proculo placuit. Ut ecce vas conflatum ad rudem massam auri vel argenti vel aeris reverti potest, vinum vero vel oleum vel frumentum ad uvas et olivas et spicas reverti non potest: ac ne mulsum quidem ad mel et vinum vel emplastrum aut collyria ad medicamenta reverti possunt. Videntur tamen mihi recte quidam dixisse non debere dubitari, quin alienis spicis excussum frumentum eius sit, cuius et spicae fuerunt: cum enim grana, quae spicis continentur, perfectam habeant suam speciem, qui excussit spicas, non novam speciem facit, sed eam quae est detegit. ➤ what legal fgure is discussed in the above-texts? ➤ what legal principles are formulated? ➤ how could you explain the diference between the Schools? ➤ Formulate the ‘middle’-opinion and check your results against the examples provided by Paul and Gaius. ➤ Justify the ‘middle’-opinion ➤ Working at his apiary Titius noticed that one of his swarms had swarmed and settled in a hollow of the old oak-tree growing on the ground belonging to his neighbour Marcus. Marcus however did not allow Titius to enter his estate, stating that the bees belong to him according to the Law. Before the neighbours could settle their argument in a court they met at a party given by their common friend – Gaius. By the end of the dinner Gaius jokingly drank to the prosperity of the owner of the mead made by his slave of the honey produced by the disputed swarm of bees.

➤ Whose prosperity was toasted to and why?

➤ And who is the owner of the bees? Was Marcus right preventing Titius from entering at his estate? IURA IN RE ALIENA Real Rights/Limited Property Rights JLAlonso&JUrbanik, The Principles of Roman Law: Unit 1:12 DISTINCTIVE FEATURE DISTINCTIVE FEATURE

➤ Consider the following: DISTINCTIVE FEATURE

➤ Consider the following: ➤ A. Aulus instituted a usufruct for Lucius on his slave Pamphilus. DISTINCTIVE FEATURE

➤ Consider the following: ➤ A. Aulus instituted a usufruct for Lucius on his slave Pamphilus. ➤ B. Aulus lent his slave Pamphlius to Lucius for use. DISTINCTIVE FEATURE

➤ Consider the following: ➤ A. Aulus instituted a usufruct for Lucius on his slave Pamphilus. ➤ B. Aulus lent his slave Pamphlius to Lucius for use. ➤ In either case imagine that Aulus’ wife, Publia recently quite mad at her husband, seized the slave claiming he belonged to her dowry. What may Lucius do? DISTINCTIVE FEATURE

Protection erga omnes TYPES TYPES

➤ Rights improving the use of one’s land: servitutes (servitudes, easements, so-called predial servitudes or real servitudes) TYPES

➤ Rights improving the use of one’s land: servitutes (servitudes, easements, so-called predial servitudes or real servitudes) ➤ Personal rights in other’s property: ususfructus, usus, habitatio, opera servorum & animalium (the so-called personal servitudes) ➤ Rights allowing special, owner-like, use of land to the no- owner: Ius in agro vectigali, ius perpetuum, emphytuesis, superfcies TYPES

Common law: Easement HOW TO ESTABLISH A SERVITUDE? HOW TO ESTABLISH A SERVITUDE?

➤ Mancipatio & mancipatio rei excepta servitute (lex mancipi) HOW TO ESTABLISH A SERVITUDE?

➤ Mancipatio & mancipatio rei excepta servitute (lex mancipi) ➤ In iure cessio HOW TO ESTABLISH A SERVITUDE?

➤ Mancipatio & mancipatio rei excepta servitute (lex mancipi) ➤ In iure cessio ➤ Why not traditio? HOW TO ESTABLISH A SERVITUDE?

➤ Mancipatio & mancipatio rei excepta servitute (lex mancipi) ➤ In iure cessio ➤ Why not traditio? ➤ legatum per vindicationem HOW TO ESTABLISH A SERVITUDE?

➤ Mancipatio & mancipatio rei excepta servitute (lex mancipi) ➤ In iure cessio ➤ Why not traditio? ➤ legatum per vindicationem ➤ adiudicatio HOW TO ESTABLISH A SERVITUDE?

➤ Mancipatio & mancipatio rei excepta servitute (lex mancipi) ➤ In iure cessio ➤ Why not traditio? ➤ legatum per vindicationem ➤ adiudicatio ➤ pacta & stipulationes HOW TO ESTABLISH A SERVITUDE?

➤ Mancipatio & mancipatio rei excepta servitute (lex mancipi) ➤ In iure cessio ➤ Why not traditio? ➤ legatum per vindicationem ➤ adiudicatio ➤ pacta & stipulationes ➤ Can a servitude be acquired via usucaption ? (lex Scribonia) TYPES OF SERVITUDES ➤ Land (predial/real) servitudes ➤ Rustic ➤ Urban ➤ Personal servitudes (since Justinianic compilation) ➤ Earlier particular personal rights, i.al.: usufruct, use, right to dwell LAND SERVITUDES:

iter, via, aquaeductus, aquae haustus, ius pascendi, ius calcis coquendae, cloaca servitus altius non tollendi, ne luminibus, ne prospectus ofciatur PROTECTION OF AND AGAINST SERVITUDE

D. VIII 4.17. Alfenus, Digest, Book II. (1) A certain part of the premises of Gaius Seius was subject to a servitude for the beneft of the house of Annius, which provided that Seius should have no right to put anything in that place; but Seius planted trees there, and under them kept basins and other vessels. All persons learned in the law advised Annius to bring suit against Seius on the ground that he had no right to have those things in that place without his consent. PROTECTION OF AND AGAINST SERVITUDE

Actio confessoria CAIUS AQUILIUS IUDEX ESTO. SI PARET AULO AGERIO IUS ESSE PER FUNDUM QUO DE RE AGITUR IRE AGERE NEQUE EA RES ARBITRIO C. AQUILII IUDICIS AULO AGERIO RESTITUETUR, QUANTA EA RES ERIT, TANTAM PECUNIAM CAIUS AQUILIUS IUDEX NUMERIUM NEGIDIUM AULO AGERIO CONDAMNATO, SI NON PARET ABSOLVITO.

Actio confessoria

LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS THAT THE PLAINTIFF HAS THE RIGHT TO PASS THROUGH THE LAND, WHICH IS THE CASE MATTER HERE, AND THIS THING IS NOT RESTORED TO THE PLAINTIFF UPON JUDGE’S CALL, LET THE JUDGE CONDEMN THE DEFENDANT IN FAVOUR OF THE PLAINTIFF FOR THE VALUE OF THE CASE MATTER. IF IT DOES NOT APPEAR LET HIM ABSOLVE! PROTECTION OF AND AGAINST SERVITUDE

D. VIII 4.17. Alfenus, Digest, Book II. (2) A neighbour placed a dunghill against the wall of another party from which the wall became damp; and advice was asked in what way he could compel his neighbour to remove the dunghill. I answered, that if he had done this in a public place he could be compelled to remove it by means of an interdict; but if it was done in a private place, it would be necessary to bring an action with reference to a servitude; and if there had been any stipulation for the prevention of threatened injury, the party could avail himself of the stipulation if he had sustained any damage on account of what had been done. PROTECTION OF AND AGAINST SERVITUDE

Actio negatoria PROTECTION OF AND AGAINST SERVITUDE

Actio negatoria Interdictum uti possidetis CAIUS AQUILIUS IUDEX ESTO. SI PARET NUMERIO NEGIDIO IUS NON ESSE PER EUM FUNDUM QUO DE RE AGITUR IRE AGERE INVITO AULO AGERIO NEQUE EA RES ARBITRIO C. AQUILII IUDICIS AULO AGERIO RESTITUETUR, QUANTI EA RES ERIT, TANTAM PECUNIAM CAIUS AQUILIUS IUDEX NUMERIUM NEGIDIUM AULO AGERIO CONDAMNATO, SI NON PARET ABSOLVITO.

Actio negatoria

LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS THAT THE DEFENDANT HAS NOT RIGHT RIGHT TO PASS THROUGH THE LAND, WHICH IS THE CASE MATTER HERE WITH THE PLAINTIFF NOT PERMITTING, AND THIS THING IS NOT RESTORED TO THE PLAINTIFF UPON JUDGE’S CALL, LET THE JUDGE CONDEMN THE DEFENDANT IN FAVOUR OF THE PLAINTIFF FOR THE VALUE OF THE CASE MATTER. IF IT DOES NOT APPEAR LET HIM ABSOLVE! TWELVE MINI-CASES ON THE LAW OF SERVITUDES My land

Your land TWELVE MINI-CASES ON THE LAW OF SERVITUDES My land

Your land

I have right of way over your plot, granted to me by your father. TWELVE CASES ON THE LAW OF SERVITUDES

TWELVE MINI CASES ON THE LAW OF SERVITUDES