ORIGINAL CIVIL MODE PRESCRIPTION

Introductory—limitation and prescription. In modern systems of law a man’s legal position may be affected by lapse of time in two main ways, which are sometimes distinguished in English legal language as limitation and prescription, though the terminology is not fixed.

By contrast, in a system of prescription the right itself is affected.

The civil law had a system of acquisitive prescription {usucapio) with very short periods, but had in principle no limitation at all.

Usucapio. The Twelve Tables laid down a period of two years for the usucapion of land and one year for movables. These very short periods may seem surprising in a system which otherwise denies any effect to the lapse of time and gives unquestioning protection to vested rights, but usucapion requires much else besides just the lapse of time, and its scope is therefore very restricted. It serves, in fact, two main purposes, to cure a defect in the mode by which the thing was conveyed {traditio of a res mancipi),³ and to cure a defect in the title of the person who con­veyed it (e.g. sale by a non-owner). To achieve these purposes five requirements must be satisfied. The person claiming to usucapt must have had uninterrupted possession for the requisite period; the possession must have been acquired both ex iusta causa and in good faith; the thing must be capable of being owned (not, for example, a free man believed to be a slave); and it must not at any time have been stolen or taken by force.

The requirements of iusta causa (also referred to as iustus titulus') and bona fides are related.

¹                                                                                                                                                                                                                                                            lang=EN-US>See below.       ² Below, pp. 129 f.

³              It is convenient to include under this head cases in which possession was taken under an order of the Praetor and ripened into ownership if held for the requisite period, in particular the grant of bonorum possessio to the ‘Praetorian heir’ (below, pp.

defined as some transaction by virtue of which the possessor would have become owner but for one or both of the defects already mentioned. For example, if you sell and deliver to me your slave, the ‘cause’ is the sale; if you give me a ring which unknown to either of us belongs to X, the ‘cause’ is the gift. In each case I would have been owner but for the defect—lack of mancipatio in the first case, lack of title in you in the second— which it is the function of usucapion to cure. Sale or gift are the commonest ‘causes’, but there are many others, such as legacy, dowry, or a promise by stipulation. The ‘cause’, unlike that of traditio, must be real. It was not enough that I thought there was a sale or a legacy if in fact there was none. Indeed if such a merely putative ‘cause’ had sufficed, it would have been hardly possible to distinguish the requirement of iusta causa from that of bonafides. Good faith is never easy to define, and this is no excep­tion. In the case of the acquirer from a non-owner it would usually amount to a belief that he had become owner, i.e. that his taking of possession ex iusta causa had given him full title. In the case of the acquirer of a res mancipi by traditio it could hardly have any meaning at all, since he must know that he is not owner. In neither case, however, was proof of good faith either called for or indeed possible: it was for the person disputing usucapion to prove bad faith. And he would have to show not simply that the possessor was in bad faith at the time of the action, but that he was in bad faith at the moment when he acquired possession. For supervening bad faith was no bar to usucapion. If I bought from you a ring and neither of us then knew that it belonged to X, but immediately after I had taken possession of it I discovered the truth, I might nevertheless usucapt.

The most restrictive requirement, however, is the last.

We are driven to the conclusion that, apart from the curing of the formal defect in the title of the acquirer of a res mancipi by traditio and other similar holders, the rules of usucapion must usually have served to create not a definitive method of acquir­ing ownership, but a method of shifting the burden of proof. A person who had acquired possession ex iusta causa and had remained in possession for the requisite period could reasonably claim that it was for the person who disputed his title to show that he had acquired in bad faith or that the thing had been stolen or taken by force. It is in fact a compromise between the Roman dislike of interference with vested rights and the practical need to give some recognition to established facts. It is a com­promise which is achieved by forgoing the absolute certainty in matters of property rights which is the advantage of a strict rule of prescription.¹

The bonitary owner and the bona fide possessor. The rules of usucapion in effect marked off two classes of possessor as potential owners —the possessor whose title was only formally defective, typified by the recipient of a res mancipi by traditio, and the possessor whose title was substantially defective because derived from a non-owner. The former is called the ‘bonitary owner’^{[58] [59]} and the latter the 'bona fide possessor’. By the civil law, however, their rights were no more than potential. Until usucapion was com­plete they were protected only by the interdicts which were available to any possessor; and these, as we have seen,^[60] lay only against the immediate dispossessor. In this state of the law the Praetor intervened, probably in the late Republic. His policy was different in the two cases. The bonitary owner was to be protected against everyone, including the owner; the bona fide possessor was to be protected against everyone except the owner. If one considers the possible situations, this policy and the methods adopted to give effect to it explain themselves. There are essentially two situations.

(i) The person on the way to usucapion is still in possession, but the thing is claimed from him. The claim can only be a vindicatio and only the owner therefore can hope to succeed. He must obviously be allowed to succeed against the bona fide possessor, since otherwise the Praetor would in effect be allowing usucapion without even the short periods of time required by the civil law. On the other hand, to allow him to succeed against the bonitary owner would be to allow him to take advantage of a technicality to upset a conveyance which ex hypothesi he himself has voluntarily made; and the consistent policy of the Praetor was to dispense with unnecessary formalities. The defendant is therefore allowed to insert in the vindicatio a defence (exceptio rei venditae et traditae} requiring the judge to acquit him if the thing was sold and delivered to him by the plaintiff. This defence can obviously only be made good by a bonitary owner, and the Praetor’s object is therefore achieved.

(ii) The person on the way to usucapion loses possession of the thing, but wishes to claim it from the present possessor. For example, P is on the way to usucapion when T takes the thing from him and gives it to D. (If the thing were still in the posses­sion of T, P would be adequately protected by the ordinary law, since he could bring a possessory interdict on the ground simply that T had taken the thing out of his possession.) Here the Praetor’s policy must differ according both to whether P is a bonitary owner or a bona fide possessor and to whether D is or is not the owner. If D is the owner, then the same considerations apply as in the previous situation: P must succeed if he is a bonitary owner and must fail if he is a bona fide possessor. If D is not the owner, P must succeed in either case, since his claim is at least preferable to that of D. This policy cannot, however, be put into effect as simply as it can be stated. For we have been assuming that the Praetor knows what the nature of the plaintiff’s title is and whether the defendant is owner or not, and yet it is precisely these issues which the action may have to settle. The action must be so formulated that the right result will follow whichever of the four possible alternatives emerges from the hearing. This action provides a good example of Praetorian methods and therefore merits a more detailed examination.

The action derives its name, actio Publiciana, from the other­wise unknown Praetor who first allowed it. It is essentially a vindicatio in which the necessary lapse of time is fictitiously presumed. The formula begins with an assertion by the plaintiff that if he had continued in possession of the thing for one year, or two, he would have been owner. (‘If the plaintiff would be owner of the thing, which was sold and delivered to him, if he had held it for a year [or two years].’) Nothing but the lapse of time is presumed. The plaintiff must prove, in so far as they can be proved, the other requisites of usucapio. This he will be able to do in either of the situations we are envisaging. There then follows a defence (exceptio iusti dominii) asserting that the defen­dant is the true owner (‘then, unless the defendant is owner’). If the defendant can substantiate this assertion, the plaintiff will now fail. This is the desired result if the plaintiff is only a bona

fide possessor, but not if he is a bonitary owner. The formula therefore contains, before the final order to condemn or acquit, a further reply by the plaintiff (replicatio rei venditae et traditae) asserting, in the same way as in situation (i) above, that the defendant sold and delivered the thing to him (‘and even then if the defendant sold and delivered the thing to the plaintiff, let the judge condemn..        &c., as in the ordinary vindicatio}. This

will enable the bonitary owner finally to prevail, but will be of no assistance to the bona fide possessor.¹

The Praetor, though he had in form only added one more action to the list in the Edict, had in substance done much more. He had abolished the need for mancipatio and had trans­formed Roman ownership. Henceforward the recipient of a res mancipi by traditio was for nearly all practical purposes in the position of an owner.^{[61] [62]} The civil law owner (dominus ex iure Quiritium) retained almost nothing but the bare name. This however he did retain. For the Romans could not bring them­selves to call the bonitary owner a dominus. They preferred a circumlocution: he had the thing among his goods—in bonis. It was left to the Byzantine jurists to coin from this the term ‘bonitary’. This reluctance to abandon old ways of thinking and speaking was matched by an equal reluctance in the practice of conveyancing to take advantage of the Praetorian reform and abandon the use of mancipatio.

The transformation of ownership was, however, wider than this. Ownership in the civil law (dominium ex iure Quiritium) was unique and indivisible. A man was either owner or not owner. His title must be good against the whole world or against no one. Hence the bonitary owner or the bona fide possessor had, as far as the civil law was concerned, no better title than a mere possessor. But the effect of the actio Publiciana was to create two other forms of what could have been called Praetorian owner­ship. Bonitary ownership differed indeed only technically from dominium and could have been reconciled with the uniqueness of ownership if the Romans had been prepared to give theoretical recognition to the fact that traditio of a res mancipi passed owner­ship. Justinian in fact, as we have seen, did so,¹ and bonitary ownership has disappeared from the Corpus luris. But the essence of bona fide possession was its relativity—it was good against everyone except the true owner.² The Romans never adjusted their conception of dominium to allow for this relative ownership, preferring to turn a blind eye to its existence by simply denying to it the name of ownership.³

Justinian's reforms. Usucapion, being a civil mode, applied only to things capable of Roman ownership and therefore not to provincial land,⁴ and was only available to Roman citizens. The gap was filled by the institution of longi temporis praescriptio (long term prescription), of which we first hear in an imperial constitution of a.d. 199. This was originally not pre­scription, but merely limitation. By the time of Justinian, how­ever, it had become, like usucapion, a mode of acquisitive prescription, but the time required was much longer: ten years if the parties were in the same district, twenty if they were not.

Theodosius, as has been said above,⁵ introduced a general limitation period of thirty years, and Justinian made other changes. When he came to the throne, Italy was in the hands of the barbarians, and usucapion therefore applied in practice only to movables and to such land as enjoyed the privilege of the ius italicumfi Correspondingly, since the citizenship was uni­versal, longi temporis praescriptio applied in practice only to land. He therefore gave the name of usucapio to the acquisition of movables, but with the period extended to three years, and gave the name of longi temporis praescriptio, with the same periods as before, to land. He also created a new form of acquisitive pre­scription. Anyone who had acquired a thing in good faith, even if without iusta causa, and had held it for thirty years, now became owner. The commentators gave this the name of longissimi temporis praescriptio (very long term prescription). It applied even if the

¹    By abolishing the distinction between res mancipi and nec mancipi (above, p. 106).

² The term ‘bona fide possessor’, as used here, is consecrated by usage, but can be misleading. It is a shortened version of the full Latin term, bonae fidei possessor in via usucapiendi, but obviously not every bona fide possessor is on the way to usucapion.

³ Gaius does recognize that ownership is divided, but he seems to have been alone in this. The terminology and the conception of dominium remained unaffected.

⁴     See above, p. 105, n. 4.                            ^s p. 122.

thing had been at some time stolen, and so it was now possible after thirty years, as it had never been before, to be certain of me’s ownership of movables.

¹              Above, pp. 103 ff.

²              ‘Nemo plus mris transferre potest quam ipse habe or, in English law’s more succinct but less accurate version, ‘Nemo dat quod nonhabet’.

³ Above, pp. 104 ft.

I sell and deliver it to X, a bona fide purchaser, X will acquire title, and your only remedy will be against me. The justification for such a drastic restriction of ownership is that in a modern commercial society, which depends for its existence on the rapid movement of goods, it is more important that the purchaser should be freed of the necessity to investigate the title to the goods which he buys than that the owner should be protected in the enjoyment of his absolute title. This is once again a case of two innocent parties one of whom must suffer, and modern systems find that the balance of convenience lies in placing the loss on the owner. Roman law thought otherwise. English law, traditionally as jealous of the owner’s rights as Roman law, now occupies an intermediate position. It is gradually introducing a system of registration of title to land, and in regard to movables it allows a number of rather arbitrary exceptions to the principle of inviolability without going to the length of modern Civil law.