Derivative modes of acquiring ownership

7.1.1 Mancipatio

(Inst.Gai.2.22-7.)

Mancipatio was of great importance in the history of Roman law. Originating before the Twelve Tables, it was regarded as the primary ius civile mode of transfer­ring res mancipi and continued to exist until the later Empire although by this time its function had changed substantially (see Capogrossi Colognesi, 'Ownership and Power in Roman Law', 524-5).

7.1.1.1 Formal requirements

The procedure in mancipatio was highly formal, as one would expect for the con­veyance of important property in the early stages of development of an ancient legal system. Gaius refers to mancipatio as an imaginary sale (Inst.Gai.1.119.), a description that gives some insight into the required procedure. A sale being the most common (but by no means only) causa for the conveyance. However, this statement is perhaps misleading since in practice mancipatio was frequently indis­tinguishable from an actual sale, especially in early law. According to Gaius, the conveyance required the presence of the transferor and transferee, the property to be transferred, at least five witnesses, and a libripens, i.e. a person holding scales (see Prichard, A. M., 'Terminology in Mancipatio' (1960) 76 LQR, 412-28, for a linguistic perspective on the terminology of mancipatio). The witnesses and the libripens had to be Roman citizens of age with commercium. The transferee grasped the property, asserted his ownership with set words, and struck the scales with a piece of bronze which he then handed to the transferor.

In the case of movables, it seems that only as much could be conveyed by one mancipatio as could be grasped. However, as regards a flock or herd of animals, one representative animal sufficed. As for land, a symbolic sod of earth or piece of turf was grasped: it need not have been from the actual land being mancipated (cf. Inst. Gai.1.121.). Thus, 'absent' land could be mancipated—the ceremony did not have to take place on the land or in its vicinity. This gave mancipatio at least one practi­cal advantage over traditio longa manu (see 7.1.3.1), which partly accounts for the lengthy survival of mancipatio. The set words consisted of an assertion of title to the property—the same as that used in a vindicatio—followed by a declaration of the purchase of the thing. The piece of bronze often constituted the actual price before the use of coinage became widespread (cf. Inst.Gai. 1.122.). The scales were used to weigh the bronze. Later, it became usual for the transferee to state the actual price at the end of the set words.

7.1.1.2 Legal effects

The basic rule was that a mancipatio of res mancipi transferred ownership (dominium') to the transferee (see Du Plessis, 'Property', 184-5). It is not clear whether a mancipa­tio of res nec mancipi had the same effect; but the transferee would almost certainly become owner in any case through traditio—the mancipation ceremony provided ample proof of intention and would invariably constitute a sufficient delivery. In the mancipation of res mancipi, ownership was transferred unconditionally (except that the transferor could reserve a servitude over the property) and immediately—it could not be postponed to take effect at some future time.

It became increasingly frequent in the Empire to record in a written document that a mancipatio had taken place. Eventually, the written memorandum came to be relied on as conclusive evidence of mancipation, even if the ceremony had not actually taken place—the mere record of it sufficed. This development may have contributed at first to the survival of mancipatio by obviating the necessity for car­rying out the formal ceremony. In due course, however, mancipatio came to be seen as an empty relic of a distant age. It was abolished by Justinian (see C.7.31.1.5.).

7.1.2 Cessio in iure

(cf. lnst.Gai.2.24.-7.)

Cessio had some similarities to mancipatio. It was a highly formal and cumber­some conveyance, originating before the Twelve Tables and fading in importance long before Justinian. Again, our knowledge of cessio is derived mainly from Gaius, who tells us (Inst.Gai.2.24.) that cessio was performed before a magistrate, such as the praetor (or governor), with the transferor and transferee present, together with the property to be transferred (or a symbolic sod of earth in the case of land).

Cessio could be used to transfer res mancipi and nec mancipi, although traditio would usually be much more convenient for the latter. As regards transferring res mancipi, cessio was even more cumbersome than mancipation because of the necessity for a praetor. As Gaius said (Inst.Gai.2.25.), there was no point in doing

something before a praetor that could be done 'before friends'. The chief uses of cessio were in relation to incorporeal things, e.g. creating servitudes, transferring inheritances. In addition, cessio was used in a procedural role in the law of persons, especially in adoption, emancipation, and manumission. Cessio passed ownership at once and unconditionally, subject to the possibility that a servitude could be reserved for the transferor (as in the case of mancipatio). Form was all important: as long as the cessio was correctly carried out, it seems that factors such as fraud and duress were irrelevant—the conveyance could not be impugned. It is not clear which remedy, if any, was available to a transferee if the transferor lacked title—the actio auctoritatis (see 7.1.1.2) does not seem to have applied to cessio. In any case, there was less scope for such problems to arise in cessio than in mancipatio, given the more limited uses to which the former was put.

7.1.3 Delivery (traditio)

(Inst.Gai.2.66.-9.)

Traditio was the transfer of ownership of a thing through delivery pursuant to a causa. It was by far the most widely applicable of the ins gentium modes of acquisition—the standard way of conveying res nee mancipi—and thus was of great practical importance. (See Hausmaninger, Gamauf, and Sheets, Casebook, 111-23.) For example, traditio was the mode by which the purchaser in the contract of sale normally acquired ownership (cf.

There were two basic essentials of traditio: there had to be a delivery and the appropriate intent.

7.1.3.1 Delivery

The essence of delivery was that the transferee should be put in possession of the property. This often took the form of an actual physical transfer, but the transferee did not have to be personally involved, e.g. delivery could be made to his slave or representative; and there was no need for a handing over or physical contact in all cases. Several forms of delivery were possible, apart from an actual physical transfer:

(a) Traditio longa manu This occurred when the property was indicated or pointed at, providing that it was within sight of the parties and capable of being taken at once into the transferee's control. This type of delivery was of obvious relevance in cases where the thing to be delivered could not easily be handled, e.g. land or heavy movables:

Paul, Edict, book 54:... there is no need for actual physical contact in order that possession may be taken; but that it can be done by sight and intent is demonstrated in the case of those things which, because of their great weight, cannot be moved, columns, for instance; for they are regarded as delivered, if the parties agree on their transfer in the presence of the thing... (D.41.2.1.21.)

(b) Traditio brevi manu This was the authorization by the transferor that the transferee could keep as his own a thing over which the transferee already had control.

Gaius, Common Matters or Golden Things, book 2: Sometimes, indeed, the bare intent of the owner, without actual delivery, is sufficient to transfer a thing, as when I sell you something that I have already lent or let to you or deposited with you; for although I did not place the thing with you for that reason, now the fact that I allow it to remain with you on the ground of sale makes it yours. (D.41.1.9.5.)

This passage (by Gaius) is perhaps somewhat misleading in suggesting that traditio could be effected by 'bare intent' alone. It would be more accurate to regard deliv­ery as essential in all cases of traditio, even if it consisted of words alone. The effect of those words was to put the transferee in possession of the property.

(c) Constitutum possessorium This occurred if the transferor agreed to pass owner­ship of the thing to the transferee, but the former retained temporary control. The agreement to pass ownership constituted the delivery since it was regarded as vest­ing possession and effective control of the thing in the transferee (he could termi­nate the transferor's temporary rights, for example). Constitutum possessorium was used particularly to facilitate leaseback arrangements whereby the vendor became a tenant of the property with detentio. It avoided the need for an actual deliv­ery of the property between the parties. The concept of constitutum possessorium remains an important element in modern law: e.g. section 930 BGB (Bürgerliches Gesetzbuch—the German Civil Code) provides that if an owner possesses a thing, a purchaser may obtain indirect possession from him through an agreed legal rela­tionship instead of delivery (see Hausmaninger, Gamauf, and Sheets, Casebook, 39-45).

(d) Symbolic delivery In the late Empire recognition was given to a type of deliv­ery that can best be described as 'symbolic' (the term is medieval, not Roman). The chief examples were when a document was drawn up recording a transfer of property, or when keys to a building were handed over (the parties not being pre­sent at the site).

7.1.3.2 Intention and iusta causa

Both parties had to intend that ownership (and not merely possession) should be transferred by the delivery. Evidence of the required intention was provided by iusta causa ('a lawful cause'), i.e. a legal ground that was the reason for the delivery of the thing, and by which ownership normally passes, e.g. a sale, gift, or exchange, but there is great controversy as to whether iusta causa (as a separate requirement from the intention to transfer ownership by way of traditio) was always required in classi­cal Roman law (see Pugsley, D., 'Was Justa Causa Necessary for Traditio in Roman Law?' (1974) THRHR, 13-17; Gordon, W. Μ., 'The Importance of the Iusta Causa of Traditio', in New Perspectives, 123-35, for a discussion of the iusta causa requirement in Roman and Scots law). The sources suggest that a iusta causa was probably neces­sary in every valid traditio:

Paul, Edict, book 31: Bare delivery of itself never transfers ownership, but only when there is a prior sale or other ground on account of which the delivery follows. (D.41.1.31pr.)

The precise role of iusta causa has provoked much controversy. It has been questioned whether iusta causa was essential in all cases, and, if it was, whether it consisted of a transaction or the parties' agreement concerning the transaction. See, e.g., Evans- Jones, R. and MacCormack, G., 'Iusta Causa Traditionis', in New Perspectives, 99, who affirm the dominant view: 'In classical law traclitio was a "causal" transaction in the sense that, for ownership to pass through delivery, a valid antecedent causa was required. Such a causa consisted in a transaction or legal act that the law held to be sufficient for the passing of ownership. There is no firm evidence that any classical jurist identified causa either with the mere common intention to transfer and receive ownership or with the agreement of the parties as to the purpose of the transaction' (109).

What if the parties were mistaken as to iusta causa? For example, the transferor may have intended a sale, whereas the transferee thought that he was receiving a gift. Such mistakes were examples of putative (i.e. mistaken) iusta causa. The genera] rule was that mistakes were not fatal to a valid traclitio provided that each party had the required intention—to pass and receive ownership.

An illustration by Julian;

Julian, Digest, book 13: When we indeed agree on the thing delivered but differ over the grounds of delivery, I see no reason why the delivery should not be effective; an example would be that I think myself bound under a will to transfer land to you and you think that it is due under a stipulation. Again, if I give you coined money as a gift and you receive it as a loan, it is settled law that the fact that we disagree on the grounds of delivery and acceptance is no barrier to the transfer of ownership to you. (D,41.1.36.)

The 'coined money' example may seem perplexing at first since the transferee received the money believing it to be 'a loan'. However, in such a situation, the transferee normally receives ownership of the money: if you borrow money from a friend, you are not expected to give back the very coins or notes that you receive, but only an equivalent. The actual money transferred becomes yours. Hence, in Julian’s example, the transferee was regarded as having the intention to receive ownership, even though he thought that he was receiving a 'loan'. It would have been different if the transferred property had been a chariot: the transferee would not have acquired ownership, as he would not have intended to receive ownership. Julian's view appears inconsistent with that of Ulpian (D.12,1.18pr.) but was the one that ultimately prevailed. Both texts have been suspected of interpolation. W. M. Gordon (cited earlier) suggests that, notwithstanding the debate engendered, iusta causa may not have been as important an issue in practice as has been assumed. See New Perspectives, 123.

Mistakes could occur not only in relation to iusta causa but also, e.g., as to the identity of the property or of the transferee. Such mistakes, if material, could pre­vent a valid traditio. As to property, the crucial issue was whether there was an intention that ownership should pass of the thing actually delivered—if there was, the traditio was valid; but not otherwise. As for mistaken identity, it appears that a traditio was invalid if the transferee was not the person to whom the transferor intended to pass ownership. Such mistakes usually arose because of the dishonesty of the transferee: indeed, the illustrative texts on mistaken identity are mainly con­cerned with theft. Moreover, they suggest that a fraudulently induced mistake as to the attributes of the transferee could be fatal to a valid traditio:

Ulpian, Edict, book 37: I wish to lend money to a respectable Titius and you present to me a penniless Titius, as If he were opulent, and then share the money with him; you will be liable for theft since theft is committed through your advice and assistance; Titius will also be liable for theft. (D.47.2.52.21.)

However, a traditio could be valid even though the transferor did not have any par­ticular transferee in mind (traditio mcertae personae), e.g. a politician throwing coins into the crowd:

Gaius, Common Matters or Golden Things, book 2:... the will of the owner may confer owner­ship on an unidentified person; this is so when he showers largesse on a mob; he does not know who will pick up what, but because he wishes anyone who picks something up to keep it, he makes him owner thereof forthwith. (D.41.1.9.7.)

Cessio and mancipatio, together with traditio, comprise the Roman modes of con­veying property inter vivos. tn each case the conveyance was subject to the nemo dat principle but it is not clear when this principle was established: it may have been post-classical (see Schulz, Classical Roman Law (1951), 351-2). English law has broadly followed the nemo dat principle, but in modern continental systems there has been a greater readiness to accept that a possessor can give good title to a bona fide purchaser for value.

7.2