Contractual proprietary interests

As a general principle, a contract could give rise only to contractual obligations, i.e. rights in personam, and not to proprietary interests (rights in rem). There were some exceptional instances, however, where a contractual agreement was regarded as cre­ating interests in property, without the need for any other legal formality.

6.4.1 Emphyteusis

(C.4.66)

Emphyteusis originated as a perpetual or long lease of land (belonging to the State or to a city) to a private individual in return for a ground rent. In the Empire, grants to private persons of provincial land became common; often the grant would be followed by a sublease by the grantee. Thus, the transfer of such land came to have important conse­quences for private law in the later Empire. The tenant was eventually given protection by proprietary remedies, providing that he did not default in payment of the rent:

Paul, Edict, book 21: It is accepted law that those who take a lease of land from a municipality, to be enjoyed in perpetuity, although they do not become owners, yet have an action in rem against anyone who has taken possession and even against the municipality itself; [Ulpian, Sabinus, book 17\ [2]: so long, that is, as they pay the rent-charge. (D.6.3.1.1., 2.)

The tenant could sell the land, but the owner had the right of first refusal. If the lat­ter chose not to buy, he was entitled (under Justinian) to 2 per cent of the purchase price. The tenant generally could deal freely with the land (e.g. he could mortgage the property), create servitudes, leave it to his heirs; and he was entitled to fruits. Clearly, the position of the tenant in emphyteusis in late law approximated to that of a dominus; he was even given a modified vindicatio to protect his interest. However, the tenant had to ensure that the property was returned substantially unimpaired in the event of the termination of the interest (e.g.

Although emphyteusis originally created only contractual obligations, its later development was clearly that of a proprietary interest—in some respects akin to ownership, in other respects similar to a servitude.

6.4.2 Superficies

(D.43.18.)

Superficies originated in grants by the State or municipalities of land for build­ing purposes. The institution grew in importance when private subleasing became popular in the later Empire. When the tenant constructed buildings on the land, he did not become their owner since they attached to the land:

Ulpian, Edict, book 70: We mean by superficiary buildings those that are sited on leased land. By both civil and natural law their ownership belongs to the owner of the land. (D.43.18.2.)

In order to encourage building on such land, tenants were given the protection of a special interdict by the praetor. In late law, superficies came to be regarded as a full proprietary right in rem, the tenant being in a position similar to that in emphyteusis. Although the affinity of superficies to ownership and servitudes is clear, it was not classed as belonging to either category.

6.4.3 Real security

Through the contracts of pledge and hypothec (see 9.5.4), a creditor could acquire a lim­ited real right (possession protected by interdicts—see 6.5.5.1) over property belonging to a debtor. For a more expansive discussion of this, see Nicholas, Introduction, 149-53.

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