introduction and Original Acquisition

Question 1

define common law

Answer 1

laws developed from disputes i.e. a new rule is announced in the course of resolving a dispute.

Question 2

define civil law

Answer 2

rules are formulated in advance in the authoritative text

Question 3

what is foundations of private law

Answer 3

the rules built up from Roman Law

Question 4

in rem

Answer 4

law of property. We claim that some corporeal thing is ours or that we are entitled to something. Enforceable against the whole world.

Question 5

in personam

Answer 5

law of obligations. Someone owes us something. Personal rights. Rights against individual persons.

Question 6

real rights

Answer 6

rights in things which are enforceable against anyone

Question 7

name four types of real rights

Answer 7

• ownership
• usufruct
• servitudes
• real security

Question 8

which of the real rights can the others not exist without

Answer 8

ownership

Question 9

define ownership

Answer 9

is a right in a thing and it can be enforced against the world. The relevant action is the vidicatio.

Question 10

difference between possession and ownership

Answer 10

possession is in essence a question of fact and by contrast ownership is question of right

Question 11

animo et corpore

Answer 11

have possession by the mind and by the physical act

Question 12

in order to possess something you must……..

Answer 12

have effective power of control over it

Question 13

what is the good faith possessor

Answer 13

someone who possesses a thing in the honest belief that he is the owner, even though he is not

Question 14

what are the two types of acquisition

Answer 14

derivative acquisition of ownership and original acquisition of ownership

Question 15

what is derivative acquisition

Answer 15

when the previous owner conveys or transfers ownership to another

Question 16

what is original acquisition

Answer 16

when a person acquires ownership of a thing without deriving the title from any previous owner

Question 17

define corpus

Answer 17

the requisite physical control over a thing required to be a possessor

Question 18

animus

Answer 18

the requisite mental element for possession, which is the intention to hold and control the thing as an owner

Question 19

define occupatio

Answer 19

acquisition of ownership of property that has no owner (res nullius) by taking possession of it

Question 20

how do you retain ownership of a wild animal if you have lost possession of it?

Answer 20

it is possible for a wild animal to recover its natural state as an unowned thing. Retains natural state if person lost sight of animal or too difficult to pursue after losing possession

Question 21

Note the rules regarding animus revertendi

Answer 21

animal must have habit of returning

Question 22

can you take ownership of animal even if on other person’s land?

Answer 22

yes

Question 23

accessio (3)

Answer 23

• a means of acquiring ownership of something that belongs to another by its incorporation. -Accession happens mechanically even if the parties do not want it
• . the accessory always accedes to the principal, and the owner of the principal becomes the owner of the accessory

Question 24

If George builds a house on Sarah’s land who owns the house?

Answer 24

Sarah, land is always the principal

Question 25

what is the test of functional subordination

Answer 25

If two things (X & Y) are attached and X serves a function in relation to the use of Y, then X will usually be the accessory and Y will usually be the principal;

Question 26

what are the conditions for accession to take place

Answer 26

the attachment must be (within reason) inseparable for accession to take place. It depends on the extent to which there is a permanent physical attachment to the principal object.

Question 27

mixture

Answer 27

property belonging to two different people is mingled separably. There is no loss of identity; the objects could be separated again No change in ownership, but consider the practical result. Vindicate what's yours in proportion to what you put in

Question 28

confusion/ fusion

Answer 28

property belonging to two different people is mingled inseparably. If parties agreed to the merger and made no further agreement on the point, then they will own the whole in common. But if the parties did not consent to the process then they will own the whole in proportion to the extent of their respective contributions

Question 29

specificatio

Answer 29

a means of acquiring ownership of something that belongs to another by making a new thing from the property belonging partly or wholly to the other. Loss of identity.

Question 30

in the case of specificatio if taken someone elses property and made something new, what did the romans say would happen?

Answer 30

if the thing could be reduced to its constituent parts, then those constituent arts would be returned to the original owners. But if the thing could not be reduced to its constituent parts, then the maker owns the new thing

Question 31

difference in specificatio in Roman Law and Scots law

Answer 31

in roman law it did not matter if you took someone's property in good or bad faith, but in scots law have to do it in good faith (not essential to know)

Question 32

when do the rules of mixture or confusion apply

Answer 32

where the merger results in no change of identity

Question 33

when do the rules of accessio apply

Answer 33

where the merger results in a loss of identity by one thing to another and the thing cannot be separated

Question 34

when do the rules of specificatio apply

Answer 34

where the merger of two things results in both losing their identity and in the creation of a completley new thing, that cannot be reduced to its constituent parts

Question 35

what are the fruits of a thing

Answer 35

products that come from the position are the property of the original owner

Question 36

what happens when a good faith possessor cultivates land belonging to another and then harvests the fruits

Answer 36

the good faith possessor becomes owner of the fruits on separation/ Once the truth about ownership of the land becomes known, the law says that the good faith possessor does not have to account for any fruits he actually consumed. Account means give the value of possession in terms of money. Eating and sale count as consumption.

Question 37

treasure trove

Answer 37

not in force in Scotland today. This is when valuable have been hidden for so long that their owner can no longer be discovered. In this case the treasure goes to crown, the finder has no right to it.

Question 38

usucapio

Answer 38

that one can become an owner of a thing after possessing it for a period of time

Question 39

what are the prescriptive periods for movable possession, land and servitude

Answer 39

movable- 1 year land- 2 years servitude- 10 years

Question 40

what are the conditions of usucapio

Answer 40

- uninterrupted possession of the thing for the period lay down by law - possession had to have been acquired in good faith - possession had to have been acquired on the basis of iusta causa traditionis ( the thing must have been acquired in circumstances that would normally have resulted in the transfer of ownership - the thing had to be capable of being owned - only if the object had not been taken by force

Question 41

mancipatio

Answer 41

the rule that some items were transferred through a certain ceremony

Question 42

remedies. If someone is deprived of ownership of a thing as a result of original acquisition of the thing by another. A builds a house on B's land. B owns the house. But does A have remedy?

Answer 42

yes but only if the two conditions were satisfied: - A had retain possession of the house ]- A had to built the house in the honest belief that he was in fact the owner of the land