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Flashcards in Property Deck (45)
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1

Dominium

Dominium = ownership. This is distinct from possession, which refers to the factual matter of whom is in physical possession of the property.

2

Vindicatio

This was a claim made for direct ownership of the property. In vindictatio, C would assert their claim to ownership of property.

Formula would allow D to return the property to C, before condemning D to pay the value of the property if they failed to do so.

3

Requirements of dominium

1) Person had commercium - only Roman citizens were capable of owning property.
2) Property capable of private ownership, e.g. not public land.
3) Property acquired through appropriate method of acquisition - e.g. res mancipi had to be transferred through mancipatio or cessio in iure.

4

Corporeal rights

Res corpareales - rights to tangible property. E.g. right to ownership of chair.

5

Incorporeal rights

Res incorporales - rights that do not have a material existence, e.g. a rustic praedial servitude.

6

Methods of transferring property

1) Mancipatio - formal mode of conveyancing. Required bronze to be clashed against a set of scales. Process had to be carried out in front of 5 adult, male, Roman witnesses. Mancipatio was only available to Roman citizens.

2) Cessio in iure - another formal mode of conveyance. Involved the transfer of a right in the form of a fictitious trial in front of a magistrate. Also only available to Roman citizens.

3) Traditio - informal method which involved delivery of possession of the property to the buyer.

7

Res mancipi

This is a category of arguably the most important property, at least in early Roman society. Easier to set out list, rather than provide a broad definition.

1) Land
2) Slaves
3) Beasts of draft and burden
4) Rustic praedial servitudes

8

Beasts of draft and burden

Included animals which were used in early Roman society for farming and transporting goods, e.g. cattle and livestock. Therefore, seems that elephants and camels were excluded, since these were only introduced to Roman society after the res mancipi class was established.

9

Res nec mancipi

This category included everything else outside of the res mancipi category. Traditio could be used to transfer property in res nec mancipi.

10

Mancipatio - transfer of property

If just transfer of property, then the effect of the mancipatio was to transfer property immediately and unconditionally to the transferee.

However, if the mancipatio was part of a contract of sale for res mancipi, then typically ownership did not pass until the price was paid.

11

Cessio in iure - procedure

Gaius explained that cessio was performed before a magistrate with the transferor, transferee and property all present. Transferee grapsed the property and uttered same words as mancipatio. If transferor stayed silent, then property passed to the transferee.

12

Traditio

Transfer of property through delivery of possession of the goods. Property could be delivered to the slave/representative of the transferee.

a) Traditio longa manu - property delivered by being pointed at, provided it was in the sight of the parties.

b) Traditio brevi manu - transferee in possession of property and transferor allows him to keep it.

c) Constitutum possessorium - transferor agreed to pass ownership but retained temporary control.

13

Usucapio

Usucapio was a right to acquire ownership of property as a result of continuous possession. Allowed possession to be converted into dominium.

1 year period for movable objects; 2 years for immovable objects.

14

Usucapio - requirements

4 requirements:

1) Continuous possession for required period.
2) Individual must have acquired possession on a proper basis.
3) Individual must be acquiring ownership in good faith - Gaius says this means holding possession honestly.
4) Possession must not have been acquired through theft or taken by force.

15

Types of beneficiary from usucapio

1) Bonitary owners - individuals who acquired possession through a defective/failed transaction.

2) Possessors in good faith - individuals who met the other requirements of usucapio but did not acquire possession through failed transaction.

16

Actio Publiciana

Action created by urban praetor called Publicius in his edict. Essentially a fiction used by the judge that the period of continuous possession for usucapio had already elapsed. C does not necessarily have property rights yet through usucapio, but can claim as though they had them through the actio publiciana.

Actio publiciana essentially waived the need for the period of continuous possession for usucapio.

17

Possessory interdicts

Praetor started issuing these c. 200 BC. Interdict stated that until the trial was held, one of the parties could not interfere with the other party's right to possession.

Legal possession for a possessory interdict excluded certain acquisitions of possession:
1) By force.
2) Secretly.
3) By grant.

18

Uti possidetis

Possessory interdict for land. Legal possession through the interdict was typically awarded to the true owner.

19

Utrubi

Possessory interdict for movable goods. Praetor would generally grant possessory interdict in favour of whomever had held the property for the longest period that year.

20

Detentio

Party merely holding onto certain property. Different to legal possession granted as a result of the possessory interdict.

21

Interdicts de vi

Class of intercits designed to give even quicker legal possession to immovables, i.e. land. These were available to individuals who had been removed from their property by D - allowed them to restore possession by removing D from the land.

22

Unde vi

Ordered restoration of land to C who had been evicted by force, provided that C did not obtain possession in the first place by force, stealth or permission.

Claim for interdict unde vi had to be brought within one year.

23

De vi armata

Allowed recovery of possession without the limitation of a year, and even if C had obtained possession by force, stealth or permission ass against the evictor. Only applied if armed force had been used.

24

Rustic praedial servitudes

These were rights over land. Servitudes persisted for successors in title - lasted as long as the parties intended them to, and until they were terminated.

25

4 original rustic servitudes

1) Iter - right to walk.
2) Actus - right to lead animals.
3) Via - right to drive cart.
4) Aquae ductus - right to construct a waterway from a stream.

26

Deductio

Process of creating a rustic praedial servitude through two mancipatios. First transferred the entire land, and the second transferred the land back minus the rustic praedial servitude.

27

Urban praedial servitudes

Rights over land that arose in towns/urban areas. Gaius gives the example of right to light over property - X can obtain servitude over Y that Y's dominant tenement cannot obstruct the light to X's land.

28

Usufruct

Right to use and take the fruits of another estate. Used for commercial purposes - X merely transfers the benefit of the land to Y.

29

Usufructuary

Usufructuary had the right to benefit from the land, but was also required to preserve it. High standard of care - bonus paterfamilias.

Ulpian said that the usufructuary could improve the land, so long as he did not change its character.

30

Fruits of the land

1) Civil - income from hiring the property out, i.e. rent.
2) Natural - natural produce arising from the property.