Law of property Flashcards
(124 cards)
1
Q
What are things?
A
They are economic assets. Can include physical objects or abstract things such as debt
They are the second division in the classification of law. They are further divided into property, obligations and succession- rather strange considering that succession is not an asset
‘creation, transfer and enjoyment of economic assets’
2
Q
What is the difference between property and obligations?
A
Property is the realm of rights in rem, while obligations deal with rights in personam (idea of being owed something).
There must also be a defendant when bringing an actio in rem- they are available against all persons generally while actions in personam lay only against specific persons
3
Q
What is the purpose of actions in rem?
A
Their aim is not to demand restitution or a specific performance. Instead in an action in rem demands that the defendant pay the value of the thing and if it is not returned the plaintiff can make his own evaluation of the value of the thing.
4
Q
Can you proceed both in rem and in personam?
A
Certain situations such as you buy a book from A and A fails to deliver it. You can proceed with an action in rem or an action personam- it should not matter unless the defendant is insolvent, in which case an action in rem would be preferable
5
Q
Does an act which creates a right in personam also create a right in rem?
A
No, a contract for example (which creates a right in personam) does not create a right in rem- for this conveyance is necessary. For example, if A buys the book he does not have ownership of it until it is delivered.
6
Q
Why is there a separation between contract and conveyance?
A
Because it was believed that rights in rem should not be created in secrecy (as they affect everyone) so there needed to be a conveyance. However, there is no objection to the secret creation of rights in personam.
7
Q
What is mancipatio?
A
A formal mode of transfer. It took place in the presence of 5 witnesses and there was a striking of copper on scales
8
Q
What is in iure cessio?
A
Took place in a open court in the presence of a praetor- formal words were said.
9
Q
Why was the distinction between contract and conveyance later obliterated?
A
A desire to conduct affairs in private
Traditio- informal mode of conveyance
10
Q
What was the different classification of res?
A
Res mobiles and res immobiles
Res extra patrimoniun and res in patrimonio
Res Mancipi and res nec mancipi
Res corporales and Res incorporales
Fungibles and non-fungibles- tended to be part of contracts of loan such as mutuum. These were things that could be consumed by use and those which could not
11
Q
What is the distinction between res mobiles and res immobiles?
A
Moveable things and immovable things (land and buildings)
There was a different period of usucapio. For moveables it was 1 year and 2 years for immovables
12
Q
What is the distinction between res mancipi and res nec Mancipi?
A
Res Mancipi required formal transfer (slaves, beasts of burden, rustic praedial servitudes, italic land). Conveyance through mancipatio or in iure cessio- mere delivery was insufficient to pass ownership- needed to be a formal and public conveyance
Res nec mancipi is everything that is not res Mancipi- conveyed by traditio
This distinction was formally abolished by Justinian
13
Q
What is the distinction between res corporates and res incorporales?
A
Res corporales are physical things (a house) while abstract things such as debts are res incorporales (praedial servitudes)
Important to note that incorporeal things cannot be possessed as they denote a handling. They cannot be usucaped or transferred by traditio.
“Those which are not tangible, such are those consisting in a right, as an inheritance, a usufruct, use, or obligations in any way contracted.” (Gaius and Justinian)
14
Q
What is the disctinction between res extra patromonium and res in patrimonio?
A
Human things and divine things which can and cannot be owned
Res extra patrimonium- sacred things, common things (common to all men) and public things that cannot be owned
15
Q
What is the distinction between ownership and possession?
A
Usucapio deals with the acquisition of ownership through possession.
The basic distinction is factually having a thing and being entitled to it. For example, a thief will have possession of the thing he has stolen
16
Q
How is possession protected?
A
Possessions are protected by possessory interdicts.
They are remedies to prevent others from interfering with possession and recovering possession. Often times if A is evicted by B it will be favourable to proceed with a possessory interdict rather than a vindicatio as it places the burden of proving ownership on B
Possession must not have been obtained forcefully, secretly or by grant at will
17
Q
What is the definition of possession?
A
The holding of a thing in the manner of an owner
Possession as a fact- there must be some material manifestation of it
18
Q
Who can possess?
A
In Roman law it was not simply that any man who has the thing has possession of it.
Individuals who hold the thing because of a contract with the owner cannot possess. Therefore, the usufructuary, borrower and depositee cannot possess. The owner holds possession through them. Therefore, if the thing is stolen by a third party the owner will have to bring the possessory interdict or vindicatio.
The Roman tenant is a detentor and his landlord is the possessor- despite the lesee’s physical occupation of the land he legally has no relation to it.
19
Q
What is an usufructuary?
A
Temporary right to enjoy and derive profits from another’s property
20
Q
What amount of physical control is necessary for possession?
A
Acquisition of possession is both mental and physical. Paul suggests that one acquires possession through an act of the mind and an act of the body.
The intention must be one’s own but the act of the body may be supplied by another.
Necessary to note that intention requires knowledge e.g. I see you put the book in my drawer- otherwise the necessary intention is lacking.
21
Q
How can possession be retained?
A
Possession can simply be retained animo solo. Wha tis retained animo solo can only be lost animo. Therefore you still have possession even if you leave your house and squatters take over. You shall not lose possession until you know of the presence of the squatters and fail to evict them.
22
Q
What are the modes of acquisition of corporeal things?>
A
mancipatio
In iure cesssio
Traditio
23
Q
What are the civil modes of acquisition and the natural modes of acquisition?
A
Mancipatio and in iure cessio are particular to Roman law and are thus civil modes of acquisition. Traditio is a natural form of acquisition
24
Q
What are derivative and original modes of acquisition?
A
Derivative mode- one acquires from the previous owner so must simply prove the title of the predecessor (mancipatio, in iure cessio (confined to incorporeal things), traditio)
Original mode- occupatio of a wild animal - taking ownership of something that is not dependent on any previous title
25
Why did mancipatio and in iure cessio disappear?
The abolition of the distinction between res mancipi and res nec mancipi
26
What was traditio?
It was the only delivery to survive in Justinian's law- mere delivery
27
What were the requirements of traditio?
Common mind- both need to know that it is a loan and not a gift
Traditio- requires the acquisition of possession animo et corpore, distinguishing contract from conveyance
28
What were the different types of traditio?
Traditio longa manu- physical transfer is impossible in the case of immovables. Thus, it is sufficient if the thing is pointed out- you cannot get possession until you are in sight of them. This is similar to the emergence of a 'symbolic traditio'- case of warehouse- during classical law it was not sufficient that I simply hand over the keys- it had to be done by the warehouse. However, under Justinian the keys could be handed everywhere.
Traditio brevi manu- acquiring ownership of something already in your possession
Constitutum possesiorum
29
What is constitutum possesiorum?
It is when I sell you a book but we agree that I shall retain it on a loan. Here, ownership and possession passes despite the lack of conveyance as there is a definite transaction with the loan. Led to the emergence of consent as the foundation of conveyance. Mere agreement was sufficient.
30
What are important considerations when bringing actions?
Periods of limitation- the time period in which the action is enforceable. If you fail to bring it within a certain time you are debarred from bringing it thereafter
Acquisitive prescription- creates a new right as with usucapio
Extinctive prescription- extinguishes the right without giving it to someone else
31
What is the purpose of usucapio?
Serves to either remedy a defect in the title of the person or the way in which it was conveyed (e.g. traditio of a res mancipi)
32
What are the requirements of usucapio?
The thing must not have been stolen
Uninterrupted possession for the requisite period
The individual must be capable of usucapio i.e. a Roman citizen
Acquired bona fide and iusta causa (transaction by which the possessor would have become owner) (honest belief that he was not infringing the rights of another)
The thing must be capable of being owned
Supervening bad faith was no bar to usucapio
33
Define bonitary ownership and bona fide possessor?
The bonitary owner's title is only formally defective because it had been conveyed incorrectly.
Bona fide possessor's title was substantially defective as it was derived from a non-owner
34
How were the bonitary owner and bona fide possessor protected?
Only with interdicts that lied against the immediate dispossessor.
35
How did the praetor intervene to change this?
The praetor established the principle that the bonitary owner was to be protected against everyone (even the owner). If the dominus brought a vindicatio then the defendant was allowed to insert a defence to acquit him if the thing was sold and delivered by the plaintiff.
In contrast, the bona fide possessor was to be protected against everyone except the owner. If (while on the way to usucapio) the owner brings the vindicatio (only action available) the dominus must be allowed to succeed against the bona fide possessor.
The bona fide possessor had no better title than being the mere possessor.
36
Where does the action derive from?
The actio publiciana- formula asserts that if the plaintiff had been in possession of the thing for a year he would have been the owner- the plaintiff must prove other elements of the usucapio. He must be able to succeed against the dominus
37
What was the significance of the actio publiciana?
It led to the abolition of the distinction between mancipatio and in iure cessio. The actio publiciana made bonitary ownership only technically different from dominium. Traditio was sufficient to transfer ownership.
38
What were Justinian's reforms with regards to usucapio?
Long term prescription- originally only a period of limitation. In Justinian's period it became like usucapio but the period was much longer. 10 years if the parties lived in the same district and 20 if they did not.
Long term prescription was used for immovables such as land while usucapio was used for movables
He also created a new form of acquisitive prescription. Thus, even if one had not acquired the thing in iusta cusa, provided that they had acquired bona fide then they would become owner after 30 years. (longissimi termis praescriptio)
Justinian also ruled that the bona fide possessor holding in bad faith would become owner in 20 years if the dominus failed to bring an action to assert his claim. 30 if he was unaware
39
What is the meaning of the inviolability of ownership?
A man cannot transfer a better title than he has
Inviolability of ownership means that an individual cannot lose ownership without their consent. It allows no other inroads than usucapio and long term prescription
40
What are the original modes of acquisition of corporeal things?
```
Occupatio
Increments by rivers
Treasure trove
Specificatio
Accessio
Separatio and harvesting
Commixtio
```
41
What is occupatio?
Acquisition of ownership of a thing that previously had no owner (res nullius). One case of this is wild animals- if you catch a wild animal that later escapes you shall lose ownership of it in that moment. However, if a tame goose escapes then I am still the owner as if it was a res mobiles
Ownership of wild animals was lost when possession was lost- relaxed in the case of animals which have the habit of returning- e.g. a pigeon which has the intention to return.
42
What is increment by rivers?- when a river changes its course
Alluvio and avulsio
Insula nata
Alveus derelictus
43
What is alluvio?
Land might increase by accretions of soil. These additions are not res nullius and belong to the riparian owner (owns the land on which the water sits)
44
What is avulsio?
A piece of land that floats bodily down the river there is no change of ownership until it becomes firmly rooted/ permanently attached to new land- Justinian
45
What is the principle of insula nata?
If the movement of the river throws up a new island. If the island is wholly on one side of the river then the riparian owner of that side owns the island. If there are two riparian owners then it should be divided equally. If it is a middle it should be equally separated using a horizontal line drawn in the middle
If the river divides enclosing a piece of land as an island the ownership remains unchanged.
46
What is alveus derelictus?
If the river changes course then the bed it abandons becomes the property of the riparian owners while the new bed becomes public
47
What is a merger?
Occurs when one thing belonging to one person is united with another. Ownership of the whole belongs to one of us or jointly- if it is the former then questions of compensation arise
48
How is ownership determined when there is a merger of identity?
The question is one of identity- if the identity of one thing (the accessory) is merged and lost in the identity of the other (the principle) then the owner of the principal is the owner of the whole e.g. case of cup and handle. The owner of the cup is the owner the whole as the handle is the accessory- principle of accessio.
49
What happens when the identity of the components are the same as the identity of the whole?
Then ownership is joint e..g my gold ingot and your gold ingot are melted together to produce a lager ingot
50
How can the meaning of identity be defined?
The texts offer one of value. Thus, the less valuable thing will usually accede to the more valuable thing. However, this is not always the case as the letters accede to the paper even if the letters are gold
51
What about accessio of moveables to land?
If your seed is sown onto my land I own it. If A builds on B's land with A's materials then the building accedes to the land. While the union is dissoluble the XII tables barred the demolition of buildings. Therefore, A has to wait until the house falls down to claim the materials through a vindicatio.
If A builds on A's land with B's materials, B is given an action by the XII tables for twice the value of the materials for his having wrongfully incorporated B's materials into the land.
52
Can the owner of the accessory in an indissoluble merger claim compensation despite losing ownership?
If the union was made in bad faith then the owner of the accessory can claim both compensation and a penalty as it was essentially theft.
The second scenario is when the owner of the handle (A) is in possession of the cup. Here, B can bring a vindicatio for the cup. However, A can claim that B must pay compensation by bringing the exceptio doli against B's vindicatio. If B fails to pay then the vindicatio will fail.
However, if A is not in possession of the whole then it seems that there is no remedy. A can perhaps claim that b has been unjustifiably enriched at his expense.
Another scenario is if B bought the materials from C- in which case B is not unjustifiably enriched and he is dealing in good faith. The classical lawyers would therefore refuse A's action- one innocent party must unfortunately suffer.
53
What is specificatio?
Another case of identity. Two things may be so united that the identity of the resulting thing is different from that of the original thing. A nova species is created.
54
How did the Sabinians and Proculians differ with respect to the ownership in specificatio?
Sabinian- ownership is joint in accordance to the contributions of materials by each party. This is difficult as it does not take into account labour
Proculian- ownership is given to the maker of the thing. He acquired by specificatio- by making a new thing
There was a third interpretation- gave the nova species to the maker only if it could not be restored to its former state. Justinian further added that if the maker had contributed any materials to the nova species then it belonged to him
55
What is accessio?
When one object is attached to another. There is usually a principal and an accessory. The general rule was that the owner of the principal is also the owner of the accessory. There is joint ownership if it was done with consent- measured according to the materials contributed
In specificatio a nova species is created (contention of when a thing becomes a nova species). Justinian's media sententia was criticised as it did not take into account the effort to make the thing.
56
What is the difference between accessio and confusio?
If the identity of the accessory is lost in the identity of the principal then the owner of the principal is the owner of the whole (accessio)
The identity of the whole is the same as the identity of the components. In this case the ownership is joint (confusio)
57
What if the accessio is done in bad faith?
If it is dissoluble then the owner of the accessory can bring a vindicatio for the dissolution of the thing
58
Why is the test of value for the principal and accessory inaccurate?
The letters accede to the paper/ parchment. 'If Titius writes a poem on your parchment the whole will belong to you'- still have to pay for the value of the writing even if you sue Titius for the parchment. If you refuse to do so then Titius can bring the exceptio doli
Board accedes to the painting- Hence, if the owner of the board has possession of the picture, and is sued for it by the painter, who nevertheless refuses to pay the cost of the board, he will be able to repel him by the plea of fraud. If, on the other hand, the painter has possession, it follows from what has been said that the former owner of the board, [if he is to be able to sue at all], must claim it by a modified and not by a direct action; and in this case, if he refuses to pay the cost of the picture, he can be repelled by the plea of fraud, provided that the possession of the painter be in good faith; for it is clear, that if the board was stolen by the painter, or some one else, from its former owner, the latter can bring the action of theft.
59
What is commixtio?
The mixing of two objects by separate owners
if the mixing is done with consent then there is common ownership
If the mixing is done without consent then the ownership does not change an each person has the actio ad exhibendum and vindicatio to recover his own property.
If each individual object is not easily identifiable then each owner has a vindicatio to retrieve their portion of the mass
60
What is specificatio?
The creation of a completely new thing through a combination of other things. Equally applies to a single thing being worked on so much that its identity is changed. For example, wine being made from grapes
61
The acquisition of fruits- who do the fruits belong to?
In prima facie terms, natural fruits belong to the owner of the parent thing (land)
62
Does a tenant (lesee) have rights to the fruit?
a tenant is entitled to the fruits, but the landlord must give consent for him to collect the fruits. This is because the tenants right over the land is a right in personam (contract). His gathering with the owner's consent is traditio bravo manu- cannot acquire title if the owner withdraws consent.
63
Does an usufructuary have a right to the fruits?
The usufructuary is allowed to benefit from and use the property for his enjoyment- he has a right in rem. Therefore, the usufructuary is entitled to the fruits through perceptio- no consent is needed.
Usufructuary has a right in rem to the fruits
64
The bona fide possessor and fruits
Bona fide possessor might have spent money and labour on cultivation. This led to the view that he should be entitled to fructus industriales (those that need cultivation) as opposed to fructus naturals. However, in the dominant view he was the relative owner on the way to usucapio and therefore he acquired all fruits as soon as they separated from the parent thing (land)- provided he is still in good faith. The bona fide possessor acquires through Separatio.
Justinian- the bona fide possessor must hand over all fruits that he has not consumed
65
Why is the distinction between the usufructuaries perceptio and the bona fide possessor's Separatio important?
Vital if the fruits are taken by a third party. The usufructuary cannot claim the fruits by vindicatio as it was not he who gathered them but the bona fide possessor can. The usufructuary has no possession of the land itself merely a right to use the land and take its fruit- does not acquire the fruits until he has taken them- essentially has no right until he gathers them.
Bona fide possessor can bring a vindicatio because they have been separated.
66
What does perceptio mean?
Become owner only by gathering the fruits (perceptio)
67
What is Separatio?
Claim once it has been separated from the parent thing
68
What is a treasure trove?
Treasure is something that has been intentionally hidden for such a long time that their owner can no longer be discovered.
If a man found the treasure on his own land he was entitled to it all. If found on another's land- each entitled to half. If found intentionally then the owner of the land is entitled to the whole
69
What are some examples of incorporeal things?
Praedial servitudes
| Personal servitudes
70
What are servitudes?
Rights in rem over another man's property
Rights exercisable by a person over land on which he was not dominus- they were perpetual once created
A right in rem other than ownership
71
What is the purpose of praedial servitudes?
In order to make the most use of your land it is essential that you have some rights over your neighbours as they may have more water than you. a contract to exercise these rights is inefficient as it is a right in personam and will not be transferred to subsequent owners of the property and you will need to negotiate with the next owner
The praedial servitudes must be used for the benefit of the dominant land.
72
What is the serviant land called?
It is said that the land over which the praedial servitude is exercised imposes a burden on ownership. The land to which the serviant land is annexed to is called the dominant land.
73
What are the dangers of such multiplications on the burdens of ownership?
May reduce the value of the land. Roman law accounted for this- the owner of the servient land was not required to do anything- merely abstain from doing something such as building.
74
What are the two types of praedial servitudes?
Rustic praedial servitudes
| Urban praedial servitudes
75
What are examples of rustic servitudes?
Iter- right of passage on foot
Actus- right to drive animals across the servant land
Via- general right of passage
Acquaeductus- right to draw water over land
76
What are examples of urban servitudes?
Right to light
Right to support- seems to breach the notion that praedial servitudes cannot impose positive obligations
Restrictions on the height of buildings
77
How are praedial servitudes created?
Formal conveyance- they are res mancipi.
78
What was the purpose of counter servitudes?
They provided a partial release from servitudes
e.g. the right to build higher
right not to receive rain drippings
79
How are praedial servitudes protected?
The actio confesiora- lay to the person asserting the servitude over the dominus of the serviant land who denied the right
80
How was the dominus of the serviant land protected?
actio negatoria- lay to the dominus of the serviant land to deny the existence of the servitude
81
How could praedial servitudes be terminated?
In iure cessio of any servitude
Remancipation of rustic servitudes by the dominant owner to the servitude ended the right
Renunciation sufficed following the abolition of the distinction between the formal conveyances
Confusio (merging) of the land would also end the servitude
Destruction of either piece of land would end the servitude
Non-exercise of the servitude will end the servitude- 1/2 years in classical law 10/20 under Justinian
For urban servitudes it requires a lack of action on behalf of the dominant owner to some action of the serviant owner which breaches the servitude
82
What is the difference between rustic and praedial servitudes?
Rustic servitudes were positive
| Urban servitudes tended to be negative
83
What were the personal servitudes?
```
Personal servitudes are invested in a person and are inalienable- could come into being through legacy or created by the formal methods
Usufructus
Usus
Habitatio
Operae servorum
```
84
What is usufructus?
The right to enjoy, use and take the fruits and profit from a property without fundamentally altering its character.
85
What is usus?
The right to use and enjoy the property but without taking the fruit and profiting from it.
86
What was usually the purpose of an usufructus?
Usually seen as a family settlement. For example, if a paterfamilias wanted to give the property to his wife for life and then his son, he could do so by leaving it to his son, subject to an usufruct in favour of his wife. This creates rights in rem for the usufructuary and the owner which can be asserted against a third party.
Only the owner is able to alienate
An usufructuary can hire out an usufruct but it will only create rights in personam
87
How did the usufruct end?
Death of the usufructuary or the expiry of the term of the usufruct
88
What is habitatio?
A variety of usus that was only applicable to houses
| Entitled the user to hire out the house
89
What was operae servorum?
A variant of usus applicable to the services of slaves only
| Entitled the user to hire out the services of the slave.
90
What are the similarities between praedial and personal servitudes?
Both are burdens of ownership which restrict the enjoyment of the owner
Praedial servitudes permanently enhances one's ownership while personal servitudes creates ownership at different times
91
What were the rights of the usufructuary?
The usufructuary could not alienate the usufruct. They could hire it out- this was not the same as alienating it. However, this only created rights in personam and the usufructuary was still liable to the owner for damages. obliged to return the equivalent in quality and quantity
92
What were other forms of iura in re aliena (rights in the property of another)?
Emphyteusis
| Superficies
93
What was emphyteusis?
Granting state land for a long period of time providing that the annual rent was paid. The right was unique as it was freely alienable and could be inherited. The holder also had possession of the land unlike the ordinary lessee. The right was only extinguished by non-payment or the emphyteuta dying without heirs.
By the time of Justinian the emphyteuta also had an action in rem- thus he was for all purposes the owner
94
What is superficies?
Right over the building on a land. Relates to the principle that buildings accede to the land. However, the owner of the land was still the owner of the building. The right of the superficarius was so long that it was suggested that there were two ownerships.
95
What is fiducia and what type of contract was it?
If a man transfers his property to another on the condition that it should be reconveyed once the debt is paid this is fiducia. The thing was conveyed by mancipatio or in iure cessio.
Essential in cases where a person (debtor) borrows money from someone (creditor)- needs protection from non-payment of the debtor or possible insolvency
The debtor took all the risk as the creditor gained a right in rem and if he sold it the debtor only had an action against the creditor.
It is real security- one of the earliest forms of real security?
96
What was pignus?
'the giving or real security by the transfer of possession'
Much more suitable to the debtor as it gave possession rather than ownership. However, the creditor was less well protected
97
To what extent is ownership absolute?
Ownership is only absolute in terms of enjoyment- not abuse and use. However, no right to use, enjoy and abuse property are without restrictions- must consider other owners.
Not absolute as in a vindicatio you have to prove that you have the best and absolute right in the thing.
98
What is the definition of ownership?
The ultimate residual right in a thing. Ultimate right to enjoyment. e.g. cases where rights are infringed by a superficies
99
Why was ownership considered absolute?
Because of the lack of tertium quid between ownership and possession. There was an action asserting ownership and an action asserting possession, but there was no action to assert a right to possession. In principle, a man cannot pass a right better than he has or lose ownership without his consent.
100
Why is the belief in the absolute nature of ownership problematic?
The usufruct, emphyteusis etc all made inroads into the indivisibility of ownership. Especially because emphyteusis and superficies were freely alienable
The Romans claimed that dominium was indivisible but this required turning a blind eye to the classification of bonitary and bona fide ownership as forms of ownership
101
What was the significance of the actio publiciana?
Effectively abolished mancipatio and in iure cessio
Possessors in the course of usucapio not only had interdictal protection but also the actio Publiciana (the fictious vindication in which the iudex was to assume that the plaintiff had possessed the thing for the relevant period. Bona fide possessor- if he brought an actio publiciana against the Dominus he would be met with the exceptio iustu dominii. He would also be defeated by a bonitary owner
102
What is dominium?
The most important right that a person could have in a res corporales. distinguished from lesser rights such as servitudes
103
What were the requirements for dominium?
Must be capable of ownership- i.e. to be a Roman citizen
Must have been conveyed in the correct manner
Must not have been stolen
Must have been conveyed by a dominus
The thing must be capable of being owned
104
Could peregrine's have dominium?
Foreigners did not have commercium so they could not have dominium or use the civil modes of acquisition and transfer
They had a fictious vindicatio
not a problem after the constitutio antoniana
Their ownership was recognised by the ius gentium
105
Ownership of provincial land
Typically under the ownership of the emperor- could be held by private individuals who paid rent to the appropriate authorities
Justinian abolished the distinction between Italic and provincial land
106
what were the remedies of the Bonitary owners?
If the dominus brought a vindicatio it was possible to assert in defence that the res Mancipi had been sold and delivered to him. If it was taken from his possession he had the actio publiciana even against the dominus.
The formal modes of transfer were no longer important as the bonitary owner in effect had all the benefits of ownership.
107
What is possession?
A factual relationship to a corporal thing- physical control over a thing. There were links to ownership in the sense that usucapio involves the acquisition of ownership from possession.
It was said that there is no similarity between property and possession.
108
Who could not have possession?
Usufructuaries, lessee and other beneficiaries. Only the dominus had the possessory interdicts as he held through them.
109
What is corpus?
The factual relation between a person and a thing
110
What remedies were available for possessors?
The possessors had possessory interdicts at their disposal in cases where a vindicatio was brought against them. The plaintiff in a vindicatio would have to establish title.
111
What was the difference between pignus and fiducia?
Pignus (pledge) was a relatively late republican development, originally only enforced under the ius honorarium. It was a form of real security- if a creditor was given interdictal posession of the thing, he would be able to effectively retain the thing until the obligation was satisfied, while the debtor remained dominium in the thing. Fiducia was original form of real security where the creditor received full ownership of the thing to reconvey it to the debtor when the obligation was discharged.
112
Who had possession/ could claim the possessory interdicts?
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Sequestors
Pignus
Precarium
Emphyteusis
Mala fide possessors
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113
What was precarium?
A grant at will. The precario tenens had full enjoyment of the land although he could not alienate it
114
How to acquire and retain possession?
Acquired possession corpus and animus
| If a slave of fillius was in the property the dominus retained through them
115
Case of the runaway slave
There was also the question of the runaway slave- Paul reports that a runaway slave continued to be possessed until another took him, only for the purpose of usucapio. The texts reveal conflicting views but it appears not improbable that in later classical law it was accepted that a person continued to possess animo a runaway slave
116
What was the definition of quasi possession?
The usufructuary needed certain possessory interdicts in order to fully enjoy the property despite not being possessor of the thing. The usufructuary is said to be quasi in possessio.
117
What possessory interdicts were available in order to retain possession?
Utrubi for res mobiles
| Uti possidetis for land (concerned with existing possession)
118
What was utrubi?
Could serve to recover lost possession while also protecting possession. For instance, if X stole Y's up then Y had the utrubi against X who is holding in stealth. However, although X will fail against Y if Z stole the cup from X he likewise has an utrubi. It is clear that title is irrelevant
If Y took the cup from Z then Z would have an utrubi against Y as he was not holding it in stealth from him.
119
What were the possessory interdicts to regain possession?
Unde vi et unde vi et armata- ordered to restore land to the man who possessed not by force.
120
What were the features of such possessory interdicts?
The remedy lied only against the dispossessor
The title of either party is irrelevant
Only available if possession had not been obtained vi, clam or aut precario (force, fraud or chance)
121
What was the purpose of the interdicts?
Exhibitory- directed the production of a thing
Prohibitory- preventing wrongful interference
Restitution- undo a wrongful situation
122
What was Savigny's interpretation of possession/ why were only certain people allowed interdicts?
The requisite animus was an intention to hold the thing as one's own. The man who had this animus was to be granted the interdicts- does not explain why emphyteuta has interdicts
123
Ihering's interpretation
Corpus was the outward manifestation of ownership and was fundamental to possession. Animus is merely an intelligent acknowledgement of the factual situation
124
Thomas
Possession was first given to near-owners and then to owners actual or potential. Finally, it was given anonymously to mala fide possessors
