law of property Flashcards
(135 cards)
1
Q
what were Gaius’ division of property
A
- either subject to human or divine law
- everything falling under human law is either corporeal/incorporeal
2
Q
res
A
extended notion of property
3
Q
corporeal thing
A
something that could be touched
eg a house
4
Q
incorporeal thing
A
something that could not be touched
eg inheritance, obligations, rights over a property
5
Q
categories of things that were publicly owned:
A
- res communes
- res publicae
- res universitatis
- res nullius
- the seashore
6
Q
res communes
A
things common to all main
eg the air, the sea
7
Q
legal element surrounding res communes
A
the law recognised a right to enjoy them, although they could not be owned
deliberate interference could result in a delictual remedy for insulting behaviour
8
Q
res publicae
A
‘public’ things belonging to the state
eg public roads, harbours, certain rivers, property confiscated in military action
9
Q
senatorial province vs imperial province
A
senatorial province is one belonging to the roman people
imperial province is more recently acquired territory (belonging to the empire) specifically owned by one person
10
Q
what could be used to protect public things
A
interdicts
11
Q
example of a public thing
A
rivers
if they flowed year-round
could not own the river, but could own the banks and its bed
nonetheless have no ability to prevent the public from using the banks to enjoy the river
12
Q
What significant change did the compilers of Justinian’s Institutes make regarding property classification?
A
Removed the corporeal/incorporeal distinction and expanded types of classification
13
Q
How are things classified according to ownership?
A
Public or private
14
Q
What are Res universitatis?
A
Things intended for public use owned by corporate public bodies, e.g., public streets and buildings
15
Q
What are Res Nullius?
A
Things belonging to no one, including wild animals and abandoned property
16
Q
How can ownership be acquired over Res Nullius?
A
Through occupatio
eg ownership of wild animals and abandoned property
17
Q
What is the legal status of the seashore?
A
Lacks a clear legal identity
18
Q
What rights do individuals have regarding the seashore?
A
Everyone has the right of access
no one could acquire any part of the shore, although shelters etc. could be built
19
Q
Differentiate between movables and immovables.
A
immovables were land, whilst movables were anything else that could be owned privately
20
Q
What are fungibles?
A
Things regarded as existing primarily in quantities, e.g., money or grain
21
Q
What are non-fungibles?
A
Things with a separate identity and degree of permanence, e.g., a book, land
22
Q
What is the significance of the distinction between fungibles and non-fungibles in law?
A
It affects how they can be sold ie the law of contracts
eg fungibles could only take place by way of stipulatio, but non-fungibles could be sold using emptio venditio
23
Q
What are Res mancipi?
A
those things which had to be conveyed by mancipatio or cessio in order for dominium to pass
24
Q
List the examples of Res mancipi according to Gaius (5)
A
- Slaves
- Beasts of draft and burden
- Italic land
- Houses on Italic land
- Rustic praedial servitudes
25
What are examples of beasts of burden classified as Res mancipi? (4)
* Oxen
* Horses
* Mules
* Donkeys
26
What is the main reason for the reluctance to expand the list of Res mancipi?
The cumbersome and inconvenient formal modes of conveyancing
27
What does res nec mancipi refer to?
All other things that did not need to be conveyed by formal modes of conveyance
28
How did the importance of the distinction between res mancipi and res nec mancipi change over time?
It lessened due to decreasing use of mancipatio and cessio
and because of the operation of bonitary ownership
29
example of something res nullius that was subject to divine law
eg Roman city walls and gates
they were consecrated, considered crucial to the city of rome
res sanctae
30
example of a res nullius that was religious
res religiosae
eg a tombs (technically)
31
what was the state of the distinction between res mancipi and res nec mancipi by Justinian's tme
the distinction was largely an irrelevance
32
What was the early Roman law's concept of ownership?
Lacked a precise concept of ownership and may have involved community elements.
33
What was the original view of land ownership in early Roman law?
Land was regarded as publicly owned, even if privately enjoyed.
34
What is the term for the highest entitlement to property in Roman law?
dominium
specifically distinguished from lesser types of proprietary interest
35
What are the three essentials of dominium?
* commercium*
* Property capable of private ownership*
* Appropriate mode of acquisition*
36
Who could have dominium under Roman law?
Only Roman citizens and foreigners granted commercium.
37
What is peregrine ownership?
A legal interest allowed for foreigners under Roman law, since they were not technically allowed commercium
38
What significant change occurred due to the grant of citizenship by Emperor Caracalla in 212 AD?
It reduced the importance of peregrine ownership.
39
What type of land strictly belonged to the Roman people or the Emperor?
Provincial land.
40
What is the term for the practice of leasing provincial land?
Provincial ownership.
41
What formal modes of transfer were required for dominium over res mancipi?
*mancipatio*
*cessio*
42
What is mancipatio?
The primary ius civile mode of transferring res mancipi.
originating before the 12 tables
43
What were the formal requirements of mancipatio?
* Presence of transferor and transferee*
* Presence of property*
* At least five witnesses*
* A libripens (a person holding scales)*
44
What happens upon the completion of the mancipatio ceremony?
The transferee becomes *dominus* outright.
45
What was the procedure for transferring ownership in mancipatio?
Transferee grasped the property, asserted ownership with set words, and struck the scales with bronze.
46
What is the effect of mancipatio on res nec mancipi?
Ownership likely passes through *traditio*, rather than through mancipatio technically
mancipatio would count as proof of intention to constitute sufficient delivery
47
What is cessio in iure?
A formal conveyance similar to mancipatio, performed before a magistrate.
48
What were the chief uses of cessio?
Transferring incorporeal things, creating servitudes, transferring inheritances.
49
What was a key difference between cessio and mancipatio?
Cessio required a magistrate, making it more cumbersome.
50
What was the significance of the praetor in cessio?
The praetor would award the property to the transferee if the transferor claimed no rights.
51
What remedies were available if the transferor lacked title in cessio?
Unclear; *actio auctoritatis* does not seem to apply.
52
What were the legal effects of cessio?
Passed ownership at once and unconditionally, subject to possible servitude reservation.
53
What is bonitary ownership?
A concept developed by praetors to protect transferee interests in property acquisition.
54
when was there a transfer from an undifferentiated concept of ownership in early Roman law to a technical concept of dominium
in classical era
the recognition of a variety of proprietary interests necessitated the elucidation of a clearer notion of ownership
55
what modes of acquisition were available to those who wanted peregrine ownership
ius gentium modes
but not ius civile
56
did those with provincial ownership have dominium over a property
no
but they had an interest that was in practice close to full ownership
transferable by convenient ius gentium modes of transfer (eg delivery)
57
why did mancipatio and cessio become less important over time
because they were cumbersome and anachronistic
hence most information is found in Gaius rather than Justinian
58
what replaced mancipatio and cessio
delivery (traditio)
and the concept of bonitary ownership
59
how was mancipatio carried out in the case of moveables
only as much could be conveyed by one mancipatio as could be gasped
60
how was mancipatio carried out for land
a symbolic sod of earth was grasped
it need not have been from the actual land being mancipated
61
could mancipatio or cessio be impugned on grounds of fraud or duress
no
62
requirements for cessio to take place
- was performed before a magistrate
- the transferee and transferor were present
- the property to be transferred (or sod of earth) was present
- the transferee grasped the property and uttered the same set words as in mancipatio
- the magistrate asked the transferor whether he claimed the thing - assuming that the latter stayed silent, or made no claim, he was taken as having ceded his rights, whereupon the praetor awarded the property to the transferee
63
could cessio be used to transfer nec mancipi?
yes, although traditio would usually be more convinent
64
what remedy was available in a mancipatio where the transferor lacked ownership
the transferee could not acquire what the transferor did not have
however, the transferee may become the owner through usucapio
if evicted before, he was entitled to double the price under an action (allowed by the 12 tables)
65
What is traditio?
Traditio was the transfer of ownership of a thing through delivery pursuant to a cause
## Footnote
Traditio is a key concept in Roman law regarding property transfer.
66
What was the primary function of traditio in Roman law?
Traditio was the standard way of conveying res nec mancipi and was of great practical importance.
widely applicable and ius gentium mode of acquisition
eg the mode by which the purchaser in a contract of sale normally acquired ownership
## Footnote
Res nec mancipi refers to property that could be transferred without formalities.
67
In what context was traditio commonly used?
Traditio was commonly used for the transfer of movables or land.
## Footnote
It was particularly relevant for the purchaser in a sale.
68
What type of ownership did traditio confer for res mancipi initially?
Traditio of res mancipi did not give dominium but only bonitary ownership.
however bonitary ownership could turn into dominium after a required period of prescription
## Footnote
Bonitary ownership could convert to dominium after a period of prescription.
69
What significant change did Justinian make regarding traditio?
Justinian abolished the distinction between res mancipi and nec mancipi, recognizing traditio as conferring dominium over all property.
## Footnote
This change simplified property transfer in Roman law.
70
What are the two basic essentials of traditio?
The two basic essentials of traditio are:
* Delivery
* Appropriate intent
## Footnote
Both elements are critical for a valid transfer of ownership.
71
What does delivery in the context of traditio entail?
Delivery involves putting the transferee in possession of the property.
## Footnote
This can occur through various forms, not necessarily requiring physical contact.
72
What is traditio longa manu?
Traditio longa manu occurs when the property is indicated or pointed at, within sight of the parties and capable of immediate control.
## Footnote
This method is useful for items that cannot be easily handled.
73
What is traditio brevi manu?
Traditio brevi manu is the authorization by the transferor that the transferee can keep a thing over which they already have control.
in this situation, delivery consisted of the words of authorization
## Footnote
The delivery consists of the words of authorization.
74
What is constitutum possessorium?
Constitutum possessorium occurs when the transferor agrees to pass ownership but retains temporary control.
the agreement to pass ownership constituted delivery
## Footnote
This arrangement is often used in leaseback scenarios.
75
What is symbolic delivery?
Symbolic delivery is a type of delivery recognized in the late empire that can best be described as 'symbolic'
such as handing over keys or a document recording a transfer.
## Footnote
This type of delivery does not require the parties to be present at the site.
76
What is iusta causa in relation to traditio?
Iusta causa is a lawful cause that provides the legal ground for the delivery of the thing and the transfer of ownership.
## Footnote
Examples include a sale, gift, or exchange.
77
Is iusta causa always required for traditio?
There is controversy regarding whether iusta causa was always required in classical Roman law.
## Footnote
Some sources suggest it was necessary for a valid traditio.
78
What happens if parties are mistaken about iusta causa?
Mistakes in iusta causa do not invalidate a traditio if both parties had the required intention to pass and receive ownership.
## Footnote
Such mistakes are termed putative iusta causa.
79
What is the significance of the 'coined money' example?
In the coined money example, the transferee received ownership despite believing it was a loan.
## Footnote
This illustrates the importance of intention in ownership transfer.
80
What can prevent a valid traditio?
Mistakes regarding the identity of the property or of the transferee can prevent a valid traditio.
## Footnote
Mistakes must be material to affect the validity.
81
What was the nemo dat principle?
Nemo dat principle states that one cannot transfer better title than one possesses.
## Footnote
This principle applies to all modes of conveying property inter vivos.
82
What are the three Roman modes of conveying property inter vivos?
The three modes are:
* Cessio
* Mancipatio
* Traditio
## Footnote
Each mode has its own rules and requirements for valid transfer.
83
when was traditio longa manu a practical way of delivering
when the thing to be delivered was difficult to handle
eg land or heavy moveables
84
what are the types of delivery for traditio
- physical transfer (put in possession of the property)
- traditio longa manu
- traditio brevi manu
- constitutum possessorium
- symbolic delivery
85
What is usucapio?
A method of acquiring property through continuous possession over a specified period.
86
What was the practical importance of usucapio?
It allowed persons to convert their interest in property into full dominium.
87
What was the consequence of usucapio?
It reduced uncertainty over ownership.
88
Who primarily benefited from usucapio?
Persons who acquired property innocently but lacked dominium due to flaws in ownership.
situation primarily arose, eg, through an unintentional and undetected breach of requirements of the mancipatio act
89
What historical origins can be traced for usucapio?
The twelve tables, which stated land could be acquired by two years’ use.
90
What are the key principles of usucapio?
* Possession
* Lapse of time
* Continuity
* Good faith
* Iusta causa
* Property capable of being usucapted
91
What is the requirement for possession in usucapio?
The holder must have legal possession protected by interdict.
it was insufficient to have mere custody (detentio) of the thin
92
What is the lapse of time requirement for land in usucapio?
Two years of continuous possession.
93
What was the lapse of time requirement for other things in usucapio?
One year of continuous possession.
94
What happens if a holder's possession is interrupted?
They must start the possession period anew; earlier time cannot be added.
95
What type of interruption occurs with a legal claim?
Civil interruption.
96
How did classical law view civil interruptions?
in early law, mere legal claim constituted an interruption
but in classical law it was held that there was no interruption until judgment was given against the possessor.
97
What could a buyer do regarding possession periods?
The buyer could add the seller’s period of possession to their own if both were in good faith.
98
What happens to possession if the possessor dies?
The heir can add the deceased's period of possession to their own.
99
What is the definition of good faith (bona fides) in usucapio?
The possessor must believe their possession is held honestly.
100
Is proof of good faith required in usucapio?
No, good faith is presumed until proven otherwise.
101
When must good faith be present in possession?
At the time possession begins, but not necessarily throughout the required period.
102
What is an exception to the good faith requirement in usucapio?
In the case of a gift, the donee must have good faith throughout the required period.
Justinian later changed this, stating where one party had to have good faith, so did another
103
What are the circumstances under which good faith is not required?
In the case of vacant inheritance,
in some circumstances, heirs were not obliged to accept an inheritance
if an heir did not accept, or delayed in doing so, the inheritance was vacant and thus res nullius open to the first taker
he would become the owner (despite the lack of good faith) after holding it for a year
104
What reform by Hadrian affected usucapio of vacant inheritances?
Heirs could recover the property even after the lapse of one year.
105
What is the definition of iusta causa?
The taking of possession had to be the result of some transaction or cause which was normally a basis for lawful acquisition such as:
* sale
* gift
* inheritance
* exchange
## Footnote
This requirement was not recognized as essential until the later Republic.
106
Was mistaken iusta causa sufficient in usucapio?
No, mistaken iusta causa was held insufficient in usucapio as a general rule.
## Footnote
This view was accepted in the late classical period and by Justinian.
107
What types of property are excluded from usucapion?
The following properties are excluded from usucapion:
* dotal immovables
* land belonging to a ward in guardianship
* stolen property
## Footnote
Stolen property could not be acquired through usucapio under the Twelve Tables.
108
What was the consequence of the exclusion of stolen property from usucapion?
Innocent acquirers, such as bona fide purchasers for value, could not become owners regardless of the length of their possession.
## Footnote
This created an imbalance in protecting the position of the dominus.
109
What is longi temporis praescriptio?
It is a form of prescriptive interest in provincial land that emerged during the empire, protecting long possession against the owner's vindicatio.
## Footnote
The required period of possession was ten years if the parties resided in the same province, otherwise 20 years.
110
What was the main difference between usucapio and longi temporis praescriptio?
The main difference was that a possessor could add his predecessor’s period of possession to his own in longi temporis praescriptio.
## Footnote
Longi temporis praescriptio did not originally confer ownership but protected against the owner's right of action.
111
What are the two categories of possessors that could acquire ownership through usucapio?
The two categories are:
* bonitary owner
* possessor in good faith
## Footnote
Both lacked dominium but could acquire it through usucapio.
112
What protections were available for bonitary owners and possessors in good faith?
Their protection depended on their position:
* Bonitary owners were protected from claims by any third party, including the dominus.
* Possessors in good faith were protected only from claims by third parties with weaker rights.
## Footnote
The praetor provided remedies to assert their title and defeat claims.
113
What is the actio Publiciana?
It is a legal action introduced by the praetors in 67 BC that provided bonitary owners an effective remedy against the dominus and any third party.
## Footnote
It allowed the bonitary owner to allege that the appropriate period of usucapio had elapsed.
114
What uncertainty surrounds the actio Publiciana?
There is uncertainty about its original scope and whether it was intended specifically for bonitary owners or bona fide possessors.
## Footnote
Its lack of mention in juristic literature until later raises questions about its significance.
115
What happened to bonitary ownership over time?
Bonitary ownership eventually was regarded as being as beneficial as dominium, and once held for the required length of time, the bonitary owner became the actual dominus.
## Footnote
This reflects a significant evolution in property rights.
116
what is the difference between possession and custody (detentio)
someone with possession believes themselves to be the owner
someone with detentio recognises someone else's ownership of the thing
eg a tenant in a house
117
was supervening bad faith fatal to usucapio?
no
118
What is a bonitary owner?
A bonitary owner is someone who lacks dominium because the parties employed an inappropriate mode of conveyance while attempting to transfer ownership of an object.
## Footnote
For example, delivery of a res mancipi was not executed correctly.
119
What does it mean for a possessor in good faith to lack dominium?
A possessor in good faith lacks dominium because the person who transferred ownership to him did not have ownership himself.
## Footnote
This situation arises even when an appropriate mode of conveyance was used.
120
What type of possession does a transferee acquire when dominium does not pass?
The transferee merely acquires interdictal possession which could ripen into dominium through usucapio.
121
What is the interval between conveyance and acquisition of dominium called?
The interval is the period when the transferee is described as either a bonitary owner or a possessor in good faith, depending on the nature of the defect.
122
Under which legal system was the position of both the bonitary owner and the possessor in good faith precarious?
The position was precarious under the ius civile.
123
What legal remedies could the bonitary owner and possessor in good faith use to defend their possession?
They could defend their possession using interdicts, but only against immediate dispossessors.
124
Could the bonitary owner and possessor in good faith prevent the rightful dominus from recovering property?
No, they could not prevent the rightful dominus from recovering it through vindicatio.
125
What was the praetors' concern regarding the position of bonitary owners and possessors in good faith?
Praetors were concerned with the potential unfairness inherent in the ius civile position.
126
What kind of protection was available to a bonitary owner?
If the transferee was a bonitary owner, remedies protected him from claims by any third party, even the dominus.
127
What level of protection did a possessor in good faith receive?
Remedies protected him only from claims by any third party with a weaker right than his own, not against the dominus.
128
How did the role of the bonitary owner or possessor in good faith affect legal outcomes?
The operation of the rules depended on whether the bonitary owner or possessor in good faith was a defendant or a plaintiff.
129
What happens if a bonitary owner is a defendant?
His interest would be protected against the dominus by the praetor, who would allow a defence in the relevant formula.
130
What must the exceptio state when a bonitary owner is a defendant?
The exceptio would state the reason why the defendant had an interest in the property, such as it had been sold to him.
131
What occurs if the bonitary owner's defence is proved on the facts?
The dominus is defeated, the bonitary owner retains possession, and could be awarded ownership.
132
What can a bonitary owner rely on if the plaintiff is not the dominus but a third party?
The bonitary owner could rely on possessory interdicts to protect his interest.
133
What protections does a possessor in good faith have as a defendant?
He can protect his possession against third parties who have a weaker claim than him to the property using possessory interdicts.
134
Can a possessor in good faith successfully defend against a vindicatio from the dominus?
No, the dominus has a stronger right to the property than the possessor in good faith.
135
What limitations exist for possessory interdicts when the bonitary owner or possessor in good faith is the plaintiff?
The applicability of possessory interdicts is somewhat limited when they are sought for the recovery of possession; they normally fail against the dominus.
