DERIVATIVE MODES CONVEYANCES

Mancipatio, in iure cessio. We have already examined these two conveyances of the civil law.^{^[47]} Both have disappeared from the law of Justinian, though neither was ever formally abolished.

In iure cessio was in practice confined to the conveyance of incorporeal things, and had probably ceased to be used even for this purpose long before the time of Justinian. Mancipatio was deprived of any possible function in the law of property when Justinian abolished the distinction between res mancipi and res nec mancipi,^{^[48]} but this was probably no more than the recognition of existing practice. Even in the classical law it is a matter for speculation how far the actual use of scales and bronze survived. There are plenty of documents from this period which record, in words which are obviously common form, that a donee or a purchaser of a res mancipi ‘received it by mancipation but we may wonder whether the parties were not often content to let the record do duty for the act. This was certainly what eventually happened in the West, where references to mancipation appear in documents even after the time of Justinian, but in a form which makes it clear that even the meaning of the word has been forgotten. The transferor simply declares that he ‘hereby mancipates’ the thing; and a century or two earlier the Epitome of Gaius which is partially preserved in the lex Romana Visigothorum explains that a mancipatio is a handing over. It is probable that in the Greek-speaking East it had lost even this shadow of life long before the time of Justinian.

Traditio. The only conveyance which survived in the law of Justinian was simple delivery, or rather delivery based on a valid ground or ‘cause’ (iusta causa) for the passing of ownership.

For delivery is in law a colourless act. It derives its legal colour from the circumstances in which it is made. If I hand you my ring in pursuance of an agreement to sell it, I give you ownership ; if I hand it to you as security for a debt (pignus), I give you possession; and if I hand it to you on hire I give you only detention. In technical language, the effect of a traditio depends on its ‘cause’, and ‘cause’ in this context means the parties’ agreed purpose in making the traditio. In the case of my selling you my ring the ‘cause’ of the traditio is the fulfilment of the sale. Other ‘causes’ for the passing of ownership are the payment of a debt, the making of a mutuum (a loan, e.g. of money, in which it was not expected that the specific object would be returned), the making of a gift, &c. It was the agreement as to the purpose which mattered and not its fulfilment, and therefore if the agreed purpose was the fulfilment of a sale the traditio was effective to pass ownership even though the sale was in law void and therefore incapable of fulfilment (e.g. because of a mistake). Again, it was not sufficient that the parties had a common intention to pass ownership if they had no common mind as to the ‘cause’ for their doing so; for example, if I delivered to you a sum of money with the intention of making a loan {mutuum}, and you took it in the belief that it was a gift, we both indeed intended that ownership should pass, but we were not in agreement as to why, and therefore the traditio could pass only possession. This, elusive as it is, would seem to be the doctrine of the classical law, but the question is much debated. Certainly the law of Justinian was otherwise. The last-mentioned rule had been reversed and a common intention to pass ownership sufficed, the ‘cause’ being merely one way of evidencing that intent. In the language of the commentators, traditio was no longer a causal but an abstract conveyance. Its validity depended not on any ‘cause’ external to itself, but simply on there being a handing over with the intention to pass ownership.

Mancipatio and in iure cessio were abstract in the same sense: it was sufficient that the formal act had been performed; the reason why was irrelevant.

Traditio requires in principle the acquisition of possession animo et corpore by the recipient, and it is the latter of these two elements which distinguishes traditio from a conveyance by mere consent and which therefore preserves the fundamental distinction between conveyance and contract. The classical lawyers therefore insisted on a certain minimum of physical transfer. In order to define that minimum they marked off certain typical situations in which the physical element, though attenuated, was sufficient, and the names which they or their successors gave to these typical situations have become part of the lingua franca of the Civil lawyer and to some extent even of the Common lawyer.

(a) Traditio longa manu. In the case of immovables or of bulky movables a physical transfer in any literal sense is obviously impossible. If I wish to give you possession of a pile of logs, it is sufficient if I point them out to you; to require that you should touch them would be simply pedantic. But it is not sufficient that I should simply tell you where they are: you cannot get possession until you are actually in sight of them. The traditional example of this ‘long-handed delivery’ is that of my giving you possession of land by taking you up a nearby tower and pointing it out to you.

A variant of this is what the commentators call ‘symbolic traditio'. I wish to give you possession of the contents of my warehouse and therefore give you the keys. For the classical lawyers this is not symbolic at all, for they require that the keys be handed over at the warehouse, and this is as physical a delivery of the contents as is reasonably possible; but in Justinian’s law it seems that the delivery of the keys might take place anywhere at all, and once this concession is made the keys become merely the symbol of what is delivered.

(6) Traditio brevi manu.

I lend you a book and later agree to sell it to you. Must I take it back from you and then hand it over again? Clearly not, but the line between this and conveyance by consent is fine. Some lawyers simply conceded that this was a case of delivery animo solo, but it is better analysed as one in which corpus and animus are separated. The physical delivery precedes the intention.¹

(c) Constitutum possessorium. This is the converse of traditio brevi manu. I sell you a book but we agree that I shall retain it on loan. Here too it was conceded that possession and therefore ownership^{^[49]}^{^[50]} passed, but the line to be drawn is even finer, for there has been no physical transfer at all. But the argument is irresistible: if I buy your land of which X is tenant, I can acquire possession of the land by agreeing with X that he shall continue in occupation as my tenant; it can make no difference if you and X are the same person, i.e. if you are in occupation of the land yourself and I agree that you shall continue in occupation as my tenant. The difference between this and conveyance by consent, however, lies in the requirement that there must be some definite transaction, such as hire or loan or the grant of a usufruct, under which you remain in occupation on my behalf. It is not sufficient that we should merely agree that you remain. This is a very fine line indeed. If I sell you my book and we agree simply that I shall keep it until you want it, we achieve nothing, but if we agree that I shall keep it on loan, then possession and ownership pass. The way was open to conveyance by consent, and the practitioners of the later Empire evidently followed it. Documents of sale survive in which the seller reserves to himself a usufruct for a short time. Diocletian indeed protests that ownership passes by delivery and not by simple agreement, and Constantine requires a public announcement to the neighbours, but evidently to no purpose. The essential of a conveyance is now the agreement, and, since the agreement will usually be embodied in a document, the conveyance comes to be identified, as it is in modern English law, with the document. It is here that mancipatio and traditio meet and merge in a single documentary conveyance.

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

DERIVATIVE MODES CONVEYANCES

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