Acquisition of Ownership

Question 1

ius civile modes of acquisition

Answer 1

mancipatio
in iure cessio
usucapio

Question 2

other modes of acquisition

Answer 2

traditio
occupatio
accessio
thesauri inventio
specificatio
fruits

Question 3

mancipatio formal ceremony required

Answer 3

5 witnesses, person holding the scales, transferor + transferee + thing to be transferred
usually a written record also
FOR RES MANCIPI

Question 4

if the mancipatio ceremony was performed properly…

Answer 4

…ownership was passed regardless of whether or not the transferor was coerced etc

Question 5

Mancipatio - mode of transferring ownership?

Answer 5

derivative mode

Question 6

form of mancipatio - contract or conveyance? focus?

Answer 6

sale and transfer combined - no need for delivery, it was included in the ceremony
focus was on the transferee becoming owner

Question 7

in iure cessio formal ceremony

Answer 7

needed a praetor
transferee asserts the thing is his, the transferor agrees, the praetor declares that the transferee is owner
cumbersome, little used

Question 8

uses of in iure cessio

Answer 8

mainly used for res incorporales (i.e. inheritance and guardianship) - all res nec mancipi apart from rustic praedial servitudes
could be any res corporales as well including res mancipi

Question 9

requirements of traditio

Answer 9

1. physical handing over of the thing or equivalent
2. by the owner
3. who intends to part with ownership to a transferee who intends to receive ownership
4. iusta causa

Question 10

iusta causa (traditio)

Answer 10

underlying transaction justifying the transfer of ownership like a sale or a gift

Question 11

uses of traditio

Answer 11

general mode of transfer for res nec mancipi

could also be used for res mancipi but the transferee would only become a bonitary owner and would still have to usucape

Question 12

derivative mode of transfer - no man can give what he does not have

Answer 12

nemo dat quod non habet

Question 13

traditio longa manu

Answer 13

property was pointed out or indicated

property had to be in sight and then the transferee would assume immediate control - useful for land etc

Question 14

traditio brevi manu

Answer 14

when the transferor authorizes the transferee to become owner of something he already has physical control over
needs WORDS of authorization
essentially 2 contracts - 1st like borrowing does not transfer ownership or possession but the 2nd like gift or sale does (contract acts as conveyance?)

Question 15

constitutum possessorium

Answer 15

transferor agrees to pass ownership and possession to the transferee but the transferor retains physical control of the thing
transferor holds res in detentio, in the interests of the transferee

Question 16

symbolic delivery

Answer 16

document recording conveyance sufficed in the post classical period

Question 17

putative causa definition

Answer 17

when both parties think there is causa but they are mistaken or have different causa in mind

Question 18

Does putative causa suffice in the Classical period?

Answer 18

Causal view: putative causa was not iusta causa and would vitiate a transaction
Abstract view: putative causa suffices if the parties have appropriate intentions
Thomas says that causa is to establish the intentions of the parties in delivering or receiving the thing - by Justinian putative causa definitely sufficed

Question 19

Error

Answer 19

error in corpore
error in persona
error in nomine

Question 20

Error in corpore

Answer 20

selling A but deliver B by mistake - ownership does NOT pass because there is no intention to part with B

Question 21

Error in persona

Answer 21

selling to A but deliver to B by mistake - ownership does not pass
unless A does not have a specific person in mind

Question 22

Error in nomine

Answer 22

calling the res the wrong name by mistake but still intending to part with ownership with regards to that res -ownership does pass

Question 23

requirements of usucapio

Answer 23

1. res habilis
2. titulus/iusta causa
3. fides
4. possessio
5. tempus

Question 24

Res habilis

Answer 24

property capable of being usucaped

NOT stolen goods, land acquired by force, land as part of dowry, land belonging to the emperor

Question 25

Titulus/ iusta causa (usucapio)

Answer 25

to establish the bona fides of the transferee - putative causa did NOT suffice

Question 26

Fides

Answer 26

belief that the thing was honestly held | supervening bad faith did not prevent usucapio unless it was gratuitous acquisition

Question 27

Possessio

Answer 27

NOT detentio needed to have animo et corpore protected by the praetor had to be uninterrupted possession

Question 28

Tempus

Answer 28

moveables = 1 year immoveables = 2 years Classical period : required uninterrupted possession, no adding together of time heirs can complete usucapio Justinian allowed adding together of time

Question 29

usucapio definition

Answer 29

acquisition of ownership through continued possession

Question 30

specificatio definition

Answer 30

acquisition of ownership through creating a new thing (nova species) from another's materials

Question 31

specificatio when the maker owned part of the materials

Answer 31

he became owner of the whole nova species

Question 32

specificatio when the materials were owned wholly by another (school dispute)

Answer 32

Proculians said the thing belonged to maker Sabinians said the thing belonged to the owner of materials media sententia: if nova species could not be restored to former state then belongs to the maker, if nova species could be restored to former state then belongs to owner of materials

Question 33

accessio definition

Answer 33

acquisition of ownership when a subordinate thing merges inseparably with a principal thing so the owner of the principal thing becomes the owner of the whole

Question 34

in accessio if there was inseparability but no subordination

Answer 34

then there was confusio and both parties became co-owners | had actio communi dividendo to claim share

Question 35

in accessio if the things were separable

Answer 35

then there was conmixtio and it could be separated out

Question 36

textura

Answer 36

accessio with wool or thread acceding to the garment

Question 37

scriptura

Answer 37

accessio with writing acceding to the parchment

Question 38

pictura

Answer 38

accessio with tablet acceding to the painting

Question 39

How do you determine the principal/subordinate thing in accessio?

Answer 39

normally physical identity rather than value determined which thing lost its identity

Question 40

Does consent or good/bad faith matter in accessio?

Answer 40

NO - owner of the principal thing is still owner of the whole But if owner of the principal was in bad faith he would be liable for furtum

Question 41

Remedies for the owner of subordinate thing who merged the things thinking he was owner of the principal thing?

Answer 41

Owner of the principal thing would still be owner | Owner of subordinate thing had exceptio doli to resist vindicatio until compensated for the value of materials

Question 42

Immoveables acceding to immoveables

Answer 42

avulsio insula in flumine nata alluvio no compensation because changes arose from natural phenomena

Question 43

moveables acceding to immoveables

Answer 43

superficies solo cedit - anything attached to land became part of the land i.e. plants and buildings Builder in possession of building may have exceptio doli to resist vindicatio until compensated for materials

Question 44

Fruits for different categories of people

Answer 44

owner - normally entitled to the fruits of the thing he owns bona fide possessor/emphyteuta took ownership through separatio - so as soon as the apple fell from the tree tenant/usufructuary took ownership through perceptio - physically taking the fruits themselves or via a representative

Question 45

bona fide possessor and emphyteuta in fruits

Answer 45

supervening bad faith for BFP could mean that BFP could still usucape but not legally acquire the fruits could both still acquire the fruits even if the property is not capable of being usucaped - i.e. it was stolen Justinian said BFP had to account for all unconsumed fruits in vindicatio

Question 46

occupatio definition

Answer 46

acquisition of ownership through taking possession of a res nullius or res derilictae

Question 47

Wild animals in occupatio

Answer 47

ownership depends on possession and control - it is not just because the animal is on a person's land if the animal escaped it became res nullius again exceptions of bees and deer who continue to be owned as long as they have animus revertendi

Question 48

res nullius

Answer 48

is something which has never been owned like insula in mari nata

Question 49

res derilictae

Answer 49

is something with has been abandoned | owner had to intend to abandon it and occupier had to intend to acquire it

Question 50

Res mancipi/ res nec mancipi in occupatio?

Answer 50

Thomas says that you acquire ownership immediately of res nec mancipi through occupatio but still have to usucape a res mancipi

Question 51

thesauri inventio definition

Answer 51

acquisition of ownership by finding treasure

Question 52

when treasure is found by deliberate search...

Answer 52

...it belongs to the owner of the land

Question 53

when treasure is found by the owner of the land..

Answer 53

..it belongs to him

Question 54

when treasure is found by chance on another's land..

Answer 54

....land owner owns half and the finder owns the other half. land owner owned his half before treasure was even found.

Question 55

longi temporis praescriptio definition

Answer 55

usucapio for provincial land and available to foreigners 10 years for parties living in the same province 20 years for parties living in a different province

Question 56

longissimi temporis praescriptio

Answer 56

allowed acquisition of ownership based on sole possession - i.e. no need for iusta causa 30 years if the person was aware of situation and did nothing i.e. in bad faith 10/20 years if person was in good faith Constantine said 40 years regardless makes possessor owner- clear up the confusion