law of property pt.2 Flashcards
(152 cards)
1
Q
What is occupatio
A
The first taker of ownerless property becomes its owner.
2
Q
What does it mean for property to be ownerless?
A
Property could be ownerless because it had never been owned before
or because the previous owner had intentionally ceased to be the owner.
3
Q
What is the term used for the method of resolving disputed ownership of property?
A
Prima facie.
4
Q
What are examples of things that had never had owners? (and were therefore res nullius)
A
- Islands arising in the sea
- Gems found on the seashore
- Wild animals.
5
Q
How are animals classified in law?
A
Animals are classed as wild or tame by nature, the test being whether the animal belonged to a species designated as wild or tame,
or whether it was wild or tame in its habits
6
Q
What constitutes ownership over a wild animal?
A
To acquire ownership, it is necessary to take effective control of it.
7
Q
True or False: Wounding a wild animal without capturing it is sufficient for ownership.
A
False.
8
Q
When do animals with the habit of returning cease to be owned?
A
They cease to be owned only when they abandon the habit.
9
Q
What happens to the owner of a wild animal if it escapes from control?
A
The owner ceases to be responsible for any damage caused thereafter.
the owner no longer owns the animal
10
Q
What special rule applies to enemy property during war?
A
the property does not become public property, but instead becomes that of the first taker
11
Q
What is required for someone to become the owner of abandoned property?
A
The first taker must have the intention of acquiring it.
12
Q
What is the test for abandonment?
A
The owner must have intended to rid himself of the property, no longer caring about its destination.
13
Q
Who disputed the question of when ownership is lost upon abandonment?
A
The Sabinians and Proculians.
14
Q
What is accessio?
A
The inseparable attachment of things belonging to different owners, where one thing is incorporated into another.
15
Q
What is the general rule regarding ownership in accessio?
A
The owner of the principal thing becomes the owner of the whole thing.
16
Q
Define commixtio.
A
The mixing of things belonging to different owners that are readily inseparable.
17
Q
What happens if commixtio is done without agreement?
A
The things would be separated and returned to their respective owners.
18
Q
What is confusio?
A
Mixing of things that are not readily separable, where ownership is shared in proportion to value.
differs from accessio in that it is not possible to tell which is the principal thing
19
Q
What is the principle behind accessio affecting land?
A
Anything attached to land becomes part of it, as land is regarded as the principal thing.
20
Q
What happens when A builds a house on B’s land?
A
B owns the house since the land is considered the principal thing.
21
Q
What is the legal position if B builds on his land with A’s materials?
A
A retains a dormant right to reclaim the materials when the building comes down.
22
Q
What is the ius tollendi?
A
The right to remove one’s materials from a structure when vacating the premises.
23
Q
What happens if A sows seeds belonging to B in B’s land?
A
B becomes the owner when the seeds take root.
24
Q
What is avulsio?
A
When an identifiable piece of land is carried by a river current and deposited against the land of another.
25
What occurs if a river floods land but does not recede?
The ground covered by the river is partly lost to its previous owner.
26
What are examples of accessio affecting movables?
* Textura
* Ferruminatio et plumbatura
* Scriptura
* Pictura.
27
What is the debate surrounding the principal and accessory in accessio of movables?
Determining which item is principal and which is accessory can be challenging.
28
Who is considered the owner of a painting made on another person's tablet?
A, the painter
## Footnote
The predominant view is that the painter owns the painting regardless of the tablet's ownership.
29
What test is applied to determine ownership in the case of a painting on a tablet?
The identity test
## Footnote
This test states that the picture gives the essence or overall character to the resulting thing.
30
What was Justinian's reason for adopting the predominant classical view on ownership?
Relative value
## Footnote
Justinian's view differed from the classical view by focusing on the relative value of the two items.
31
How does the identity test work when there is a clear difference in the relative value of two things?
It works well and fairly
## Footnote
For example, if a valuable artist like Rembrandt painted on a less valuable canvas.
32
What happens if a person paints on someone else's canvas?
The owner of the canvas may not necessarily own the painting
## Footnote
This situation raises questions about ownership and compensation.
33
In terms of writing, what is the position regarding ownership of the parchment?
Writing accedes to parchment
## Footnote
This holds even if the writing is more valuable, such as when done in gold leaf.
34
What is the problematic distinction made between paintings and written script?
The identity test's application
## Footnote
It raises questions about whether the character of parchment is determined more by the script than by the parchment itself.
35
What is the general position on compensation for the owner of the accessory thing after inseparable attachment?
Depends on who attached the things
## Footnote
If the owner of the principal thing attached the items in bad faith, they are liable for theft but still own the items.
36
What happens if the owner of the principal thing acted in good faith?
They are not liable to compensate
## Footnote
This holds until the later Empire when an action for the value of the accessory thing was allowed.
37
What can the owner of the principal thing do if they are not in possession?
Obtain the property by vindicatio
## Footnote
This requires paying for the value of the accessory thing.
38
What defense can the owner of the accessory thing use against the owner of the principal thing?
Exceptio doli
## Footnote
This defense argues it is fraudulent for the owner of the principal thing to obtain the property without compensation.
39
What happens if the owner of the accessory thing is responsible for the attachment?
Deemed to have made a gift of the thing
## Footnote
This applies if they acted with full knowledge of the facts.
40
What is the remedy for the owner of the accessory thing if they acted in good faith?
No remedy if out of possession; entitled to compensation if in possession
## Footnote
This is a general rule applicable to ownership and compensation.
41
What does a dubious text in D.41.1.9.2. suggest regarding the owner of the tablet and the painting?
Entitled to the painting if they pay 'the cost of the painting'
## Footnote
This implies a differing decision on ownership in the case of paintings.
42
What is *specificatio*?
*Specificatio* was a method of acquiring ownership by the creation of a new thing out of someone else’s materials
## Footnote
For example, if A made wine out of B’s grapes, A owned the wine.
43
What was the Proculian view on *specificatio*?
The Proculian view treated *specificatio* as a special form of occupatio where the created thing was regarded as a res nullius at the moment of creation
## Footnote
This view suggests that the creator could claim ownership as the first occupier.
44
What was the intermediate view adopted by Justinian regarding ownership of newly created things?
The new thing belonged to the creator if it was not reducible to its original form; if it was reducible, the owner of the original materials owned the new thing
## Footnote
Ownership was based on the potential for reducibility, not necessarily the actual reduction.
45
What defines a *nova species*?
A *nova species* must have an identity and a name of its own; it cannot simply be an altered or improved thing
## Footnote
For example, crushing grapes does not create a new thing, but making wine from grapes does.
46
What happens to ownership if the creator acted in bad faith?
The creator could be sued for theft but was still entitled to the new thing
## Footnote
This highlights the distinction between good faith and bad faith actions in terms of ownership.
47
What are the two types of fruits classified in Roman law?
* Natural fruits
* Civil fruits
## Footnote
Natural fruits are produced by nature, while civil fruits include income like rent.
48
How is ownership of natural fruits acquired?
Ownership of natural fruits can be acquired through *separatio* or *perceptio*
## Footnote
*Separatio* refers to severance from the property, while *perceptio* refers to the gathering of the fruits.
49
What is the significance of severance in relation to fruit ownership?
Ownership of fruits is acquired as soon as severance occurs, regardless of gathering
## Footnote
For example, apples falling from a tree are considered severed and owned.
50
What is the role of the bona fide possessor in relation to fruit ownership?
The bona fide possessor appears as the owner and may have produced the fruits through their own labor
## Footnote
However, if they discover they are not the owner, they lose entitlement to the fruits.
51
What does *emphyteusis* refer to?
It refers to a long or perpetual lease where the tenant is entitled to the fruits of the land upon severance
## Footnote
This signifies a form of ownership rights granted to tenants.
52
How is ownership of fruits acquired through gathering?
Ownership is acquired by physically collecting or gathering the fruits
## Footnote
This can be done personally or through an agent, such as a slave.
53
What is the distinction between the colonus and the usufructuary regarding fruit ownership?
The colonus must gather fruits to acquire ownership, while the usufructuary has a right to fruits that is not dependent on the owner's consent
## Footnote
This reflects the differences in possession and rights related to property.
54
What defines treasure in Roman law?
Treasure includes valuables secreted in land, not things that are dropped, lost, or abandoned
## Footnote
The owner must be untraceable for the treasure to qualify.
55
Who owned treasure found on land according to early Roman law?
Treasure belonged to the landowner on the principle of accessio, regardless of their knowledge of its existence
## Footnote
This principle indicates that things found in land accede to the land.
56
What was the rule established by Emperor Hadrian regarding found treasure?
The finder was entitled to all of the property if found on their own land, or shared with the landowner if found on another's land
## Footnote
This rule aimed to reward initiative in finding treasure.
57
What is *adiudicatio*?
*Adiudicatio* is a judge's award of ownership of property in partition or divisory actions
## Footnote
It grants rights to parties that they did not have before, often in cases of inheritance or partnership.
58
What happens during an adiudicatio when dividing an inheritance?
The judge can order equalizing payments if the division results in unavoidable inequality
## Footnote
This ensures fairness among joint heirs.
59
What is the judge's role in the action for regulating boundaries?
The judge may alter boundaries and order compensation for the neighbor who loses land
## Footnote
This action aims to resolve disputes over property lines.
60
what are some examples of wild animals
birds, fish
61
what is an example of 'effective control' over an animal
if it has a habit of returning
62
What type of obligations can a contract give rise to?
Contractual obligations (rights in personam)
## Footnote
Contracts do not typically create proprietary interests (rights in rem) except in exceptional instances.
63
Define emphyteusis.
A perpetual or long lease of land to a private individual in return for a ground rent.
64
In the context of emphyteusis, what protection did tenants receive?
Protection by proprietary remedies if they did not default in payment of rent.
65
What right did the owner have if the tenant sold the land under emphyteusis?
Right of first refusal.
66
If the owner chose not to buy the land sold by the tenant, what were they entitled to under Justinian's law?
2 percent of the purchase price.
67
What rights did the tenant generally have under emphyteusis?
* Sell the land
* Mortgage the property
* Create servitudes
* Leave it to heirs
* Entitled to fruits.
68
How did the position of the tenant in emphyteusis compare to that of a dominus?
It approximated to that of a dominus.
69
What was required of the tenant regarding the property at the termination of the interest in emphyteusis?
It had to be returned substantially unimpaired.
70
How could emphyteusis be created or ended?
Created by will or contract; ended through expiry of term, forfeiture, destruction of land, or death without heirs.
71
What is superficies?
Grants by the State or municipalities of land for building purposes.
72
What happened to buildings constructed on land under superficies?
The tenant did not become their owner as they attached to the land.
73
What protection was provided to tenants under superficies to encourage building?
Protection of a special interdict by the praetor.
74
How was superficies classified in late law?
Regarded as a full proprietary right in rem.
75
What contracts allow a creditor to acquire a limited real right over a debtor's property?
Contracts of pledge and hypothec.
76
What is the distinction between ownership and possession?
Ownership is the ultimate entitlement to property, while possession is physical control protected by possessory interdicts.
77
Define possession in the context of property law.
Possession refers to effective control over objects to which the legal system ascribes a specific meaning.
78
True or False: In Roman law, possession and ownership are always synonymous.
False
79
What is usucapio?
Usucapio is the acquisition of ownership through possession for a prescribed period of time.
80
List the three types of possession recognized in Roman law.
* Interdictal (legal) possession
* Civil (usucapio) possession
* Natural (detentio) possession
81
What is the significance of corpus in acquiring possession?
Corpus refers to the effective physical control of the property, which is necessary to acquire possession.
82
What does animus refer to in the context of possession?
Animus refers to the mental intent or awareness of holding the property as one's own.
83
Fill in the blank: A person could not possess without taking effective physical control of the property, known as _______.
[corpus]
84
Who can acquire possession for another?
A slave for the master, a child for the paterfamilias.
85
What is the role of possessory interdicts?
Possessory interdicts are remedies issued by the praetors to protect possession in disputes.
86
True or False: A thief can be regarded as having possession under Roman law.
True
87
What are the two elements required for possession according to Paul?
* Physical control (corpus)
* Mental intent (animus)
88
What happens to possession upon the death of the possessor?
Possession ends and does not automatically pass to the heir unless they take physical control.
89
What is the interdict unde vi used for?
It is used to recover possession of property that has been taken by force.
90
How did the concept of possession evolve in Roman law?
Possession became a form of presumptive ownership, requiring effective remedies for protection.
91
What is the difference between possessory interdicts and vindicatio?
Possessory interdicts are speedier and less cumbersome than vindicatio in disputes about possession.
92
What is a derivative possessor?
A derivative possessor is someone whose holding is derived from the dominus.
93
Fill in the blank: Possession could be retained even if the possessor lost _______.
[animus or corpus] (in exceptional situations)
94
What is detentio?
Detentio is natural possession, which consists of being in physical control or custody of a thing but is not regarded as true possession.
95
What is the legal status of a usufructuary in terms of possession?
A usufructuary is not regarded as having possession despite having rights to use and enjoy property.
96
List the classifications of possessory interdicts based on their purpose.
* Acquiring possession
* Retaining possession
97
Who is regarded as having possession in Roman law?
Persons in physical control of property as owners, potential owners, or acting as if they were owners.
98
What interdict was appropriate for land possession?
uti possidetis
## Footnote
Uti possidetis is a legal term meaning 'as you possess.'
99
What interdict was appropriate for movable property?
utrubi
## Footnote
Utrubi refers to the interdict for movables based on possession.
100
Under what conditions did the possessor succeed in interdictal proceedings?
Possession not acquired by force, stealth, or permission (nec vi, nec clam, nec precario)
## Footnote
These Latin phrases denote methods of acquiring possession that invalidate the claim.
101
What was the primary focus of interdictal proceedings?
The position of the possessor against his opponent
## Footnote
This means the proceedings were concerned with who had the valid claim to possession.
102
What did Paul state regarding uti possidetis?
Possession was normally awarded to the actual possessor
## Footnote
This highlights the principle that actual physical possession is favored in legal disputes.
103
In utrubi, how was possession awarded?
To the party that had been in possession for the longer time in the previous year
## Footnote
This emphasizes the importance of duration in possession disputes.
104
What remedies were available where force had been used to obtain possession?
* utrubi for movables
* unde vi for immovables
* de vi armata for immovables
## Footnote
These remedies address different circumstances of possession and eviction.
105
What did the interdict unde vi order?
Restoration of land to one evicted by force
## Footnote
This interdict protects the rights of those forcibly removed from their property.
106
What was the time limitation for seeking the interdict unde vi?
Within a year
## Footnote
This limitation underscores the urgency in reclaiming possession after eviction.
107
What was the purpose of de vi armata?
Allowed recovery of possession without the limitation of a year
## Footnote
This interdict provided broader protections against armed eviction.
108
What constituted armed force under the interdict de vi armata?
Use of armed force by an individual or gang
## Footnote
The definition of armed force was crucial for applying this interdict.
109
What decree was issued in AD 389 regarding property claims?
Owners who forcibly seized property forfeited ownership and possession
## Footnote
This decree aimed to reduce violence in property disputes.
110
What happened to the interdicts unde vi and de vi armata after the AD 389 decree?
Unde vi became infrequently used and de vi armata disappeared altogether
## Footnote
The decree significantly diminished the relevance of these interdicts in legal proceedings.
111
What is a gift (donatio) in legal terms?
A ground of acquisition of ownership constituting iusta causa in traditio and usucapio.
## Footnote
A gift is not a mode but a reason for acquiring ownership.
112
How does Justinian treat gifts in relation to ownership?
He treats gifts as methods of acquiring ownership.
## Footnote
This is a confusing aspect as gifts are typically a ground of acquisition.
113
What is the general rule regarding the transfer of ownership in a gift?
Ownership is transferred through delivery of the property comprised in a gift.
## Footnote
There are exceptions where a gift could pass ownership without delivery.
114
What are 'donatio inter vivos'?
Gifts fully operative in the donor's lifetime.
## Footnote
These gifts were subject to detailed rules.
115
What was the enforceability of a formal agreement to make a gift?
A formal agreement, such as a stipulatio, was enforceable, while informal arrangements were not in early law.
## Footnote
The position relaxed under Justinian, allowing informal agreements to become enforceable.
116
What restrictions were placed on parties involved in a gift?
Gifts between husbands and wives were banned, except for dowry and donatio propter nuptias.
## Footnote
Gifts between a paterfamilias and those in his power were generally invalid unless the child was out of potestas.
117
What did the lex Cincia provide regarding gifts?
It stated that gifts above a certain limit were unenforceable except in favor of relatives.
## Footnote
The limit itself is unknown, but the law aimed to discourage ostentation.
118
What was the registration requirement under Justinian for gifts?
All gifts over 500 solidi had to be registered.
## Footnote
Unregistered gifts were void to the extent of the excess, except for gifts to the Church, Emperor, or charity.
119
What was the general rule regarding the revocation of a gift?
Once a gift was made, it could not be revoked.
## Footnote
Exceptions existed if the gift was made subject to a limitation or for a specific purpose that was not satisfied.
120
What is a gift mortis causa?
A gift made in contemplation of death.
## Footnote
It can be due to general contemplation or fear of an impending danger.
121
How does ownership transfer in a gift mortis causa?
Ownership usually passes to the donee on making the gift, but it is revocable before death.
## Footnote
Automatic revocation occurs if the donee predeceases the donor or if the donor becomes bankrupt.
122
What are the restrictions on gifts mortis causa compared to inter vivos gifts?
Gifts mortis causa are not subject to the lex Cincia or restrictions on gifts between spouses or parents and children.
## Footnote
They can generally be made in the same way as inter vivos gifts.
123
What additional method for making gifts mortis causa did Justinian provide?
Gifts could be made in the presence of five witnesses, similar to a testamentary legacy.
## Footnote
Possession of the property was not transferred until the donor's death.
124
What is the essential difference between a gift mortis causa and a testamentary gift?
A gift mortis causa is valid without a will, operating outside any will the donor might have made.
## Footnote
In classical law, the donor could not revoke the gift.
125
What trend was observed during the Empire regarding gifts mortis causa?
There was a tendency to assimilate such gifts with legacies by applying common rules to both.
## Footnote
This reflects an evolving legal understanding of gifts and legacies.
126
What is a servitude?
A proprietary right involving the use of another person's property
## Footnote
Examples include rights of way.
127
What is the servient thing?
The property subject to a burden in favor of the holder of the servitude.
128
Can a servitude exist over another servitude?
No, a servitude cannot exist over a servitude.
129
What are the two types of servitudes?
* Personal servitudes
* Praedial servitudes
130
What is usufruct?
The most important personal servitude, allowing use and enjoyment of another's property.
131
When were personal servitudes possibly recognized as servitudes?
Possibly only in Justinianic law.
132
What principle states that a servitude cannot be established over one's own property?
No servitude over your own property.
133
What happens to a servitude if the beneficiary acquires the servient property?
The servitude ceases.
134
Can servitudes be possessed?
No, servitudes cannot be possessed.
135
What must servitudes do to be valid?
They must benefit the persons entitled to them.
136
True or False: A servitude created purely to irritate the servient owner is valid.
False.
137
How must servitudes be exercised?
In a reasonable manner.
138
What is the general rule regarding duties imposed by servitudes?
Servitudes do not impose active duties on the servient owner.
139
What is an exception to the rule that servitudes do not impose active duties?
If neighbors share a common wall, each has a duty to support the other's wall.
140
What are praedial servitudes?
Rights a person has by virtue of ownership of land over the land of another.
141
Do praedial servitudes run with the land or with the person?
They run with the land.
142
What is the duration of praedial servitudes?
They are regarded as perpetual.
143
What classification exists for praedial servitudes based on use?
* Urban servitudes
* Rustic servitudes
144
What distinguishes urban servitudes from rustic servitudes?
Urban servitudes concern the use of buildings, while rustic servitudes concern the use of land.
145
What is the significance of a servitude being classified as res mancipi?
Some rustic servitudes were res mancipi; urban ones were not.
146
What rights are included in urban praedial servitudes?
* Right of support from a common wall
* Right to lay and maintain drains
* Right to have one's view unobstructed
147
What is a counter-servitude?
A form of release from existing servitudes.
148
What are rustic praedial servitudes?
The oldest servitudes, predating the Twelve Tables, concerning land use.
149
What was the most important rustic servitude?
The right to channel water over another's land (aquae ductus).
150
What is the legal status of flowing water under the doctrine of res communes?
It cannot be owned privately while in flow.
151
What additional rustic servitudes allowed for the taking of natural produce?
* Right to dig for lime or sand
* Right to pasture or water cattle
152
What issue arises when more than the permitted number of animals is watered on the servient tenement?
There was disagreement among jurists on whether the whole herd could be stopped.
