Servitudes

Question 1

Servitudes - what?

Answer 1

Schulz - a “burden”

Marcian - a “benefit”

Question 2

Servitudes must…

Answer 2

• not be over one’s own property
• be economically beneficial (D.8.1.15)
• not impose active duties (D.8.1.15.1)
• be used and exercised reasonably (D.8.1.9)

Question 3

Purpose of servitudes

Answer 3

• effective use of land: economic efficiency

- allowance of complex arrangements: autonomy

Question 4

Praedial servitudes

Answer 4

• rights a person had by virtue of owning land.

- attached to land (D.8.4.12)

Question 5

Rustic praedial servitudes

Answer 5

• iter (walk)
• actus (drive)
• via (walk and drive)
• aquae ductus (channel water)

Question 6

Creation of rustic praedial servitudes

Answer 6

• mancipatio
• cessio in iure
• usucapio (until lex Scribonia)
• pact/stipulation
• quasi-traditio and patienta (delivery and intention)
• long use (nec vi, nec clam, nec precario)
• long temporis prescriptio (nec vi, nec clam, nec precario)
• deductio
• by will

Question 7

Extinction of rustic praedial servitudes

Answer 7

• legal/factual destruction
• merger
• non-use
• release

Question 8

Protection of rustic praedial servitudes

Answer 8

• ownership level: actio confessoria and negatoria

- possessory level: possessory interdicts

Question 9

Urban praedial servitudes

Answer 9

• right to non-obstruction of light; right to prevent this…

=> existed in both positive and negative form.

Question 10

Creation of urban praedial servitudes

Answer 10

• adiudicatio
• mancipatio
• cessio in iure
• usucapio (until lex Scribonia)
• pact/stipulation
• quasi-traditio and patienta (delivery and intention)
• long use (nec vi, nec clam, nec precario)
• long temporis prescriptio (nec vi, nec clam, nec precario)
• deductio
• by will

Question 11

Termination of urban praedial servitudes

Answer 11

• legal/factual destruction
• merger
• non-use
• release

Question 12

Protection of urban praedial servitudes

Answer 12

• ownership level: actio confessoria and negatoria

- possessory level: possessory interdicts

Question 13

Usufruct - what

Answer 13

“The right to use and enjoy the things of another without impairing their substances” (Paul, D.7.1.1.)

Question 14

Usufruct - rights

Answer 14

• to use the property in authorised way (otherwise lex Aquilian action)
• to take its fruits
• sell/lease of the right

Question 15

Usufruct - duties

Answer 15

• to take care as the reasonable person
• to return unchanged (allowing for wear and tear)
• property could be improved as long as this did not alter the character (D.7.1.13.4)

=> encompassed in the cautio

Question 16

Quasi-usufruct

Answer 16

For perishables - by will only

Question 17

Usus

Answer 17

• right to use the property, but not to take its fruits (apart what was necessary to maintain the household)
• no lease/sale

Question 18

Habitatio

Answer 18

• the right to live in a house
• late Empire
• by will only

Question 19

Operae sevorum vel animalium

Answer 19

• late Empire
• by will only
• the right to use slaves and animals

Question 20

Creation of personal servitudes

Answer 20

• grant through legacy
• imposition by law
• any praedial method

Question 21

Protection of personal servitudes

Answer 21

• actio confessoria/negatoria
• act furti/utilis
• possessory interdicts
• actio on the contract of the cautio

Question 22

Termination of personal servitudes

Answer 22

• death
• expiry of the usufruct/servitude
• loss of status (not applicable to habitatio or operae)
• non-use (2 years for land, 1 year for movables)

Question 23

Contractual proprietary interests

Answer 23

• emphyteusis (long leases)
• superficies (for building purposes)
• pignus (types of mortgages; creditor allowed to keep the fruits)