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Flashcards in Bonitary ownership Deck (14)
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1
Q

Bonitary owner basics

A
  • Res mancipi acquired outside of in iure cessio or mancipatio
  • Turn to dominium via. usucapio
2
Q

Ius honorarium protection of bonitary owner

A

END OF REPUBLIC

BO as D: - Exceptio rei venditae et traditae to Dominium vindicatio
- Not dominus then may rely on possessory interdicts

BO as claimant:

  • 67 BC actio Publicana have BO protection against D. & 3rd party
  • AP available to BO BFP & othe rposessors undergoing usucapio
  • All needed Iusta causa and be b.f.
3
Q

Bona fide Possession basics

A
  • Good faith acquisition from someone believed capable of transferring ownership but not in fact capable
4
Q

Dispute concerning scope of Actio Publiciana

A

De Vissher: AP created for BO and later adapted to BFP

Wubbe: Primarily for BFP to get round issue of proof needed for vindicatio and came to be applicable by BO

5
Q

Wider consequences of ACtio Publiciana on the law of property

A

R.M transferred via traditio in substance the owner, significantly diminishing formal nature of conveyance

6
Q

Differing views on the division of dominium

A
  1. Gaius: Ownership @ first single but then divided so that there could be civil law owner (dominus) and one holding among his goods
  2. Birks: Dominium indivisible: Distinction ceated between ius civile (Dominus) and ius honorarium (Creating other forms of ownership)
  3. Actio Publiciana seemed to give way to 3 fold div.
    - Owner = Vindicatio against all
    - BO = AP against all including owner
    - BFP = AP against all but owner
7
Q

Possession

A
  • O = Factual sov. & P = Legal Sov.

- protected via possessory interdicts

8
Q

Acquisition of possession

A
  • Corpus: Effective physical control
  • Animus: Disputed
    A) SAVIGNY: Intention to hold it as one’s own
    B) JHERING: Consciousness of being in control of it
9
Q

Savigny versus Jhering: A war of scholars

A
  • SAVIGNY: Argued both Animus and corpus essential to possession

Explains why derivative holders ie usufruct do not hold possession but not why a pledgee in pignus does have possession
Says there is an intentin to hold the property as derivative owner

  • JHERING: Only Corpus essential

Explains latter but not former of SAVIGNY
Says due to no need to protect possessory interest

10
Q

Possessory interdicts: Outline

A
  • Classified according to purpose

- Thought to be more efficient than vindicatio

11
Q

Possessory interdicts: Classifications

A

Acquiring possession
Retaining possession
Recovering possession

  • AD 389: Decree issued stating property forcibly seized by an owner would lose onwership and possession, reducing need for PI
12
Q

Kaser view on ownership

A

Many had rights in an object but owner just had the best right to it

13
Q

Nicholas resolving Birks and Kaser dispute in dominium

A

Person cannot have a right to possession in Roman law and Romans believed in indivisibility of ownership but only by turning blind eye to BO & BFP

14
Q

Three parts to possessory interdict

A
  • Remedy lies only against dispossessor
  • Title of each irrelevant
  • Possession must not have been obtained by force, secret or by grant at will