Classification of Things

Before examining property rights over individual objects, it is apposite to consider briefly the kinds of property that existed in Roman law.

The various classifications are generally the result of historical development and represent an attempt at systematizing the relevant part of private law.

A first distinction was between things governed by divine law (res divini iuris) and those subject to human law (res humani iuris).^{^[320]} Under divine law were things dedicated by order of the Roman people to the gods above, such as temples and altars (res sacrae); things dedicated to the gods of the underworld, such as tombs (res religiosae); and things deemed to be under the protection of the gods because of the purposes they served, such as the walls and gates of a fortified city (res sanctae).^{^[321]} Things under divine law were not susceptible to private ownership (res extra nostrum patrimonium or res extra commercium). The res humani iuris were either public or private. The former were owned by the state and included public roads, bridges, harbors and navigable rivers.^{^[322]} Some things were classed not as public but as common to all mankind (res communes), such as the air, the sea, and running water.^{^[323]} A further category of things were the res universitatis: those belonging to a particular city or municipality for the use and enjoyment of its inhabitants, such as theatres, public baths, sports grounds, halls of justice and the like.^{^[324]}

Things were further classified into corporeal (res corporales) and incorporeal (res incorporales). The former were things that could be touched or perceived by the senses such as a garment, an ox, a table or a house; the latter were intangible things or things not capable of sensory perception that the law recognized and protected, such as real and personal rights.^{^[325]} Although primarily academic and philosophical in nature, the distinction between res corporales and res incorporales had some practical importance. This emanated from the fact that only corporeal things could be possessed and consequently several legal concepts with respect to which possession played an essential part were not applicable to res incorporales.

Because incorporeal objects could not be physically seized as required for possession to exist, they thus could not be acquired or transferred by any method involving the acquisition or transfer of possession.^{^[326]}

The principal division of things that could be privately owned (res in nostro patrimonio or res in commercio) was between res mancipi and res nec mancipi.

Res mancipi, a category that was early fossilized, were land and buildings situated on Italian soil^{^[327]}; slaves; farm animals of draft and burden, such as oxen, horses, mules and donkeys; and rustic (not urban) praedial servitudes (servitutes rusticae), for example rights of way and of water over land.^{^[328]} Since these were the most important assets in the early Roman agricultural society, ownership over them could be transferred only in a formal manner by way of mancipatio or in iure cessio. All other things were res nec mancipi. With respect to the latter, ownership could be transferred informally by simple delivery (traditio).

3.3.2

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Classification of Things

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